Case C-567/07: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 27 December 2007 — Minister voor Wonen, Wijken en Integratie v Woningstichting Sint Servatius
Date: 2007-12-27
Institutions: Court of Justice
Subjects: Netherlands, free movement of capital, interpretation of the law, service industry, subsidised housing

C 64/24

EN

Official Journal of the European Union

8.3.2008

Questions referred

1. Is Article 21(1)(c) of the Sixth Directive (1) to be interpreted
as meaning that no liability to pay VAT arises in the Member
State in which the issuer of the invoice is resident or estab-
lished if the issuer of that invoice includes in it the VAT in
respect of an activity which, according to the common
system of value added tax, is deemed to be carried out in
another Member State or in a non-member country?

2. If not: if an invoice as referred to in Article 21(1)(c) of the
Sixth Directive has been issued to a recipient of services who
is not entitled to deduct VAT (and consequently there is no
risk of any loss of tax revenues), are the Member States
entitled to make the correction of the erroneously invoiced
VAT which, according to that provision,
is consequently
liable to be paid, subject to the requirement that the taxable
person subsequently issues a corrected invoice to his
customer in which there is no mention of any VAT amount?

(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).

Reference for a preliminary ruling from the Raad van State
(Netherlands), lodged on 27 December 2007 — Minister
voor Wonen, Wijken en Integratie v Woningstichting Sint
Servatius

(Case C-567/07)

(2008/C 64/36)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Wonen, Wijken en Integratie

Defendant: Woningstichting Sint Servatius

Questions referred

1. Does the requirement that the Minister give prior authori-
sation for any cross-frontier activities of an undertaking
which is authorised by law to promote the Netherlands'

public housing interests, which may rely on public
resources for this purpose, which may operate, by law,
solely in those interests, and which in principle has its area
of activity within the Netherlands (‘authorised institution’)
constitute a restriction on the free movement of capital, as
referred to in Article 56 of the EC Treaty?

2.a. Can a Member State's public housing interests be regarded
as a public policy interest as referred to in Article 58 of
the EC Treaty?

2.b. Can a Member State's public housing interests be regarded
as an overriding reason in the public interest recognised in
the case-law of the Court of Justice?

2.c. More specifically, can interest in the effectiveness of the
ability to finance a Member State's public housing system
be regarded as a public policy interest as referred to in
Article 58 of the EC Treaty or as an overriding reason in
the public interest recognised in the case-law of the Court
of Justice?

3.a. Assuming that the requirement of prior authorisation for
an authorised institution as referred to in Question 1
constitutes a restriction for which there is justification as
referred to in Questions 2.a, 2.b and 2.c, is that require-
ment necessary and proportionate?

3.b. When applying that justification, does a Member State have
a wide margin of discretion in determining the scale of the
public interest concerned and the manner in which that
interest is promoted? Is one of the determinants in this
context
if any,
powers in the public housing sector?

the Community has few,

the fact

that

4.a. Besides, or in conjunction with, the overriding reasons in
the EC
the public interest referred to in Article 58 of
Treaty and recognised in the case-law of
the Court of
Justice, can a Member State rely on Article 86(2) of the EC
Treaty to justify a restriction on the free movement of
capital, if special rights have been granted to the undertak-
ings concerned and those undertakings are entrusted with
the operation of services of general economic interest?

4.b. Do the public interests referred to in Article 58 of the EC
Treaty and the overriding reasons in the public interest
recognised in the case-law of the Court of Justice have the
same content as the general economic interest referred to
in Article 86(2) of the EC Treaty?

4.c. Does

reliance by the Member State

concerned on
Article 86(2) of the EC Treaty, its contention being that the
undertakings to which special rights have been granted
perform tasks of general economic interest, have additional
weight over and above reliance on public interests as
referred to in Article 58 of the EC Treaty and the over-
riding reasons in the public interest recognised in the case-
law of the Court of Justice?

8.3.2008

EN

Official Journal of the European Union

C 64/25

5.a. Can undertakings,

such as

the authorised institutions
referred to in Question 1, which, on the one hand, are
required to employ all their capital for the benefit of public
housing, but which, on the other hand, also undertake
commercial activities in respect of public housing, be
regarded, for all or some of their tasks, as undertakings
entrusted with the operation of
services of general
economic interest, as referred to in Article 86(2) of the EC
Treaty?

5.b. For the answer to Question 5.a to be in the affirmative, is
it necessary for the undertakings concerned to keep sepa-
rate accounts from which it is absolutely clear what costs
and receipts are associated with their social activities, on
the one hand, and with their commercial activities on the
other, and for that obligation to be laid down in national
legislation? Should it
then be ensured that a Member
State's financial resources benefit only the social activities
and their continuity?

6.a.

If an authorised institution as referred to in Question 1 can
be regarded, in respect of all or some of its activities, as an
undertaking entrusted with the operation of services of
general economic interest as referred to in Article 86(2) of
the EC Treaty, can the entrustment of the operation of
such services justify the imposition on the authorised insti-
tution of a restriction on the free movement of capital as
referred to in Article 56 of the EC Treaty?

6.b. When applying that justification, does a Member State have
a wide margin of discretion in determining the scale of the
general economic interest concerned and the manner in
which that interest is promoted? Is one of the determinants
in this context the fact that the Community has few, if any,
powers in the public housing sector?

7.a. Can the fact that a Member State provides certain under-
takings as referred to in Article 86(2) of the EC Treaty with
financial resources make it necessary for the territorial
scale of their activities to be limited in order to prevent
those financial resources from constituting prohibited State
aid and the undertakings employing those resources in
another Member State from competing with undertakings
in that Member State under conditions which do not
comply with market rules?

7.b. Can a Member State,

in this instance the Netherlands,
require authorised institutions as referred to in Question 1
wishing to undertake housing construction activities of a
social and commercial nature in another Member State to
obtain prior authorisation if there is as yet no legal obliga-
tion in the first mentioned Member State to make a distinc-
tion between the two types of activity? Is the requirement
of prior authorisation in this case a necessary and propor-
tionate means of ensuring compliance with Articles 87 and
88 of the EC Treaty?

Action brought on 21 December 2007 — Commission of
the European Communities v Hellenic Republic

(Case C-568/07)

(2008/C 64/37)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Zavvos and E. Traversa)

Defendant: Hellenic Republic

Form of order sought

— declare that, by failing to take the necessary measures to
comply with the judgment delivered by the Court of Justice
on 21 April 2005 in Case C-140/03, the Hellenic Republic
has failed to fulfil its obligations under Articles 43 EC and
48 EC;

— order the Hellenic Republic to pay to the Commission a
proposed penalty payment of EUR 70 956 for each day of
delay in complying with the judgment which was delivered
in Case C-140/03, from the day when judgment is delivered
in the present case until the day when the judgment deliv-
ered in Case C-140/03 has been complied with;

— order the Hellenic Republic to pay to the Commission a
lump sum, the amount of which is a daily sum multiplied
by the number of the days that the failure to fulfil obliga-
tions continues from the day when judgment was delivered
in Case C-140/03 until the date on which judgment is deliv-
ered in the present case;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. In the judgment delivered by it on 21 April 2005 in Case
C-140/03 Commission v Greece
relating to restrictions
concerning the opening and operation of opticians' shops in
breach of Articles 43 EC and 48 EC, the Court of Justice of
the European Communities:

‘1. [declared] that by enacting and maintaining in force Law
No 971/79 on the exercise of the profession of optician
and on shops for the sale of optical articles, which does
not permit a qualified optician as a natural person to
operate more than one optician's shop,
the Hellenic
Republic [had] failed to fulfil its obligations under Article
43 EC;