Case C-331/06: Judgment of the Court (Second Chamber) of 3 April 2008 (reference for a preliminary ruling from the Rechtbank te Amsterdam, Netherlands) — K.D. Chuck v Raad van Bestuur van de Sociale Verzekeringsbank (Old-age insurance — Worker who is a national of a Member State — Social security contributions — Separate periods — Different Member States — Calculation of periods of insurance — Application for a pension — Residence in a non-Member State)
Date: 2008-04-03
Institutions: Court of Justice
Subjects: interpretation of the law, pension scheme, social legislation, social-security benefit, worker (EU)

C 128/8

EN

Official Journal of the European Union

24.5.2008

misconstruction of the national
legislation by the competent
authorities — Application of the general principles of Com-
munity law, including that of fiscal neutrality — Possibility for
an individual to rely on those general principles for the purpose
of recovering the sums wrongly levied

5. It is for the national court itself to draw any conclusions with
respect to the past from the infringement of the principle of equal
treatment referred to in point 3 of the operative part of this judg-
ment, in accordance with the rules relating to the temporal effects
of the national legislation applicable in the main proceedings, in
compliance with Community law and, in particular, with the prin-
ciple of equal treatment and the principle that it must ensure that
the remedies which it grants are not contrary to Community law.

Operative part of the judgment

(1) OJ C 261, 28.10.2006.

1. Where,

of

under Article 28(2)

the Member States relating to turnover

Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws
taxes — Common
of
system of value added tax: uniform basis of assessment, both before
and after the insertion of the amendments made to that provision
by Council Directive 92/77/EEC of 19 October 1992, a Member
State has maintained in its national legislation an exemption with
refund of input tax in respect of certain specified supplies, a trader
making such supplies does not have any directly enforceable Com-
munity-law right to have those supplies taxed at a zero rate of
value added tax.

legislation an exemption with refund of

2. Where, under Article 28(2) of Sixth Directive 77/388, both before
and after the insertion of the amendments made to that provision
by Directive 92/77, a Member State has maintained in its
tax in
national
respect of certain specified supplies but has mistakenly interpreted
its national legislation, with the consequence that certain supplies
benefiting from exemption with refund of
its
national legislation have been subject to tax at the standard rate,
the general principles of Community law, including that of fiscal
neutrality, apply so as to give a trader who has made such supplies
a right to recover the sums mistakenly charged in respect of them.

tax under

input

input

3. Although the principles of equal treatment and fiscal neutrality
apply in principle to the case in the main proceedings, an infringe-
ment of those principles is not constituted merely by the fact that a
refusal to make repayment was based on the unjust enrichment of
the taxable person concerned. By contrast, the principle of fiscal
neutrality precludes the concept of unjust enrichment from being
applied only to taxable persons such as ‘payment traders’ (taxable
persons for whom,
in a given prescribed accounting period, the
output tax collected exceeds the input tax) and not to taxable
persons such as ‘repayment traders’ (taxable persons whose position
is the inverse of that of payment traders), in so far as those taxable
persons have marketed similar goods. It will be for the national
court to determine whether that is the position in the present case.
Furthermore, the general principle of equal treatment, the infringe-
ment of which may be established, in matters relating to tax, by
discrimination affecting traders who are not necessarily in competi-
tion with each other but are nevertheless in a similar situation in
other respects, precludes discrimination between ‘payment traders’
and ‘repayment traders’, which is not objectively justified.

4. The answer to the third question is not affected where there is
evidence that a trader who has been refused repayment of value
added tax which was wrongly levied has not suffered any financial
loss or disadvantage.

Judgment of the Court (Second Chamber) of 3 April 2008
(reference for a preliminary ruling from the Rechtbank te
Amsterdam, Netherlands) — K.D. Chuck v Raad van
Bestuur van de Sociale Verzekeringsbank

(Case C-331/06) (1)

(Old-age insurance — Worker who is a national of a Member
State — Social security contributions — Separate periods —
Different Member States — Calculation of periods of insur-
ance — Application for a pension — Residence in a
non-Member State)

(2008/C 128/12)

Language of the case: Dutch

Referring court

Rechtbank te Amsterdam

Parties to the main proceedings

Applicant: K.D. Chuck

Defendant: Raad van Bestuur van de Sociale Verzekeringsbank

Re:

Reference for a preliminary ruling — Rechtbank Amsterdam —
Interpretation of Article 48 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
(OJ, English Special Edition 1971 (II), p. 416) — Old-age
insurance periods of a
pension insurance — Calculation of
national of a Member State who has worked in two other
Member States — Residence in a non-member State at the date
of retirement

24.5.2008

EN

Official Journal of the European Union

C 128/9

Operative part of the judgment

Article 48(2) 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 Regu-
lation (EC) No 631/2004 of the European Parliament and of the
Council of 31 March 2004, requires the competent institution of the
last Member State in which a worker who is a national of a Member
State resided to take into account, in calculating the old age pension of
that worker, who, when he submits his pension claim, is resident in a
non-Member State, of the periods worked in another Member State
resided in the
under
European Community.

the same conditions as if

that worker still

(1) OJ C 281, 18.11.2006.

Judgment of the Court (Second Chamber) of 3 April 2008
(reference for a preliminary ruling from the Oberlandes-
gericht Celle (Germany)) — Dirk Rüffert, in his capacity as
liquidator of the assets of Objekt und Bauregie GmbH &
Co. KG v Land Niedersachsen

(Case C-346/06) (1)

(Article 49 EC — Freedom to provide services — Restrictions
— Directive 96/71/EC — Posting of workers in the context of
the provision of services — Procedures for the award of public
works contracts — Social protection of workers)

(2008/C 128/13)

Language of the case: German

Referring court

Oberlandesgericht Celle

Parties to the main proceedings

with, and ensure compliance by their subcontractors with, the
provisions on minimum pay prescribed by the collective agree-
ment in force at the place where the services in question are to
be provided.

Operative part of the judgment

the provision of

interpreted in the

Directive 96/71/EC of the European Parliament and of the Council of
16 December 1996 concerning the posting of workers in the frame-
work of
light of
services,
Article 49 EC, precludes an authority of a Member State, in a situa-
tion such as that at issue in the main proceedings, from adopting a
measure of a legislative nature requiring the contracting authority to
designate as contractors for public works contracts only those undertak-
ings which, when submitting their tenders, agree in writing to pay
their employees, in return for performance of the services concerned, at
least
the
the remuneration prescribed by the collective agreement
minimum wage
services are
performed.

the place where

in force at

those

(1) OJ C 294, 2.12.2006.

the Court (Fourth Chamber) of 10 April
Judgment of
a preliminary ruling from the
2008 (reference for
Vergabekontrollsenat des
Landes Wien, Austria) —
Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme
Wien GmbH

(Case C-393/06) (1)

(Public contracts — Directives 2004/17/EC and 2004/18/EC
— Contracting entity pursuing activities falling in part within
the field of application of Directive 2004/17/EC and in part
within that of Directive 2004/18/EC — Body governed by
public law — Contracting authority)

(2008/C 128/14)

Language of the case: German

Applicant: Dirk Rüffert, in his capacity as liquidator of the assets
of Objekt und Bauregie GmbH & Co. KG

Referring court

Defendant: Land Niedersachsen

Vergabekontrollsenat des Landes Wien

Re:

Parties to the main proceedings

Preliminary reference — Oberlandesgericht Celle (Germany) —
Interpretation of Article 49 EC — National legislation requiring
undertakings involved in the tendering procedure for public-
works contracts to give a commitment that they will comply

Applicant: Ing. Aigner, Wasser-Wärme-Umwelt GmbH

Defendant: Fernwärme Wien GmbH