Case C-492/08: Action brought on 14 November 2008 — Commission of the European Communities v French Republic
Date: 2008-11-14
Institutions: Court of Justice
Subjects: European Commission, France, VAT, action for failure to fulfil an obligation, lawyer, provision of services

24.1.2009

EN

Official Journal of the European Union

C 19/17

Pleas in law and main arguments

— order the French Republic to pay the costs.

Under the Spanish legislation, companies which have a substan-
tial holding in the capital of a branch may deduct from their
taxable income 100 % of the gross dividend received from that
holding. In order to enjoy this facility, parent companies resi-
dent in Spain must have had a holding of at least 5 % of the
capital of the resident branch of the company for an uninter-
rupted period of at least one year. Dividends which qualify for
the application of that facility are exempt from deduction at
source.

In order to enjoy that exemption, parent companies not resident
in Spain were required to have a holding of 20 %, which was
reduced to 15 % from 1 January 2007 and will be reduced to
10 % from 1 January 2009. Thus, unlike parent companies resi-
dent in Spain, parent companies from other Member States of
the EC and Member States party to the Agreement on the
European Economic Area which have a holding in the capital of
at least 5 % but lower than the limits mentioned have to pay
tax in respect of the dividends paid by the branch.

The Commission takes the view that by imposing a requirement
of a larger holding in the capital for parent companies which
are not resident than is imposed on resident companies in order
to enjoy the exemption from tax for dividends distributed by
the branches in Spain the difference in treatment under the
Spanish legislation constitutes discrimination contrary
to
Article 56 EC and Article 40 of
the EEA Agreement. The
Commission can see no justification for this additional fiscal
burden which falls on parent companies from other Member
States and the Member States of the EEA.

Pleas in law and main arguments

The Commission disputes the application, by the defendant, of a
reduced rate of VAT for services provided in the context of legal
aid by lawyers, lawyers at the Council of State and at the Court
of Cassation as well as avoués, as such services are not included
in any of
the categories listed in Annex III of Directive
2006/112/EC.

In order to respond to the defendant's three main arguments,
the Commission submits first that the guarantee of access to
justice cannot be an appropriate reason for derogating from the
normal rate of VAT on the services of lawyers to the extent that
that guarantee is connected more to the range of aid granted by
the State than to the rate of VAT, which is determined in a
uniform manner at Community level.

Secondly, according to the applicant, the social nature of the
activities at issue is not sufficient for them to be included in the
other categories of services listed in Annex III of the directive,
for which a reduction in the rate of VAT is allowed as compared
to the normal applicable rate. According to the Court's settled
case-law, a narrow interpretation of the nature of those services
would be necessary so as to maintain the restrictive nature of
that annex.

Finally, the Commission states that the aim both of Articles 96
and 98(2) of the VAT directive and of Annex III thereof is not
to avoid distortions of competition between economic operators
providing the same goods or services, but more simply to
encourage a progressive harmonisation of the legislation of the
Member States, by harmonising the rates of VAT applied and
limiting the transactions which can be subject to reduced rates.

Action brought on 14 November 2008 — Commission of
the European Communities v French Republic

(1) Council Directive 2006/112/EC of 28 November 2006 on the

common system of value added tax (OJ 2006 L 347, p. 1).

(Case C-492/08)

(2009/C 19/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Afonso, acting as Agent)

Defendant: French Republic

Form of order sought

Reference for a preliminary ruling from the Vestre
lodged on 19 November 2008 —
Landsret
Ingeniørforeningen i Danmark for Ole Andersen v Region
Syddanmark

(Denmark)

(Case C-499/08)

(2009/C 19/31)

Language of the case: Danish

— Declare that by applying a reduced rate of value added tax
(VAT) to services provided by lawyers, lawyers at the Council
of State and at the Court of Cassation and avoués, for which
they are paid in part or in whole by the State through legal
aid, France has failed to fulfil its obligations under Articles 96
and 98(2) of the VAT directive (1);

Referring court

Vestre Landsret