Judgment of the Court (Second Chamber) of 17 February 2005 in Joined Cases C-453/02 and C-462/02: (references for a preliminary ruling from the Bundesfinanzhof) Finanzamt Gladbeck v Edith Linneweber and Finanzamt Herne-West v Savvas Akritidis (Sixth VAT Directive — Exemption for games of chance — Determination of the conditions and limitations to which the exemption is subject — Liability of games organised outside public casinos — Respect for the principle of fiscal neutrality — Article 13B( f) — Direct effect)
Date: 2005-04-16
Institutions: Court of Justice
Subjects: VAT, automatic game, game of chance, gaming establishment, interpretation of the law, tax exemption

16.4.2005

EN

Official Journal of the European Union

C 93/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

3. Orders T-Mobile Austria GmbH to pay the costs.

(Grand Chamber)

of 22 February 2005

(1) OJ C 169 of 13.07.2002.

in Case C-141/02 P: Commission of the European Commu-
nities v T-Mobile Austria GmbH (1)

(Appeal — Article 90(3) of the EC Treaty (now Article 86(3)
EC) — Amount of the fees imposed by the Republic of
Austria on operators of GSM networks — Partial rejection of
the complaint — Admissibility)

(2005/C 93/01)

(Language of the case: German)

supported by: French Republic,

In Case C-141/02 P, appeal under Article 49 of the EC Statute
of the Court of Justice, brought on 15 April 2002, Commission
of
the European Communities (Agents: W. Mölls and K.
(Agents: G. de
Wiedner)
Bergues and F. Million) the other parties to the proceedings
being: T-Mobile Austria GmbH, formerly max-mobil Telekom-
munikation Service GmbH, established in Vienna (Austria)
(avocats: A. Reidlinger, M. Esser-Wellié and T. Lübbig),
the Netherlands (H.G. Sevenster) – the Court
Kingdom of
(Grand Chamber), composed of V. Skouris, President of the
Chamber, P. Jann, C.W.A. Timmermans, A. Rosas and A. Borg
Barthet, Presidents of Chambers, J.-P. Puissochet (Rapporteur),
R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský,
J. Klučka and U. Lõhmus, Judges; M. Poiares Maduro, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-
trar, gave a judgment on 22 February 2005, in which it:

1. Sets aside the judgment of 30 January 2002 of the Court of First
in Case T-54/99

the European Communities

Instance of
max.mobil v Commission;

2. Dismisses the action brought by max.mobil Telekommunikation
Service GmbH before the Court of First Instance of the European
Communities;

JUDGMENT OF THE COURT

(Second Chamber)

of 17 February 2005

in Joined Cases C-453/02 and C-462/02: (references for a
preliminary ruling from the Bundesfinanzhof) Finanzamt
Gladbeck v Edith Linneweber and Finanzamt Herne-West
v Savvas Akritidis (1)

(Sixth VAT Directive — Exemption for games of chance —
Determination of the conditions and limitations to which the
exemption is subject — Liability of games organised outside
public casinos — Respect for the principle of fiscal neutrality
— Article 13B( f) — Direct effect)

(2005/C 93/02)

(Language of the case: German)

In Joined Cases C-453/02 and C-462/02: references for a preli-
minary ruling under Article 234 EC from the Bundesfinanzhof
(Germany), made by decisions of 6 November 2002, received
at the Court on 13 and 23 December 2002, in the proceedings
Finanzamt Gladbeck v Edith Linneweber (C-453/02 and Finan-
zamt Herne-West v Savvas Akritidis (C-462/02) – the Court
(Second Chamber), composed of C.W.A. Timmermans, Presi-
dent of the Chamber, C. Gulmann and R. Schintgen (Rappor-
Judges; C. Stix-Hackl, Advocate General; M.F. Contet,
teur)
Administrator,
for the Registrar, gave a judgment on 17
February 2005, the operative part of which is as follows:

C 93/2

EN

Official Journal of the European Union

16.4.2005

1. Article 13B(f) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added tax:
uniform basis of assessment precludes national legislation which
provides that the operation of all games of chance and gaming
machines is exempt from VAT where it is carried out in licensed
public casinos, while the operation of the same activity by traders
other than those running casinos does not enjoy that exemption.

2. Article 13B(f) of the Sixth Directive has direct effect in the sense
that it can be relied on by an operator of games of chance or
gaming machines before national courts to prevent the application
of rules of national law which are inconsistent with that provision.

1. The questions concerning the interpretation of Articles 82 EC, 86

EC, 87 EC and 88 EC are inadmissible;

2. Article 49 EC does not preclude the levying of a tax such as the
municipal tax on advertising imposed by the Decreto legislativo
No 507 – Revisione ed armonizzazione dell'imposta comunale
sulla pubblicità e del diritto sulle pubbliche affissioni (Legislative
Decree No 507 revising and harmonising municipal advertising
tax and bill-posting duty) of 15 November 1993.

(1) OJ C 146 of 21.06.2003.

(1) OJ C 70 of 22.03.2003.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Fifth Chamber)

(Third Chamber)

of 24 February 2005

of 17 February 2005

in Case C-320/04 Commission of the European Commu-
nities v Grand Duchy of Luxembourg (1)

in Case C-134/03: (reference for a preliminary ruling from
the Giudice di pace di Genova-Voltri) Viacom Outdoor Srl
v Giotto Immobilier SARL (1)

(Freedom to provide services — Competition — Bill-posting
services — Domestic legislation imposing a municipal tax on
advertising — Supply by municipalities of a public bill-
posting service — Power of the municipalities to regulate the
supply of bill-posting services — Internal taxation not discri-
minatory)

(2005/C 93/03)

(Language of the case: Italian)

In Case C-134/03: reference for a preliminary ruling under
Article 234 EC from the Giudice di pace di Genova-Voltri
(Italy), by decision of 10 March 2003, received at the Court on
25 March 2003, in the proceedings between Viacom Outdoor
Srl v Giotto Immobilier SARL – the Court (Third Chamber),
composed of A. Rosas (Rapporteur), President of the Chamber,
A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus,
Judges;
J. Kokott, Advocate General; L. Hewlett, Principal
Administrator, for the Registrar, has given a judgment on 17
February 2005, in which it rules that:

(Failure of a Member State to fulfil obligations — Directive
2000/43/EC — Failure to transpose within the prescribed
period)

(2005/C 93/04)

(Language of the case: French)

In Case C-320/04 Commission of the European Commu-
nities (Agent: D. Martin) v Grand Duchy of Luxembourg
(Agent: S. Schreiner) – action for failure to fulfil obligations
under Article 226 EC, brought on 27 July 2004 – the Court
(Fifth Chamber), composed of R. Silva de Lapuerta, President of
the Chamber, J. Makarczyk and J. Klučka (Rapporteur), Judges;
P. Léger, Advocate General; R. Grass, Registrar, gave a judg-
ment on 24 February 2005, in which it:

1. Declares that by failing to adopt the laws, regulations and admin-
istrative provisions necessary to comply with Council Directive
2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or ethnic
origin, the Grand Duchy of Luxembourg has failed to fulfil its
obligations under that directive;