Case C-462/05: Action brought on  22 December 2005  by the Commission of the European Communities against the Portuguese Republic
Date: 2006-03-11
Institutions: Court of Justice
Subjects: European Commission, Portugal, VAT rate, action for failure to fulfil an obligation, tax harmonisation, toll

11.3.2006

EN

Official Journal of the European Union

C 60/23

Those articles set out separate rules on the recognition of
acquired rights which are to apply to Polish qualifications of
nurses responsible for general care and midwives; those rules
constitute a derogation from the rules relating to recognition of
acquired rights specific to nurses responsible for general care
and midwives which are in force in regard to qualifications
obtained in the other Member States. The preamble to Directive
2005/36/EC does not set out any reasons for the adoption of
the abovementioned derogating rules on the recognition of
acquired rights specific to nurses responsible for general care
and midwives such as can justify those rules on grounds of
Polish professional qualifications.

The absence of reasons explaining why the aforementioned
provisions were adopted amounts to a breach of Article 253 of
the EC Treaty in view of the fact that, in the course of the legis-
leading to the adoption of Directive
lative deliberations
2005/36/EC, the provisions in question lost their character as
measures benefiting from the status of rules which did not
require to be separately reasoned. Notwithstanding the fact that
their content was set out in the provisions of the Treaty of
Accession, in the light of Article 9 of the Treaty of Accession
and the course of the deliberations in respect of Directive
2005/36/EC, those measures do not benefit from a presump-
tion that they were properly reasoned merely by virtue of the
fact that their content was set out in that Treaty.

(1) OJ L 255 of 30.09.2005, p. 22.

Action brought on 22 December 2005 by the Commission
the Portuguese
of

the European Communities against

Republic

(Case C-462/05)

(2006/C 60/45)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the Court of
the European Communities on 22
December 2005 by the Commission of the European Commu-
nities, represented by Richard Lyal and Margarida Afonso,
acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1) declare that, by maintaining in force a reduced rate of value
added tax of 5 % applicable to tolls on road crossings of the
River Tagus in Lisbon, the Portuguese Republic has failed to
fulfil its obligations under Articles 12 and 28 of the Sixth
Directive; (1)

2) order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

It is apparent from the Court of Justice's judgment in Case C-
276/98 Commission v Portugal [1998] ECR I-1699, and it is
furthermore impliedly accepted by the Portuguese authorities,
that the Sixth Directive contains no provision whatsoever that
might allow of the application of a reduced rate of 5 % to the
services in question. The Portuguese authorities have none the
less deferred indefinitely putting an end to that failure to fulfil
obligations which has subsisted since 1 January 1995, falling
back on a series of contradictory arguments, and also on equi-
vocal declarations and frequent changes of position on the
question whether Article 4(5) of the Sixth Directive is to find
application.

After thorough examination of
the arguments of and the
various positions adopted by the Portuguese Government on
this point during the pre-litigation stage of the procedure, the
the conditions on which
Commission takes the view that
Article 4(5) of the Sixth Directive may be regarded as applic-
able to the services at issue have not been fulfilled.

It is clear from Article 12(3)(a) of the Sixth Directive that a
reduced rate of value added tax may be applied only to transac-
tions that, while taxable, consist of one of the categories speci-
fied in Annex H — which is not the case when the essence of
the services is to make available to users a highway infrastruc-
ture through the payment of tolls.

The Commission takes the view that Article 28(2)(e) of the
Sixth Directive, relied upon by the Portuguese authorities,
entails an obligation not to continue to apply a reduced rate to
transactions in respect of which the transition, regarded as
desirable, to the field of application of the standard rate of tax
has already been possible. As a matter of fact, to accept that a
Member State can, as the Portuguese Government argues, again
apply a reduced rate after a period of greater or lesser duration
in which the standard rate applied would render unfeasible the
gradual or progressive approximation of the rates and levels of
value added tax judged necessary by the Community legisla-
ture.

In any event, even if the Court should not agree with the
restrictive interpretation of Article 28(2)(e) of the Sixth Direc-
tive propounded by the Commission, it must still be held that
the Portuguese legislation, in providing for the application of a
reduced rate of 5 %, or in any case of less than 12 %, to tolls
on road crossings of the River Tagus in Lisbon, is not compa-
tible with that provision.

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
- Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).