Judgment of the Court (Second Chamber) of 10 March 2005 in Case C-22/03 Reference for a preliminary ruling from the Rechtbank te Rotterdam: Optiver BV and Others v Stichting Autoriteit Financiële Markten (Directive 69/335/EEC — Indirect taxes on the raising of capital — Duty on the gross profits of securities intermediaries)
Date: 2005-05-14
Institutions: Court of Justice
Subjects: interpretation of the law, securities, tax collection, tax on profits of self-employment

14.5.2005

EN

Official Journal of the European Union

C 115/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

2. Article 13B(b)(2) of Sixth Directive 77/388, as amended by
Directive 92/111, must be interpreted as meaning that the defini-
tion of ‘vehicles’ includes boats.

(Third Chamber)

of 3 March 2005

(1) OJ C 55 of 08.03.2003.

in Case C-428/02 (Reference for a preliminary ruling from
the Vestre Landsret) Fonden Marselisborg Lystbådehavn v
Skatteministeriet, and Skatteministeriet v Fonden Marselis-
borg Lystbådehavn (1)

(Sixth VAT Directive — Article 13B(b) — Exemptions —
Leasing of immovable property — Letting of premises and
sites for parking vehicles — Mooring berths for boats —
Land storage sites for boats)

(2005/C 115/01)

(Language of the case: Danish)

In Case C-428/02: reference for a preliminary ruling under
Article 234 EC from the Vestre Landsret (Denmark), made by
decision of 15 November 2002, received at
the Court on
26 November 2002, in the proceedings Fonden Marselisborg
and Skatteministeriet v
Lystbådehavn v Skatteministeriet,
Fonden Marselisborg Lystbådehavn — the Court
(Third
Chamber), composed of A. Rosas, President of the Chamber, A.
Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus
J. Kokott, Advocate General; H. von
(Rapporteur),
Holstein, Deputy Registrar, gave a judgment on 3 March 2005,
the operative part of which is as follows:

Judges;

1. Article 13B(b) 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, as amended by Council Directive
92/111/EEC of 14 December 1992, must be interpreted as
meaning that the concept of letting of immovable property includes
the letting of both water-based mooring berths for pleasure boats
and land sites for storage of boats on port land.

JUDGMENT OF THE COURT

(Second Chamber)

of 10 March 2005

in Case C-22/03 Reference for a preliminary ruling from
the Rechtbank te Rotterdam: Optiver BV and Others v
Stichting Autoriteit Financiële Markten (1)

(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Duty on the gross profits of securities intermedi-
aries)

(2005/C 115/02)

(Language of the case: Dutch)

In Case C-22/03: reference for a preliminary ruling under
Article 234 EC from the Rechtbank te Rotterdam (Netherlands),
made by decision of 21 January 2003, received at the Court on
23 January 2003, in the proceedings pending before that court
between Optiver BV and Others and Stichting Autoriteit Finan-
ciële Markten, successor in title to the Stichting Toezicht Effec-
tenverkeer — the Court
(Second Chamber), composed of
C.W.A. Timmermans, President of the Chamber, R. Silva de
Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis,
Judges; D. Ruiz-Jarabo Colomer, Advocate General, M.-F.
Contet, Principal Administrator, for the Registrar, gave a judg-
ment on 10 March 2005, the operative part of which is as
follows:

C 115/2

EN

Official Journal of the European Union

14.5.2005

Council Directive 69/335/EEC of 17 July 1969 concerning indirect
taxes on the raising of capital is to be interpreted as meaning that it
does not preclude the levying on securities intermediaries of a duty,
such as that at issue in the main proceedings, on the gross profits
from activities related to those securities.

direct and immediate link between the payments made and the
commercial activity and that the absence of any fraudulent or abusive
intent has been established.

(1) OJ C 83 of 05.04.2003.

(1) OJ C 70 of 22.03.2003.

JUDGMENT OF THE COURT

(Third Chamber)

of 3 March 2005

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-32/03 (reference for a preliminary ruling from
the Højesteret): I/S Fini H v Skatteministeriet (1)

in Case C-33/03: Commission of the European Commu-
nities v United Kingdom of Great Britain and Northern
Ireland (1)

(Sixth VAT Directive — Status of taxable person — Right to
deduct — Winding up — Direct and immediate link —
Transactions forming part of the economic activity as a
whole)

(Failure of a Member State to fulfil its obligations — Articles
17 and 18 of the Sixth VAT Directive — Provision of
national law under which an employer may deduct VAT on
supplies of fuel to his employees when reimbursing their fuel
costs)

(2005/C 115/03)

(Language of the case: Danish)

(2005/C 115/04)

(Language of the case: English)

In Case C-32/03: reference for a preliminary ruling under
Article 234 EC from the Højesteret (Denmark), made by deci-
sion of 22 January 2003, received at the Court on 28 January
2003, in the proceedings I/S Fini H v Skatteministeriet — the
Court: (Third Chamber) composed of A. Rosas, President of the
Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and
U. Lõhmus (Rapporteur), Judges; F.G. Jacobs, Advocate General,
H. von Holstein, Deputy Registrar, for the Registrar, gave a
judgment on 3 March 2005, the operative part of which is as
follows:

Article 4(1) to (3) of the 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, as amended by Council Directive
95/7/EC of 10 April 1995, is to be interpreted as meaning that a
person who has ceased an economic activity but who, because the
lease contains a non-termination clause, continues to pay the rent and
charges on the premises used for that activity is to be regarded as a
taxable person within the meaning of that article and is entitled to
deduct the VAT on the amounts thus paid, provided that there is a

In Case C-33/03, action under Article 226 EC for failure to
fulfil obligations, brought before the Court on 28 January 2003
— Commission of the European Communities (Agent: R.
Lyal) v United Kingdom of Great Britain and Northern
Ireland (Agents: P. Ormond and C. Jackson, assisted by N.
Pleming QC) — the Court (First Chamber), composed of P.
Jann, President of the Chamber, K. Lenaerts (Rapporteur), N.
Colneric, K. Schiemann and E. Juhász, Judges; C. Stix-Hackl,
Advocate General; M.-F. Contet, Principal Administrator, for
the Registrar, has given a judgment on 10 March 2005,
in
which it:

1. Declares that, by granting taxable persons the right to deduct
value added tax on certain supplies of fuel to non-taxable persons,
contrary to the provisions of Articles 17(2)(a) and 18(1)(a) of
Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to turn-
over taxes — Common system of value added tax: uniform basis
of assessment, the United Kingdom of Great Britain and Northern
Ireland has failed to fulfil its obligations under that directive;