Case C-442/05: Judgment of the Court (Second Chamber) of 3 April 2008 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Finanzamt Oschatz v Zweckverband zur Trinkwasserversorgung und Abwasserbeseitigung Torgau-Westelbien (Sixth VAT Directive — Articles 4(5) and 12(3)(a) — Annexes D and H — Concept of supply of water or water supplies — Reduced rate of VAT)
Date: 2008-04-03
Institutions: Court of Justice
Subjects: interpretation of the law, quasi-fiscal charge, tax harmonisation, water supply

24.5.2008

EN

Official Journal of the European Union

C 128/3

Re:

Parties to the main proceedings

Failure of a Member State to fulfil obligations — Council Direc-
tives 93/36/EEC of 14 June 1993 (OJ 1993 L 199, p. 1) and
77/62/EEC of 21 December 1976 coordinating procedures for
the award of public supply contracts — Failure to show exis-
tence of grounds which may justify recourse by the contracting
authority to the negotiated procedure without prior publication
of a contract notice — Agusta and Agusta Bell helicopters
purchased for the requirements of the State Forestry Corps, the
Coastguard, the Carabinieri, etc.

Operative part of the judgment

The Court:

1. Declares that, by adopting a procedure, which has been in existence
for a long time and is still followed, of directly awarding to Agusta
SpA contracts for the purchase of Agusta and Agusta Bell helicop-
ters to meet the requirements of several military and civilian corps,
in particular,
without any competitive tendering procedure, and,
without complying with the procedures provided for by Council
Directive 93/36/EEC of 14 June 1993 coordinating procedures for
the award of public supply contracts, as amended by European
Parliament and Council Directive 97/52/EC of 13 October 1997,
and previously, by Council Directive 77/62/EEC of 21 December
1976 coordinating procedures for
the award of public supply
contracts, as amended and supplemented by Council Directives
80/767/EEC of 22 July 1980 and 88/295/EEC of 22 March
1988, the Italian Republic has failed to fulfil its obligations under
those directives;

Applicant: Finanzamt Oschatz

Defendant: Zweckverband
Abwasserbeseitigung Torgau-Westelbien

zur Trinkwasserversorgung und

Intervener: Bundesministerium der Finanzen

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Inter-
pretation of point 2 of Annex D and Category 2 of Annex H to
Directive 77/388/EEC: Sixth Council Directive 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 (OJ 1977 L 145, p. 1) — Reduced
rate for the supply of water — Payment for the installation of
mains connections to end users

2. Orders the Italian Republic to pay the costs.

Operative part of the judgment

(1) OJ C 281, 12.11.2005.

Judgment of the Court (Second Chamber) of 3 April 2008
(reference for a preliminary ruling from the Bundesfi-
nanzhof, Germany) — Finanzamt Oschatz v Zweckverband
und Abwasserbeseitigung
zur Trinkwasserversorgung

Torgau-Westelbien

(Case C-442/05) (1)

(Sixth VAT Directive — Articles 4(5) and 12(3)(a) —
Annexes D and H — Concept of ‘supply of water’ or ‘water
supplies’ — Reduced rate of VAT)

(2008/C 128/04)

Language of the case: German

Referring court

Bundesfinanzhof

1. Article 4(5) of 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 and point 2 of Annex D thereto must
be interpreted as meaning that the laying of a mains connection
which consists, as in the main proceedings, in the installation of
piping permitting the connection of a building's water system to the
fixed water supply network forms part of the supply of water, listed
in that annex, so that a body governed by public law acting as a
public authority is a taxable person in respect of that transaction.

2. Article 12(3)(a) of Sixth Directive 77/388 and Category 2 of
Annex H thereto must be interpreted as meaning that the laying of
a mains connection which consists, as in the main proceedings, in
the installation of piping permitting the connection of a building's
water system to the fixed water supply network forms part of water
supplies. Furthermore, Member States may apply a reduced rate of
value added tax to concrete and specific aspects of water supplies,
such as the laying of mains connections at issue in the main
proceedings, provided that they comply with the principle of fiscal
neutrality inherent in the common system of value added tax.

(1) OJ C 60, 11.3.2006.