CELEX: C1997/357/17
Language: en
Date: 1997-11-22 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 16 October 1997 in Case C-258/95 (reference for a preliminary ruling from the Bundesfinanzhof): Julius Fillibeck Söhne GmbH & Co. KG v. Finanzamt Neustadt (Sixth VAT Directive - Supply of services for consideration - Definition - Transport of workers by the employer)

22. 11 . 97            1 EN 1            Official Journal of the European Communities                                      C 357/9
madura, Caceres ( High Court of Justice of the Community                          JUDGMENT OF THE COURT
of Extremadura, Caceres) ( Spain ), for a preliminary ruling                                 ( Second Chamber)
in the proceedings pending before that court between
Antonio Naranjo Arjona and Instituto Nacional de la                                          of 9 October 1997
Seguridad Social (INSS ), Francisco Vicente Mateos and              in Case C-291/96 (reference for a preliminary ruling from
Instituto Nacional de la Seguridad Social (INSS ), Tesoreria        the Amtsgericht Reutlingen): Criminal proceedings against
General de la Seguridad Social (TGSS ), and Instituto                           Martino Grado and Shahid Bashir ( ')
Nacional de la Seguridad Social (INSS ) and Laura Garcia
Lazaro — on the interpretation of Article 47 ( 1 ) of               (Preliminary reference — Criminal proceedings — Use of
Council Regulation ( EEC ) No 1408/71 of 14 June 1971               a courtesy title — Discrimination — Relevance of the
on the application of social security schemes to employed                         question — Lack of jurisdiction)
persons, to self-employed persons and to members of their
                                                                                                 ( 97/C 357/16 )
families moving within the Community, as amended and
updated by Council Regulation ( EEC ) No 2001/83 of
2 June 1983 ( OJ L 230, 22 . 8 . 1983 , p. 6 ) and as adapted                      (Language of the case: German)
by Annex I, Part VIII, of the Act concerning the
Conditions of Accession of the Kingdom of Spain and the
Portuguese Republic and the adjustments to the Treaties               (Provisional translation; the definitive translation will be
( OJ L 302, 15 . 11 . 1985 , p. 23 ), and subsequently                       published in the European Court Reports)
amended by Council Regulation ( EEC ) No 1248/92 of
30 April 1992 ( OJ L 136 , 19 . 5 . 1992, p. 7) — the Court         In Case C-291 /96 : reference to the Court under Article 177
( Fifth Chamber), composed of: J. C. Moitinho de
Almeida, acting for the President of the Chamber, D. A. O.          of the EC Treaty from the Amtsgericht ( Local Court ),
Edward, J. -P. Puissochet ( Rapporteur ), P. Jann and L.            Reutlingen ( Germany), for a preliminary ruling in the
Sevon, Judges; A. La Pergola, Advocate-General; H. von              criminal proceedings pending before that court against
Holstein, Deputy Registrar, Administrator, for the                  Martino Grado and Shahid Bashir — on the interpretation
Registrar, has given a judgment on 9 October 1997, in               of Article 6 of the EC Treaty — the Court ( Second
which it has ruled :                                                Chamber), composed of: R. Schintgen ( Rapporteur),
                                                                    President of the Chamber, G. F. Mancini and G. Hirsch,
                                                                    Judges; G. Tesauro, Advocate-General; R. Grass, Registrar,
                                                                    has given a judgment on 9 October 1997, in which it has
                                                                    ruled :
Article 47 (1 ) (e) of Council Regulation (EEC) No 1408/
71 of 14 June 1971 on the application of social security            The Court has no jurisdiction to answer the question
schemes to employed persons, to self-employed persons               referred by the Amtsgericht Reutlingen.
and to members of their families moving within the
Community, as amended and updated by Council
                                                                    (') OJ C 318, 26 . 10 . 1996 .
Regulation (EEC) No 2001 /83 of 2 June 1983 and as
adapted by Annex I, Part VIII, of the Act concerning the
Conditions of Accession of the Kingdom of Spain and the
Portuguese Republic and the adjustments to the Treaties,
and which has become Article 47 (1 ) (g) following the
entry into force of Council Regulation (EEC) No 1248/92
of 30 April 1992, implies that, in situations such as that at                     JUDGMENT OF THE COURT
issue in the main proceedings, calculation of the average
basis for contributions rests solely on the amount of                                          ( Fifth Chamber)
contributions actually paid under the legislation                                           of 16 October 1997
concerned, and the theoretical amount of the benefit thus
obtained is to be duly revalorized and increased as if the          in Case C-258/95 (reference for a preliminary ruling from
persons concerned had continued to work under the same              the Bundesfinanzhof): Julius Fillibeck Sohne GmbH &c Co.
conditions in the Member State in question. However,                                KG v. Finanzamt Neustadt (*)
where application of that provision so interpreted proves           (Sixth VAT Directive — Supply of services for
less advantageous, for workers who were already                     consideration — Definition — Transport of workers by
employed in another Member State before the regulation                                            the employer)
entered into force in the first Member State, than the
application of a previous convention between those two                                           ( 97/C 357/ 17 )
States, the competent court should, by way of exception,
apply the rules laid down by that convention.                                      (Language of the case: German)
(') OJ C 95 , 30 . 3 . 1996 .                                         (Provisional translation; the definitive translation will be
                                                                             published in the European Court Reports)
                                                                    In Case C-258/95 : reference to the Court under Article 177
                                                                    of the EC Treaty from the Bundesfinanzhof ( Federal
 ---pagebreak--- C 357/10                  EN            Official Journal of the European Communities                                     22 . 11 . 97
Finance Court), for a preliminary ruling in the proceedings                        JUDGMENT OF THE COURT
pending before that court between Julius Fillibeck Söhne                                   (Fifth Chamber)
GmbH & Co . KG and Finanzamt Neustadt — on the
interpretation of Articles 2 ( 1 ) and 6 (2 ) of the Sixth                               of 16 October 1997
Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating            in Joined Cases C-69/96 to C-79/96 (reference for a
to turnover taxes — Common system of value added tax:              preliminary ruling from the Consiglio di Stato): Maria
uniform basis of assessment ( OJ L 145 , 13 . 6 . 1977, p. 1 )     Antonella Garofalo and Others v. Ministero della Sanità,
— the Court ( Fifth Chamber), composed of: C. Gulmann,                   Unità Sanitaria Locale ( USL ) No 58 di Palermo (')
President of the Chamber, M. Wathelet, J. C. Moitinho de           (Article 1 77 of the EC Treaty — Jurisdiction — Court of
Almeida, P. Jann and L. Sevón ( Rapporteur ), Judges;              one of the Member States ■— Extraordinary petition to the
P. Leger, Advocate-General; H. A. Rühl, Principal                  President of the Italian Republic — Compulsory opinion
Administrator, for the Registrar, has given a judgment on          of the Consiglio di Stato — Directives 86/457/EEC and
16 October 1997, in which it has ruled:                            93/16/EEC — Specific training in general medical practice
                                                                              — Rights acquired before 1 January 1995)
                                                                                            ( 97/C 357/18 )
1 . Article 2 (1 ) of the Sixth Council Directive 77/388/
     EEC of 17 May 1977 on the harmonization of the                                  (Language of the case: Italian)
     laws of the Member States relating to turnover taxes
     — Common system of value added tax: uniform basis
     of assessment is to be interpreted as meaning that an            (Provisional translation; the definitive translation will be
     employer who provides transport for employees free of                    published in the European Court Reports)
     charge from their homes to the workplace where they
     are more than a specified distance apart, in the
     absence of any real connection either with the work           In Joined Cases C-69/96 to C-79/96 : reference to the
     performed or the wages received, does not effect a            Court under Article 177 of the EC Treaty from the Consi­
     supply of services for consideration within the               glio di Stato ( Council of State ) ( Italy ), for a preliminary
     meaning of that provision.                                    ruling in the proceedings pending before that court
                                                                   between Maria Antonella Garofalo (C-69/96 ), Giovanni
                                                                   Pagano ( C-70/96 ), Rosa Bruna Vitale ( C-71/96 ), Francesca
                                                                   Nuccio ( C-72/96 ), Giacomo Cangialosi ( C-73/96 ), Gia­
                                                                   coma D'Amico ( C-74/96 ), Giulia Lombardo ( C-75/96 ),
2 . Article 6 (2) of the Sixth Directive 77/388/EEC is to          Emanuela Giovenco (C-76/96 ), Caterina Lo Gaglio ( C-77/
     be interpreted as meaning that transport provided for          96 ), Daniela Guerrera ( C-78/96 ) and Cesare Di Marco
     employees free of charge by the employer between               ( C-79/96 ) and Ministero della Sanità, Unità Sanitaria
     their homes and the workplace in a company vehicle            Locale ( USL ) No 58 di Palermo — on the interpretation of
     serves, in principle, the employees ' private purposes        Article 177 of the EC Treaty and Article 7 of Council
     and thus serves purposes other than those of the               Directive 86/457/EEC of 15 September 1986 on specific
     business. However, that provision does not apply              training in general medical practice ( OJ L 267, 19. 9 .
     when, having regard to certain circumstances, such as          1986, p. 26 ) — the. Court ( Fifth Chamber ), composed of:
     the difficulty of finding other suitable means of              C. Gulmann, President of the Chamber, M. Wathelet, J. C.
     transport and changes in the place of work, the                Moitinho de Almeida, D. A. O. Edward ( Rapporteur) and
     requirements of the business make it necessary for the        J. -P. Puissochet, Judges; D. Ruiz-Jarabo Colomer,
     employer to provide transport for employees, in which          Advocate-General; R. Grass, Registrar, has given a
     case the supply of those transport services is not             judgment on 16 October 1997, in which it has ruled :
     effected for purposes other than those of the business.
                                                                    1 . When it issues an opinion in the context of an
                                                                         extraordinary petition, the Consiglio di Stato
                                                                         constitutes a court or tribunal for the purposes of
 3 . The answer to the second question also applies when                 Article 177 of the EC Treaty.
      the employer does not convey the employees in its
      own vehicles, but commissions one of its employees to
     provide the transport using his own private vehicle.           2 . Article 36 (2) of Council Directive 93/16/EEC of
                                                                         5 April 1993 to facilitate the free movement of
                                                                         doctors and the mutual recognition of their diplomas,
                                                                         certificates and other evidence of formal qualifications
 (') OJ C 268 , 14 . 10 . 1995 .                                         — which replaced Article 7 (2) of Council Directive
                                                                         86/457/EEC of 15 September 1986 on specific training
                                                                         in general medical practice — is to be interpreted as
                                                                         meaning that a Member State may determine the
                                                                         acquired right of practitioners of general medicine as
                                                                         regards situations prior to 1 January 1995, provided