CELEX: C2003/213/31
Language: en
Date: 2003-09-06 00:00:00
Title: Case C-292/03: Action brought on 4 July 2003 by the Commission of the European Communities against the Republic of Finland

C 213/18                 EN                         Official Journal of the European Union                                         6.9.2003
On a correct interpretation of article 26 of the Sixth Direc-               by the tour operator on seat-only sales in the financial year in
tive ( 1) on value added tax and of the judgment of the Court of            question or (b) the average revenue achieved by the tour
Justice in Cases C-308/96 and C-94/97 Madgett and Baldwin                   operator on seat-only sales in the financial year in question?
[1998] ECR I-6229:
                                                                            (1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
I.     In what, if any, circumstances is it open to a tour                       harmonization of the laws of the Member States relating to
       operator, which has completed its value added tax return                  turnover taxes — Common system of value added tax: uniform
       for a financial year using the actual cost method which                   basis of assessment (OJ L 145, 13.06.77, p. 1).
       was the only method laid down in national legislation
       implementing the Directive, subsequently to recalculate
       its VAT liability partly in accordance with the market
       value method described in paragraph 46 of that judg-
       ment?
       (1) In particular may such a tour operator use the
             market value selectively in relation to different              Action brought on 4 July 2003 by the Commission of the
             financial years, and if so, in what circumstances?               European Communities against the Republic of Finland
       (2) In a case where the tour operator sells some of the                                          (Case C-292/03)
             in-house components of its packages to the public
             on a non-package basis (in this case flights) but does
             not sell other in-house components of some of its                                          (2003/C 213/31)
             packages to the public on a non-package basis
             (in this case cruises and campsites) can the tour
             operator:
                                                                            An action against the Republic of Finland was brought before
             (a)   use the market value method in relation to               the Court of Justice of the European Communities on 4 July
                   those packages (being the vast majority) where           2003 by the Commission of the European Communities,
                   it can determine the value of all its in-house           represented by M. Konstantinidis and P. Aalto, with an address
                   supplies (in this case flights) by reference to          for service in Luxembourg.
                   sales it has made to the public on a non-
                   package basis;
                                                                            The Commission claims that the Court should:
             (b)   in cases where the package includes in-house
                   elements which the tour operator does not sell           1.     Declare under Article 226 of the Treaty establishing the
                   to the public on a non-package basis (in this                   European Union that, by failing to adopt the laws,
                   case camp sites and cruises), can the tour                      regulations and administrative measures to comply with
                   operator use the market value method to                         Directive 2000/53/EC of the European Parliament and
                   determine the value of those in-house supplies                  of the Council of 18 September 2000 on end-of-life
                   that it does sell to the public (in this case the               vehicles (1) or in any event in failing to inform the
                   flights) where it has not been possible to                      Commission thereof, the Republic of Finland has failed
                   establish a market value for other parts of the                 to fulfil its obligations under that Directive;
                   package.
                                                                            2.     Order the Republic of Finland to pay the costs of the
                                                                                   proceedings.
       (3) Must the use of the combination of methods be
             (a) simpler or (b) significantly simpler or (c) not
             significantly more complicated
                                                                            Pleas in law and main arguments
       (4) Must the market value method produce the same,
             or a very similar, VAT liability as does the cost-
             based method?                                                  The time-limit for implementing the directive expired on
                                                                            21 April 2002.
Is it possible in the circumstances of the present case to                  (1 ) OJ 2000 L 269, p. 34.
identify that part of the in-house service relating to flights sold
as part of a holiday package by taking either (a) the average
cost of an airline seat increased by the average margin achieved