CELEX: C1996/133/31
Language: en
Date: 1996-05-04 00:00:00
Title: Action brought on 6 March 1996 by the Kingdom of Spain against the Council of the European Union (Case C-61/96)

4 . 5 . 96                EN                 Official Journal of the European Communities                                   No C 133/ 15
of the European Communities, represented by Hélène                      Estado, acting as Agent, with an address for service in
Michard and Enrico Traversa, acting as Agents, with an                  Luxembourg at the Spanish Embassy, 4-6 Boulevard E.
address for service in Luxembourg at the office of Carlos               Servais .
Gomez de la Cruz, Wagner Centre, Kirchberg.
                                                                        The applicant claims that the Court should :
The Commission claims that the Court should :
                                                                        — annul the element concerning anchovy contained in the
( a ) declare that, by introducing and maintaining in force an                Annex to Council Regulation ( EC ) No 3074/95 of
       administrative provision extending to the leasing or                   22 December 1995 ( ! ) fixing, for certain fish stocks and
       letting of certain items of movable property the                       groups of fish stocks, the total allowable catches for
       exemption from VAT restricted by Community                             1996 and certain conditions under which they may be
       legislation exclusively to the leasing or letting of                   fished,
       immovable property, the French Republic has failed to
       fulfil its obligations under Article 2 of Council Directive      — order the defendant institution to pay the costs .
       77/388/EEC of 17 May 1977 ( the Sixth VAT Directive )
       on the harmonization of the laws of the Member States
       relating to turnover taxes — common system of value              Pleas in law and main arguments
       added tax : uniform basis of assessment (');
                                                                        The pleas in law and main arguments are analogous to those
( b ) order the French Republic to pay the costs .                      in Case C-179/95 ( 2 ).
Pleas in law and main arguments                                         (>) OJ No L 330 , 30 . 12 . 1995 , p . 1 .
                                                                        ( 2 ) OJ No C 208 , 12 . 8 . 1995 , p . 10 .
The Commission considers that the exemption from VAT in
respect of the leasing or letting of certain items of movable
property, such as tents, caravans and mobile homes, goes
beyond the limits laid down by Article 13 ( B ) ( b ) of the Sixth
Directive, which applies only to the leasing or letting of
immovable property .
                                                                        Reference for a preliminary ruling from the
                                                                        Bundesfinanzhof by order of that court of 13 December
In the Commission's view, the uncertain interpretation of
                                                                        1995 in the case of Finanzamt Bergisch Gladbach v. Werner
the concept of a supply of services in the form of the leasing
                                                                                                        Skripalle
or letting of certain items of movable property which stems
from a hybrid interpretation, in accordance with criteria laid                                    ( Case C-63 /96 )
down by national law, of the supply of accommodation in a                                           ( 96/C 133/32 )
hotel or similar establishment, constitutes a major problem
which directly calls in question the system of uniform
taxation within the Community established by the Sixth                  Reference has been made to the Court of Justice of the
Directive in relation to the leasing or letting of movable              European Communities by an order of the Bundesfinanzhof
                                                                        ( Federal Finance Court ) — Eleventh Chamber — of 13
property .
                                                                        December 1995 , which was received at the Court Registry
The Commission further observes that the provisions on                  on 8 March 1996 , for a preliminary ruling in the case of
exemption must be strictly interpreted, since they constitute           Finanzamt Bergisch Gladbach v. Werner Skripalle on the
an exception to the basic principle of the Directive, which             following questions :
establishes a common system of taxation of economic
                                                                         1 . Does Article 27 of Directive 77/388/EEC cover an
activities within the Community .
                                                                              authorization by the Council to introduce special
                                                                              measures for derogation from Directive 77/388/EEC (^
( 1 ) OJ No L 145 , 1977, p . 1 .
                                                                              in order to prevent tax avoidance which, in the case of
                                                                              supplies for consideration made between associated
                                                                              persons, apply the cost to the taxable person within the
                                                                              meaning of Article 11 A ( 1 ) (c ) of Directive 77/388/EEC
                                                                              as the minimum basis of assessment also where the
                                                                              agreed consideration represents the market rate but is
Action brought on 6 March 1996 by the Kingdom of Spain                        less than the minimum basis of assessment and there is
           against the Council of the European Union                          therefore no tax avoidance ?
                           ( Case C-61/96 )
                                                                        2 . Can a Member State invoke special measures under
                             ( 96/C 133/31 )                                  Article 27 of Directive 77/388/EEC as taxation rules
                                                                               applying to a taxable person, if neither the Council's
An action against the Council of the European Union was                       decision authorizing the measures was published in the
brought before the Court of Justice of the European                            Official Journal of the European Communities nor the
Communities on 6 March 1 996 by the Kingdom of Spain,                          authorization procedure under Article 27 ( 2 ) to ( 4 )
represented by Rosario Silva de Lapuerta, Abogado del                          of Directive 77/388/EEC made public — after its