Source: EURLEX
Language: en
Format: md

C 173/28 EN Official Journal of the European Communities 16.6.2001

**Reference for a preliminary ruling by the Court of Appeal** 2. Does ‘the total amount to be paid by the traveller’
**(England & Wales) (Civil Division), by order of that court** within Article 26.2 include the additional sum
**of 13 March 2001, in the case of Commissioners of** referred to in (c) above?
**Customs and Excise against First Choice Holidays plc**

**(Case C-149/01)** ( [1] ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ L 145, 13.06.77, p. 1).
(2001/C 173/47)

Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:
**Action brought on 9 April 2001 by the Commission of**
**the European Communities against the French Republic**
Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC( [1] )
**(Case C-150/01)**

(a) supplies package holidays to customers through the
disclosed agency of a travel agent; (2001/C 173/48)

(b) permits the agent to arrange the supply of package An action against the French Republic was brought before the
holidays at a discount from the price published in the Court of Justice of the European Communities on 9 April
tour operator’s brochure (the customer being liable to 2001 by the Commission of the European Communities,
pay only the discounted price for the holiday); represented by M. Patakia and B. Mongin, acting as Agents,
with an address for service in Luxembourg.

(c) requires the agent who arranges the supply of a package
holiday at a discount not only to pass on to the tour The Commission claims that the Court should:
operator the price actually charged to the customer but
also to pay to the tour operator an additional sum equal
to the discount given to the customer (who is unaware of 1. declare that, by retaining legislation which requires
the financial arrangements between the tour operator and intellectual property advisers established in other Member
the agent), so that the agent accounts to the tour operator States to appear on the register of French intellectual
for the full brochure price of the holiday; property advisers, and thus to possess the French qualification and to be ordinarily resident or have a place of
business in France, in order to supply services in France,
(d) agrees to pay the agent a commission based on the the French Republic has failed to fulfil its obligations
brochure price of the holiday, which in practice is paid under Articles 49 to 55 of the EC Treaty and Council
by set-off against the sums due from the agent as Directive 89/48/EEC of 21 December 1988 on a general
mentioned in (c) above; system for the recognition of higher-education diplomas
awarded on completion of professional education and
training of at least three years’ duration( [1] );
(e) does not know whether or not the agent has arranged the
sale of a particular holiday at a discounted price, or the
amount of the discount; 2. order the French Republic to pay the costs.

(f) as between itself and the agent, accounts for the sale of
the holiday on the basis that it has been paid the full _Pleas in law and main arguments_
brochure price of the holiday;

—
By making an ‘intellectual property adviser’ who provides
1. Having established the above facts, how should the services subject to the same obligations as an ‘intellectual
additional sum (referred to in (c) above) paid by the property adviser’ established in France, the French legistravel agent to the tour operator be characterised for lation infringes Article 49 EC. While the pursuit, even as
the purposes of Article 26.2? a provider of services, of an activity which is not