Case C-128/05: Action brought on 18 March 2005 by the Commission of the European Communities against the Republic of Austria
Date: 2005-07-23
Institutions: Court of Justice
Subjects: Austria, European Commission, VAT, action for failure to fulfil an obligation, basis of tax assessment, carriage of passengers, international transport, tax exemption, turnover

23.7.2005

EN

Official Journal of the European Union

C 182/21

ORDER OF THE COURT

ORDER OF THE COURT

(Fourth Chamber)

of 10 March 2005

in Case C-178/04: Reference for a preliminary ruling from
the Bundesverwaltungsgericht in Franz Marhold v Land
Baden-Württemberg (1)

(Article 104(3) of the Rules of Procedure — Workers —
Civil servants working for employers in the national public
sector — University professor — Grant of an annual special
allowance)

(2005/C 182/39)

(Language of the case: German)

In Case C-178/04: reference for a preliminary ruling under
Article 234 EC from the Bundesverwaltungsgericht
(Federal
Administrative Court)
(Germany), made by decision of 28
January 2004, received at the Court on 15 April 2004, in the
proceedings between Franz Marhold and Land Baden-Würt-
temberg — the Court
(Fourth Chamber), composed of K.
Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and
E. Levits (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, made an order on 10 March 2005, the
operative part of which is as follows:

Article 39 EC precludes a national law which refuses the right to an
annual special allowance to a civil servant who leaves his employment
before 31 March of the following year in order to take up employment
in the civil service of another Member State, although it grants the
right to such an allowance where the civil servant's new post is within
the national civil service.

(1) OJ C 156 of 12. 06. 2004.

(Fourth Chamber)

of 22 February 2005

in Case C-480/04: Reference for a preliminary ruling from
the Tribunale di Viterbo in criminal proceedings against
Antonello D'Antonio (1)

(Reference for a preliminary ruling — Inadmissibility)

(2005/C 182/40)

(Language of the case: Italian)

In Case C-480/04: reference for a preliminary ruling under
Article 234 EC from the Tribunale di Viterbo (Italy), made by
decision of 2 November 2004, received at the Court on 17
November 2004,
in criminal proceedings against Antonello
D'Antonio — the Court (Fourth Chamber), composed of K.
Lenaerts, President of the Chamber, N. Colneric and K. Schie-
mann (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R.
Grass, Registrar, made an order on 22 February 2005, the
operative part of which is as follows:

The reference for a preliminary ruling made by the Tribunale di
Viterbo by decision of 2 November 2004 is manifestly inadmissible.

(1) OJ C 31 of 5.2.2005.

Action brought on 18 March 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-128/05)

(2005/C 182/41)

(Language of the case: German)

Justice of

An action against the Republic of Austria was brought before
the European Communities on 18
the Court of
March 2005 by the Commission of the European Communities,
represented by Dr. Dimitris Triantafyllou, with an address for
service in Luxembourg.

C 182/22

EN

Official Journal of the European Union

23.7.2005

The applicant claims that the Court should:

is

annual

in Austria

— declare that, by allowing taxable persons not established in
Austria and who transport passengers there not to submit
tax return forms and not to pay the net amount of VAT,
when their
below
turnover
EUR 22 000, in assuming, in this case, that the amount of
VAT owed is equal to the amount of deductible VAT and
that the application of the simplified regulation is contin-
gent on Austrian VAT not being in invoices or in other
documents serving as invoices, the Republic of Austria has
failed to fulfil its obligations under Articles 2, 6, 9(2)(b), 17,
18 and 22(3)
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; (1)

to (5) of

Republic of Austria to tax,
from 1 January 2001 to 31
December 2005, the international transportation of passengers
carried out by taxable persons not established in Austria by
means of motor vehicles not registered in Austria in derogation
from Article 11 of the abovementioned directive. This excep-
tion is, however, expressly based on the condition that the
distance covered in Austria be taxed on the basis of an average
taxable amount per person and per kilometre.

(1) OJ 1977 L 145, p. 1

— order the defendant to pay the costs of the proceedings.

Action brought on 22 April 2005 by the Commission of
the European Communities against Ireland

Pleas in law and main arguments

For international passenger transport by taxable persons estab-
lished in another Member State or in a third country, simplified
rules have been in force in Austria since 1 April 2002. Such
taxable persons are permitted not to submit tax return forms
and not to pay the net amount of VAT, when their annual
turnover in Austria is below 22 000 euros. The rules assume
that,
in this case, the amount of VAT owed is equal to the
amount of deductible VAT. At the same time taxable persons
who take advantage of these simplified rules do not have to
state the Austrian VAT in their invoices or in other documents
serving as invoices.

These rules are neither in accordance with the provisions of
Council Directive 77/388/EEC of 17 May 1977 (‘Sixth VAT
Directive’) nor with Council Decision 2001/242/EC of 19 May
2001.

The Commission submits that the abovementioned directive
does in fact provide for the possibility of a flat-rate scheme for
small enterprises, but the definition of ‘small enterprise’ used
under Austrian rules — turnover in Austria of
less than
EUR 22 000 — does not correspond to the Community law
concept of ‘small enterprise’, which must be given a uniform
the
interpretation.
Austrian flat-rate scheme does not lead to a tax reduction
which exceeds the simplification measure which Article 24(1)
of the abovementioned directive aims to permit. The release
from the other invoicing and tax return obligations and the
duty to keep records further constitutes the formal aspect of
the oversimplification.

furthermore unproven that

remains

It

The Commission claims that the Austrian rules at issue cannot
be accepted on the basis of the abovementioned Council deci-
sion either. This decision does admittedly authorise the

(Case C-183/05)

(2005/C 182/42)

(Language of the case: English)

An action against Ireland was brought before the Court of
Justice of the European Communities on 22 April 2005 by the
Commission of the European Communities, represented by Mr
Michel Van Beek, acting as Agent, assisted by Maître Matthieu
Wemaëre, avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

— declare that, by limiting its transposition into Irish law of
the provisions of Article 12(2) and Article 13(1)(b) of Direc-
tive 92/43/EEC on the conservation of natural habitats and
of wild fauna and flora (1) to those species listed in Annex
IV of the Directive that occur in Ireland, Ireland has failed
to comply with the said Articles 12(2) and 13(1)(b) of this
Directive and with its obligation under the Treaty,

— declare that,

in failing to take all the necessary specific
measures to effectively implement
the system of strict
of Directive
by Article
required
protection
12(1)
92/43/EEC,
Ireland has failed to comply with the said
Article 12(1) of this Directive and with its obligation under
the Treaty,

— declare that, by retaining provisions of Irish legislation that
are inconsistent with the provisions of Articles 12(1) and
16 of Directive 92/43/EEC, Ireland has failed to comply
with the said Articles 12(1) and 16 of this Directive and
with its obligation under the Treaty,

— order Ireland to pay the costs.