Judgment of the Court (First Chamber) of 26 May 2005 in Case C-465/03: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz Kretztechnik AG v Finanzamt Linz (Sixth VAT Directive — Supplies for consideration — Share issue — Admission of a company to a stock exchange — Deductibility of VAT)
Date: 2005-09-03
Institutions: Court of Justice
Subjects: VAT, company with share capital, interpretation of the law, provision of services, tax harmonisation

C 217/14

EN

Official Journal of the European Union

3.9.2005

1. The theft of goods does not constitute a supply of goods for
consideration within the meaning of Article 2 of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the Member States relating to turnover taxes —
the laws of
Common system of value added tax: uniform basis of assessment,
and therefore cannot as such be subject to value added tax. The
circumstance that goods are,
issue in the main
proceedings, subject to excise duty does not affect that conclusion.

like those at

Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a
judgment on 16 June 2005, in which it:

1. Declares that, by having failed to adopt the laws, regulations and
administrative provisions necessary to comply with Articles 3(1),
5(2), 6(2) and 8 to 12 of Directive 98/44/EC of the European
Parliament and of the Council of 6 July 1998 on the legal protec-
tion of biotechnological inventions, the Italian Republic has failed
to fulfil its obligations under Article 15 of that directive;

2. An authorisation to apply measures facilitating monitoring of the
charging of value added tax, granted to a Member State on the
basis of Article 27(5) of the Sixth Directive 77/388, does not
empower that State to subject transactions to that tax other than
those set out in Article 2 of the Directive. Such an authorisation
thus cannot provide a legal basis for national legislation subjecting
to value added tax the theft of goods from a tax warehouse.

2. Dismisses the action as to the remainder;

3. Orders the Italian Republic to bear all the costs.

(1) OJ C 304 of 13.12.2003.

(1) OJ C 7 of 10.1.2004.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 16 June 2005

(First Chamber)

of 26 May 2005

in Case C-456/03: Commission of the European Commu-
nities v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
98/44/EC — Legal protection of biotechnological inventions
— Admissibility — Failure to transpose — Articles 3(1),
5(2), 6(2) and 8 to 12)

in Case C-465/03: Reference for a preliminary ruling from
the Unabhängiger Finanzsenat, Außenstelle Linz Kretz-
technik AG v Finanzamt Linz (1)

(Sixth VAT Directive — Supplies for consideration — Share
issue — Admission of a company to a stock exchange —
Deductibility of VAT)

(2005/C 217/26)

(Language of the case: Italian)

(2005/C 217/27)

(Language of the case: German)

In Case C-456/03, Commission of the European Communities
(Agent: K. Banks) v Italian Republic (Agent:
I.M. Braguglia,
assisted by P. Gentili, avvocato dello Stato) — action under
Article 226 EC for failure to fulfil obligations, brought on 27
October 2003 — the Court (Third Chamber), composed of A.
Rosas, President of the Chamber, J.P. Puissochet, S. von Bahr,
U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; D. Ruiz-

In Case C-465/03: reference for a preliminary ruling under
Article 234 EC from the Unabhängiger Finanzsenat, Außen-
stelle Linz (Austria), made by decision of 20 October 2003,
received at the Court on 5 November 2003, in the proceedings
between Kretztechnik AG and Finanzamt Linz, the Court (First
Chamber), composed of P. Jann, President of the Chamber, K.
Lenaerts (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E.
Levits,
Jacobs, Advocate General; M.-F. Contet,
Principal Administrator, for the Registrar, gave a judgment on
26 May 2005, the operative part of which is as follows:

Judges; F.G.

3.9.2005

EN

Official Journal of the European Union

C 217/15

1. A new share issue does not constitute a transaction falling within
the scope of Article 2(1) of Sixth Council Directive (77/388/EEC)
of 17 May 1977 on the harmonisation 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.

the laws of

2. Article 17(1) and (2) of Sixth Directive 77/388, as amended by
Directive 95/7, confer the right to deduct in its entirety the VAT
charged on the expenses incurred by a taxable person for the
various supplies acquired by him in connection with a share issue,
provided that all the transactions undertaken by the taxable person
in the context of his economic activity constitute taxed transac-
tions.

The condition for obtaining a differentiated export refund laid down
in Article 17(3) of Commission Regulation (EEC) No 3665/87 of
27 November 1987 laying down common detailed rules for the
application of the system of export refunds on agricultural products,
as amended by Commission Regulation (EC) No 1384/95 of 19
June 1995, as regards in particular the adjustments necessary for the
implementation of the Uruguay Round Agreement on Agriculture,
namely clearance through customs for release of the product concerned
for consumption in the non-member country of destination, is fulfilled
where that product, on which import duties were paid in that country,
undergoes substantial processing or working there within the meaning
of Article 24 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code, even if the
product deriving from such processing or working is then re-exported
to the Community, with reimbursement of the duties levied in that
country and payment of customs import duties in the Community.

(1) OJ C 47 of 21.02.2004.

JUDGMENT OF THE COURT

(Third Chamber)

of 21 July 2005

in Case C-515/03:
Finanzgericht Hamburg)

(Reference for a preliminary ruling,
in Eichsfelder Schlachtbetrieb

GmbH v Hauptzollamt Hamburg-Jonas (1)

(Agriculture — Common organisation of the markets —
Export refunds — Conditions for granting them — Import of
the product into the non-member country of destination —
Meaning — Customs formalities for release for consumption
in the non-member country — Substantial processing or
working — Reimportation into the Community — Abuse of
law)

(2005/C 217/28)

(Language of the case: German)

In Case C-515/03: reference for a preliminary ruling under
Article 234 EC from the Finanzgericht Hamburg (Germany),
made by decision of 12 November 2003, received at the Court
on 9 December 2003, in the proceedings between Eichsfelder
Schlachtbetrieb GmbH and Hauptzollamt Hamburg-Jonas —
the Court (Third Chamber), composed of A. Rosas, President of
the Chamber, J.-P. Puissochet (Rapporteur), S. von Bahr, J. Male-
novský and U. Lõhmus, Judges; D. Ruiz-Jarabo Colomer, Advo-
cate General; K. Sztranc, Administrator, for the Registrar, gave
a judgment on 21 July 2005, in which it ruled:

In those circumstances, reimbursement of the export refund may never-
theless be required if the national court considers that evidence of an
abusive practice on the part of the exporter has been produced,
in
accordance with the rules of national law.

(1) OJ C 59 of 06.03.2004.

JUDGMENT OF THE COURT

(First Chamber)

of 21 July 2005

in Case C-30/04: Reference for a preliminary ruling from
the Tribunale di Bolzano in Ursel Koschitzki v Istituto
nazionale della previdenza sociale (INPS) (1)

(Social security for migrant workers — Regulation (EEC)
No 1408/71 — Old-age pension — Calculation of the theore-
tical amount of benefit — Inclusion of the amount necessary
to reach the minimum pension under national legislation)

(2005/C 217/29)

(Language of the case: Italian)

In Case C-30/04: reference for a preliminary ruling under
Article 234 EC from the Tribunale di Bolzano (Italy), made by
decision of 9 January 2004, received at
the Court on 28
January 2004, in the proceedings between Ursel Koschitzki and