Judgment of the Court (Third Chamber) of  6 October 2005  in Case C-291/03: Reference for a preliminary ruling from the VAT and Duties Tribunal, Manchester, MyTravel plc v Commissioners of Customs & Excise (Sixth VAT Directive — Scheme for travel agents — Package tours — Services bought in from third parties and in-house services — Method of calculating the tax)
Date: 2005-11-26
Institutions: Court of Justice
Subjects: VAT, interpretation of the law, tax system, travel, travel agency

26.11.2005

EN

Official Journal of the European Union

C 296/3

1. Declares that, by failing to adopt

the measures necessary to
comply with the requirements of Annex I to Council Directive
80/778/EEC of 15 July 1980 relating to the quality of water
intended for human consumption, the Portuguese Republic has
failed to fulfil its obligations under Articles 7(6) and 19 of that
directive;

2. Orders the Portuguese Republic to pay the costs.

(1) OJ C 184 of 02.08.2003.

JUDGMENT OF THE COURT

(First Chamber)

of 6 October 2005

in Case C-276/03 P: Scott SA v Commission of the Euro-
pean Communities and French Republic (1)

(Appeal — Unlawful State aid — Temporal application of
Regulation (EC) No 659/1999 — Decision on incompatibility
and recovery of aid — Limitation period — Interruption —
Need to inform the beneficiary of the aid of an interrupting
action)

(2005/C 296/05)

(Language of the case: English)

In Case C-276/03 P: appeal under Article 56 of the Statute of
the Court of Justice, brought on 24 June 2003 by Scott SA,
established in Saint-Cloud (France) (represented by J. Lever QC,
G. Peretz, Barrister, A. Nourry, R. Griffith and M. Papadakis,
Solicitors), the other parties to the proceedings being: Commis-
sion of the European Communities (Agent: J. Flett), and the
French Republic — the Court (First Chamber), composed of P.
Jann (Rapporteur), President of the Chamber, N. Colneric, K.
Schiemann, E. Juhász and E. Levits, Judges; F.G. Jacobs, Advo-
cate General; M.-F. Contet, Principal Administrator,
for the
Registrar, gave a judgment on 6 October 2005, in which it:

1. Dismisses the appeal;

2. Orders Scott SA and the Commission of the European Commu-

nities to bear their own costs.

(1) OJ C 200 of 23. 08.2003.

JUDGMENT OF THE COURT

(Third Chamber)

of 6 October 2005

in Case C-291/03: Reference for a preliminary ruling from
the VAT and Duties Tribunal, Manchester, MyTravel plc v
Commissioners of Customs & Excise (1)

(Sixth VAT Directive — Scheme for travel agents — Package
tours — Services bought in from third parties and in-house
services — Method of calculating the tax)

(2005/C 296/06)

(Language of the case: English)

In Case C-291/03: reference for a preliminary ruling under
Article 234 EC from the VAT and Duties Tribunal, Manchester
(United Kingdom), made by decision of 30 June 2003, received
at the Court on 4 July 2003,
in the proceedings between
MyTravel plc and Commissioners of Customs & Excise — the
Court (Third Chamber), composed of A. Rosas, President of the
Chamber, A. Borg Barthet (Rapporteur), J.-P. Puissochet, S. von
Bahr and U. Lõhmus, Judges; P. Léger, Advocate General; M.
Ferreira, Principal Administrator, for the Registrar, gave a judg-
ment on 6 October 2005, the operative part of which is as
follows:

1. A travel agent or a tour operator who has completed his value
added tax return for a tax period using the method laid down by
the national rules which transpose into domestic law 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
may recalculate his value added tax liability in accordance with the
method held by the Court to comply with Community law, under
the conditions laid down by national law, which have to observe
the principles of equivalence and effectiveness.

2. Article 26 of Sixth Directive 77/388 must be interpreted as
meaning that a travel agent or tour operator who, in return for a
package price, supplies to a traveller services bought in from third
parties and in-house services must, in principle, identify the part of
the package corresponding to his in-house services on the basis of
their market value where that value can be established. In such a
case, a taxable person may use the criterion of actual costs only if
he proves that this criterion accurately reflects the actual structure
of the package. Application of the criterion of market value is not
subject to the condition that it must be simpler than application of
the actual cost method or to the condition that it must produce a
value added tax liability identical or close to that which would
result from using the actual cost method. Accordingly:

— a travel agent or tour operator may not use the market value

method at his own discretion and

C 296/4

EN

Official Journal of the European Union

26.11.2005

— that method is applicable to in-house services whose market
value may be established even if, in the same tax period, the
value of certain in-house components of the package cannot be
established inasmuch as the taxable person does not sell
similar services on a non-package basis.

3. It is for the national tribunal to establish,

in the light of the
circumstances of the main proceedings, the market value of the
flights supplied in the main proceedings as part of package holi-
days. The national tribunal may establish this market value from
average values. In this context, the market based on seats sold to
other tour operators may constitute the most appropriate market.

2. Articles 43 EC and 49 EC, and the principles of equal treatment,
non-discrimination and transparency, are to be interpreted as
precluding a public authority from awarding, without putting it
out to tender, a public service concession to a company limited by
shares which resulted from the conversion of a special undertaking
of
that public authority, whose objects have been extended to
significant new areas, whose capital must obligatorily be opened in
the short term to other capital, the geographical area of whose
activities has been extended to the entire country and abroad, and
whose Administrative Board possesses very broad management
powers which it can exercise independently.

(1) OJ C 213 of 06.09.2003.

(1) OJ C 7 of 10.01.2004.

JUDGMENT OF THE COURT

(First Chamber)

of 13 October 2005

in Case C-458/03: Reference for a preliminary ruling from
the Verwaltungsgericht, Autonome Sektion für die
Provinz Bozen, Parking Brixen GmbH v Gemeinde Brixen,
Stadtwerke Brixen AG (1)

(Public procurement — Procedures for the award of public
contracts — Service concession — Management of public pay
car parks)

(2005/C 296/07)

(Language of the case: German)

In Case C-458/03: Reference for a preliminary ruling under
Article 234 EC from the Verwaltungsgericht, Autonome
Sektion für die Provinz Bozen (Italy), made by decision of
23 July 2003, received at the Court on 30 October 2003, in
the proceedings between Parking Brixen GmbH and Gemeinde
Brixen and Stadtwerke Brixen AG — the Court (First Chamber),
composed of P. Jann, President of the Chamber, K. Schiemann,
K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur) and E. Juhász,
J. Kokott, Advocate General; M.-F. Contet, Principal
Judges;
Administrator,
for the Registrar, gave a judgment on 13
October 2005, the operative part of which is as follows:

1. The award, by a public authority to a service provider, of the
management of a public pay car park, in consideration for which
that provider is remunerated by sums paid by third parties for the
is a public service concession to which
use of
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service contracts
does not apply.

that car park,

JUDGMENT OF THE COURT

(Fifth Chamber)

of 6 October 2005

in Case C-502/03: Commission of the European Commu-
nities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations — Environ-
ment — Management of waste — Directive 75/442/EEC, as
amended by Directive 91/156/EEC — Articles 4, 8 and 9)

(2005/C 296/08)

(Language of the case: Greek)

In Case C-502/03 Commission of the European Commu-
nities (Agent: M. Konstantinidis) v Hellenic Republic (Agent:
E. Skandalou) — action under Article 226 EC for failure to
fulfil obligations, brought on 26 November 2003 — the Court
(Fifth Chamber), composed of R. Silva de Lapuerta, President of
the Chamber, R. Schintgen and J. Klučka (Rapporteur), Judges;
L. A. Geelhoed, Advocate General; R. Grass, Registrar, gave a
judgment on 6 October 2005, in which it:

1. Declares that, by failing to take all the measures necessary to
ensure compliance with Articles 4, 8 and 9 of Council Directive
75/442/EEC of 15 July 1975 on waste, as amended by Council
Directive 91/156/EEC of 18 March 1991, the Hellenic Republic
has failed to fulfil its obligations under that directive;

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 47, 21.02.2004