Case C-309/06: Judgment of the Court (Third Chamber) of 10 April 2008 (reference for a preliminary ruling from the House of Lords — United Kingdom) — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise (Taxation — Sixth VAT Directive — Exemption with refund of tax paid at the preceding stage — Erroneous taxation at the standard rate — Right to zero rate — Entitlement to refund — Direct effect — General principles of Community law — Unjust enrichment)
Date: 2008-04-10
Institutions: Court of Justice
Subjects: VAT, delivery, equal treatment, interpretation of the law, provision of services, tax exemption, tax rebate, tax system

24.5.2008

EN

Official Journal of the European Union

C 128/7

2) The

combined provisions of Articles 1 and 2 of Directive
2000/78 preclude legislation such as that at issue in the main
proceedings under which, after the death of his life partner, the
surviving partner does not receive a survivor's benefit equivalent to
that granted to a surviving spouse, even though, under national
law, life partnership places persons of the same sex in a situation
comparable to that of spouses so far as concerns that survivor's
benefit. It is for the referring court to determine whether a surviving
life partner is in a situation comparable to that of a spouse who is
entitled to the survivor's benefit provided for under the occupational
pension scheme managed by the Versorgungsanstalt der deutschen
Bühnen.

Operative part of the judgment

of Directive 2000/35/EC of

the European
Article 3(1)(c)(ii)
Parliament and of the Council of 29 June 2000 on combating late
payment in commercial transactions is to be interpreted as meaning
that it requires, in order that a payment by bank transfer may avoid or
put an end to the application of interest for late payment, that the sum
due be credited to the account of the creditor within the period for
payment.

(1) OJ C 249, 14.10.2006.

(1) OJ C 224, 16.9.2006.

Judgment of the Court (First Chamber) of 3 April 2008
(reference for a preliminary ruling from the Oberlandes-
gericht Köln, Germany) — 01051 Telecom GmbH v
Deutsche Telekom AG

(Case C-306/06) (1)

(Directive 2000/35/EC — Combating of
late payment in
commercial transactions — Article 3(1)(c)(ii) — Late payment
— Bank transfer — Date on which payment is to be regarded
as having been made)

(2008/C 128/10)

Language of the case: German

Judgment of the Court (Third Chamber) of 10 April 2008
(reference for a preliminary ruling from the House of
Lords — United Kingdom) — Marks & Spencer plc v Her
Majesty's Commissioners of Customs and Excise

(Case C-309/06) (1)

(Taxation — Sixth VAT Directive — Exemption with refund
of tax paid at the preceding stage — Erroneous taxation at
the standard rate — Right to zero rate — Entitlement to
refund — Direct effect — General principles of Community
law — Unjust enrichment)

(2008/C 128/11)

Language of the case: English

Referring court

Oberlandesgericht Köln

Parties to the main proceedings

Applicant: 01051 Telecom GmbH

Defendant: Deutsche Telekom AG

Referring court

House of Lords

Parties to the main proceedings

Applicant: Marks & Spencer plc

Defendant: Her Majesty's Commissioners of Customs and Excise

Re:

Re:

Reference for a preliminary ruling — Oberlandesgericht Köln —
Interpretation of Article 3(1)(c)(ii) of Directive 2000/35/EC of
the European Parliament and of the Council of 29 June 2000
on combating late payment in commercial transactions (OJ 2000
L 200, p. 35) — Whether a creditor may claim default interest
— ‘Receipt’ by the creditor of the amount due — National rule
under which the time of payment is considered to be the time
when the debtor gives the transfer order to the bank and not
the time when the creditor's account is credited

Reference for a preliminary ruling — House of Lords — Inter-
pretation of Article 28(2)(a) 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 (OJ 1977
L 145, p. 1) — Existence of Community law capable of being
relied on by a supplier of a product (teacakes) in respect of
which national legislation maintains an exemption with refund
tax — VAT incorrectly paid by reason of a
of

input

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