Judgment of the Court (Third Chamber) of 26 May 2005 in Case C-498/03: Reference for a preliminary ruling from the VAT and Duties Tribunal, London in Kingscrest Associates Ltd, Montecello Ltd v Commissioners of Customs and Excise (Sixth VAT Directive — Article 13A(1)(g) and (h) — Exempt transactions — Supplies closely linked to welfare and social security work — Supplies closely linked to the protection of children and young persons — Supplies made by bodies other than those governed by public law and recognised as charitable by the Member State concerned — Private, profit-making entity — Meaning of ‘charitable’)
Date: 2005-07-23
Institutions: Court of Justice
Subjects: VAT, basis of tax assessment, interpretation of the law, provision of services, tax exemption

C 182/12

EN

Official Journal of the European Union

23.7.2005

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 26 May 2005

in Case C-478/03: Reference for a preliminary ruling from
the House of Lords in Celtec Ltd v John Astley and
Others (1)

(Directive 77/187/EEC — Article 3(1) — Safeguarding of
employees' rights in the event of transfers of undertakings —
Transferor's rights and obligations arising from a contract of
employment or from an employment relationship existing on
the date of a transfer — Meaning of ‘date of a transfer’)

(2005/C 182/22)

(Language of the case: English)

In Case C-478/03: reference for a preliminary ruling under
Article 234 EC from the House of Lords (United Kingdom),
made by decision of 10 November 2003, received at the Court
on 17 November 2003, in the proceedings between Celtec Ltd
and John Astley and Others — the Court (First Chamber),
composed of P. Jann, President, K. Lenaerts (Rapporteur), N.
Colneric, E. Juhász and E. Levits, Judges; M. Poiares Maduro,
Advocate General; L. Hewlett, Principal Administrator, for the
Registrar, gave a judgment on 26 May 2005, in which it ruled:

1. Article 3(1) of Council Directive 77/187/EEC of 14 February
1977 on the approximation of the laws of the Member States
relating to the safeguarding of employees' rights in the event of
transfers of undertakings, businesses or parts of businesses must be
interpreted as meaning that the date of a transfer within the
meaning of that provision is the date on which responsibility as
employer for carrying on the business of the unit transferred moves
from the transferor to the transferee. That date is a particular
point in time which cannot be postponed to another date at the
will of the transferor or transferee.

(Third Chamber)

of 26 May 2005

in Case C-498/03: Reference for a preliminary ruling from
the VAT and Duties Tribunal, London in Kingscrest
Associates Ltd, Montecello Ltd v Commissioners of
Customs and Excise (1)

(Sixth VAT Directive — Article 13A(1)(g) and (h) —
Exempt transactions — Supplies closely linked to welfare and
social security work — Supplies closely linked to the protec-
tion of children and young persons — Supplies made by
bodies other than those governed by public law and recog-
nised as charitable by the Member State concerned —
Private, profit-making entity — Meaning of ‘charitable’)

(2005/C 182/23)

(Language of the case: English)

the Court on 26 November 2003,

In Case C-498/03: Reference for a preliminary ruling under
Article 234 EC from the VAT and Duties Tribunal, London
(United Kingdom), made by decision of 10 June 2003, received
at
in the proceedings
between Kingscrest Associates Ltd, Montecello Ltd and
Commissioners of Customs and Excise — the Court (Third
Chamber), composed of A. Rosas, President of the Chamber, A.
Borg Barthet, A. La Pergola, J. Malenovský and A. Ó Caoimh
(Rapporteur),
Judges; D. Ruiz-Jarabo Colomer, Advocate
General; L. Hewlett, Principal Administrator, for the Registrar,
gave a judgment on 26 May 2005, the operative part of which
is as follows:

2. For the purposes of applying that provision, contracts of employ-
ment or employment relationships existing on the date of the
transfer within the meaning stated in paragraph 1 of the operative
part between the transferor and the workers assigned to the under-
taking transferred are deemed to be handed over, on that date,
from the transferor to the transferee, regardless of what has been
agreed between the parties in that respect.

1. The word ‘charitable’ in the English version of Article 13A(1)(g)
and (h) 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 is a concept with its own independent meaning
in Community law which must be interpreted taking account of all
the language versions of that directive.

(1) OJ C 21of 24.01.2004.

2. The meaning of

‘organisations recognised as charitable by the
Member State concerned’
in Article 13A(1)(g) and (h) of the
Sixth Directive 77/388 does not exclude private profit-making
entities.

23.7.2005

EN

Official Journal of the European Union

C 182/13

3. It is for the national court to determine, having regard, in particu-
lar, to the principles of equal treatment and fiscal neutrality, and
taking account of the content of the supplies of services in ques-
tion, as well as the conditions for making them, whether the recog-
nition of a private profit-making entity, which as such does not
have charitable status under domestic law, as charitable for the
purposes of the exemptions under Article 13A(1)(g) and (h) of the
Sixth Directive 77/388 exceeds the discretion granted by those
provisions to the Member States for the purposes of such recogni-
tion.

(1) OJ C 21 of 24.01.2004.

JUDGMENT OF THE COURT

(Second Chamber)

of 26 May 2005

in Case C-536/03: Reference for a preliminary ruling from
the Supremo Tribunal Administrativo António Jorge Lda v
Fazenda Pública (1)

(VAT — Article 19 of the Sixth VAT Directive — Deduction
of input tax — Property transactions — Goods and services
used for both taxable and exempt transactions — Deductible
proportion)

(2005/C 182/24)

(Language of the case: Portuguese)

In Case C-536/03: reference for a preliminary ruling under
Article 234 EC from the Supremo Tribunal Administrativo
(Portugal), made by decision of 26 November 2003, received at
the Court on 22 December 2003, in the proceedings between
António Jorge Lda and Fazenda Pública — the Court
(Second Chamber), composed of C.W.A. Timmermans, Presi-
dent of the Chamber, R. Silva de Lapuerta (Rapporteur),
J.
Makarczyk, P. Kūris and G. Arestis, Judges; C. Stix-Hackl, Advo-
cate General; R. Grass, Registrar, has given a judgment on 26
May 2005, the operative part of which is as follows:

It is contrary to Article 19(1) of 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 — to include, in the denominator of
the fraction making it possible to calculate the deductible proportion,
the value of work in progress carried out by a taxable person in the
course of civil construction activity, where that value does not corre-
spond to the supply of goods or the provision of services which has
already been made by the taxable person or which has given rise to

statements of account of work and/or the receipt of payments on
account.

(1) OJ C 47 of 21.02.2004.

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 June 2005

in Case C-543/03: Reference for a preliminary ruling from
the Oberlandesgericht Innsbruck in Christine Dodl, Petra
Oberhollenzer v Tiroler Gebietskrankenkasse (1)

(Regulations (EEC) Nos 1408/71 and 574/72 — Family
benefits — Child-raising allowance — Entitlement to benefits
of the same kind in the Member State of employment and the
Member State of residence)

(2005/C 182/25)

(Language of the case: German)

In Case C-543/03: reference for a preliminary ruling under
Article 234 EC from the Oberlandesgericht (Higher Regional
Court) Innsbruck (Austria), made by decision of 16 December
2003, received at the Court on 29 December 2003,
in the
proceedings between Christine Dodl, Petra Oberhollenzer
and Tiroler Gebietskrankenkasse — the Court
(Grand
Chamber), composed of V. Skouris, President, P. Jann, C.W.A.
Timmermans and A. Rosas, Presidents of Chambers, C.
Gulmann,
J.
Makarczyk, P. Kūris, E. Juhász, U. Lõhmus, E. Levits and A. Ó
Caoimh, Judges; L.A. Geelhoed, Advocate General; K. Sztranc,
Administrator, for the Registrar, gave a judgment on 7 June
2005, in which it ruled:

J.-P. Puissochet, K. Schiemann (Rapporteur),

1. A person has the status of an employed or self-employed person
within the meaning of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to members of
their families moving within the Community, as amended and
updated by Regulation (EC) No 1386/2001 of the European
Parliament and of
the Council of 5 June 2001 where he is
covered, even if only in respect of a single risk, on a compulsory or
optional basis, by a general or special social security scheme
mentioned in Article 1(a) of that regulation, irrespective of the
existence of an employment relationship. It is for the national
court to make the necessary enquiries to determine whether the
claimants in the main proceedings belonged to a branch of the
Austrian social security system during the periods in respect of
which the allowances in issue were applied for and, accordingly,
whether
they were 'employed persons' within the meaning of
Article 1(a).