CELEX: 62002CJ0382
Language: en
Date: 2004-09-16
Title: Judgment of the Court (Second Chamber) of 16 September 2004.#Cimber Air A/S v Skatteministeriet.#Reference for a preliminary ruling: Vestre Landsret - Denmark.#Sixth VAT Directive - Article 15(6), (7) and (9) - Exemption of exports outside the Community - Meaning of "aircraft used by airlines operating chiefly on international routes' - Exemption for fuelling and provisioning of domestic flights.#Case C-382/02.

Case C-382/02
      Cimber Air A/S
      v
      Skatteministeriet
      (Reference for a preliminary ruling from the Vestre Landsret)
      (Sixth VAT Directive – Article 15(6), (7) and (9) – Exemption of exports outside the Community – Meaning of aircraft used by airlines operating chiefly on international routes – Exemption for fuelling and provisioning of domestic flights)
      Summary of the Judgment
      Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth
            Directive – Exemption for certain transactions relating to aircraft used by airlines operating for reward chiefly on international
            routes – Scope – Transactions relating to aircraft operating domestic routes – Included – Concept of airlines operating chiefly
            on international routes – Assessment by the national courts
      (Council Directive 77/388, Art. 15(6), (7) and (9))
      The provisions of Article 15(6), (7) and (9) of Directive 77/388 on the harmonisation of the laws of the Member States relating
         to turnover taxes regarding the exemption from value added tax for certain transactions relating to aircraft used by airlines
         operating for reward chiefly on international routes must be interpreted as meaning that the supplies of goods and services
         referred to in those provisions to aircraft which operate on domestic routes but are used by those airlines are exempt from
         value added tax.
      
      As regards the question whether an airline operates chiefly on international routes within the meaning of Article 15(6) that
         concept must be considered, in any event, as including a company whose operations on non-international routes are found to
         be considerably less extensive than its international activities. In that respect, it is for the national courts to assess
         the extent of the international business and the extent of the non-international business of that company. In doing so, they
         may take account of all information which indicates the relative importance of the type of operations concerned, in particular
         turnover.
      
      (see paras 30, 39-40, operative part 1-2)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)16 September 2004(1)
         
         
            
         
               (Sixth VAT Directive  –  Article 15(6), (7) and (9)  –  Exemption of exports outside the Community  –  Meaning of ‘aircraft used by airlines operating chiefly on international routes’  –  Exemption for fuelling and provisioning of domestic flights)
               
             In Case C-382/02,REFERENCE for a preliminary ruling under Article 234 ECfrom the Vestre Landsret (Denmark), made by decision of 9 October 2002, received at the Court on 23 October 2002, in the proceedings
            
            
            Cimber Air A/S
            
            v
            
            Skatteministeriet,
            
            
            
            
            THE COURT (Second Chamber),,
            
             composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), J.N. Cunha Rodrigues
            and N. Colneric, Judges,
            
             Advocate General: D. Ruiz-Jarabo Colomer,Registrar: H. von Holstein, Deputy Registrar,
             having regard to the written procedure and further to the hearing on 4 March 2004,after considering the observations submitted on behalf of:
            
            –
             Cimber Air A/S, by R. Mikelsons, avocat,
            
            –
             the Danish Government and Skatteministeriet, by J. Molde, acting as agent, assisted by P. Biering, avocat,
            
            –
             the German Government, by M. Lumma, acting as Agent,
            
            –
             the Commission of the European Communities, by E. Traversa and N.B. Rasmussen, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 25 March 2004,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Article 15(6), (7) and (9) of the Sixth Council Directive
         77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system
         of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1 – the ‘Sixth Directive’).
         
         
         
         2
            
          This reference was made in the course of proceedings between Cimber Air A/S (‘Cimber Air’) and the Skatteministeriet (Danish
         Ministry of Fiscal Affairs) concerning an application for a refund of the value added tax (‘VAT’) paid on supplies to aircraft
         for which no refund is available under the Danish VAT legislation.
         
         
            
               Legal background
            The Community legislation
         
         3
            
          Article 15 of the Sixth Directive, which governs exemption for exports outside the Community, for like transactions and international
         transport, provides: 
         ‘Without prejudice to other Community provisions Member States shall exempt the following under conditions which they shall
         lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any
         evasion, avoidance or abuse: 
         
         1.
            the supply of goods dispatched or transported to a destination outside the Community by or on behalf of the vendor; 
         
         
         2.
            the supply of goods dispatched or transported to a destination outside the Community by or on behalf of a purchaser not established
               within the territory of the country, with the exception of goods transported by the purchaser himself for the equipping, fuelling
               and provisioning of pleasure boats and private aircraft or any other means of transport for private use; 
            
         
         
         ...
         
         
         6.
            the supply, modification, repair, maintenance, chartering and hiring of aircraft used by airlines operating for reward chiefly
               on international routes, and the supply, hiring, repair and maintenance of equipment incorporated or used therein; 
            
         
         
         7.
            the supply of goods for the fuelling and provisioning of aircraft referred to in paragraph 6; 
         
         
         ...
         
         
         9.
            the supply of services other than those referred to in paragraph 6, to meet the direct needs of aircraft referred to in that
               paragraph or of their cargoes;
            
         
         …’
         
         The national legislation
         
         4
            
          The VAT exemption rules are contained in the lov om mervaerdiafgift (VAT Law) of 16 August 2000 (hereinafter ‘the Law of 16
         August 2000’). It governs the levying of VAT on supplies to airlines.
         
         
         
         5
            
          Article 34(1) of the Law of 16 August 2000, which deals with VAT exemptions for supplies to certain aircraft, provides:
         ‘The following supplies of goods and services shall be exempt from tax:
         ...
         
         7.
            necessary equipment and supplies delivered for use on board aircraft and ships engaged in international transport, excluding
               private aircraft ... and supplies of services intended for such aircraft ... ;
            
         
         
         8.
            the sale and hiring of aircraft ... other than private aircraft and pleasure boats;
         
         
         9.
            repairs, maintenance and modification of the aircraft referred to in subparagraph 8 ... and delivery, hiring, repairs and
               maintenance of their fixed equipment;
            
         
         
         ...
         
         
         16.
            goods supplied for fuelling and provisioning, and other supplies to provisioning undertakings, and to ships and aircraft for
               consumption on board or sale to passengers, in accordance with customs legislation.’
            
         
         
         
         
         6
            
          Thus, under Article 34(1), subparagraphs 7 and 16, of the Law of 16 August 2000:
         –         take-off and landing taxes,
         –         fuel,
         –         catering,
         –         baggage handling
          represent the ‘supplies of goods’ and ‘supplies of services’ referred to in Article 15(7) and (9) of the Sixth Directive and
         are VAT exempt only if they are for a flight bound abroad.
         
         
         
         7
            
          As regards purchases made for international flights, including transit flights, the VAT paid may be refunded under Article
         45(3) of the Law of 16 August 2000; no refund is available for domestic flights.
         
         The main proceedings and the questions referred to the Court of Justice
         
         8
            
          Cimber Air is an airline whose main activity consists in operating regular regional air services in Europe in cooperation
         with its two partners, SAS and Lufthansa. It operates on domestic routes in Denmark and on routes between Denmark and other
         countries. It also operates on routes which originate and terminate abroad.
         
         
         
         9
            
          In the main proceedings, the Skatteministeriet considers it inappropriate to exempt from VAT certain supplies to Cimber Air
         aircraft being used for domestic flights, that is to say flights between airports within Denmark, exemption being available
         only for aircraft being used for an international flight. Cimber Air considers that all supplies to aircraft being used for
         domestic flights must benefit from the exemption because it operates chiefly on international routes.
         
         
         
         10
            
          Cimber Air therefore brought an action before the Vestre Landsret (Western Regional Court) for an order requiring the Skatteministeriet
         to recognise that the goods and services supplied to it after 30 April 2001 are VAT exempt, since international transport
         accounts for the major part of its business.
         
         
         
         11
            
          Cimber Air also claimed that the Skatteministeriet should be ordered to repay to it the VAT which, in its view, it wrongly
         paid in excess. That amount comprises the VAT which Cimber Air paid to its suppliers for various supplies made for or in relation
         to flights on entirely domestic routes.
         
         
         
         12
            
          The parties differs as to whether Article 15(7) and (9) of the Sixth Directive in conjunction with Article 15(6) preclude
         the levying of VAT on supplies to Cimber Air aircraft when such aircraft are operating on domestic routes, given that the
         company’s flights are chiefly international.
         
         
         
         13
            
          In those circumstances, the Vestre Landsret stayed the proceedings and referred the following questions to the Court of Justice
         for a preliminary ruling:
         ‘1.     Are Article 15(7) and (9) (referring to Article 15(6)) of the Sixth VAT Directive (Council Directive 77/388/EEC), to be interpreted
         as meaning that a Member State is entitled not to exempt from VAT supplies to aircraft operating on a domestic route, regardless
         of the fact that the company using the aircraft operates chiefly on international routes, or is the Member State bound to
         exempt such supplies from VAT? 
          2.       If the Court finds that supplies must be exempted from VAT if the airline operates chiefly on international routes, the Court
         is asked to state which criteria in the form of, for example, turnover, available seat-kilometres, passenger-kilometres or
         number of passengers and flights, are decisive under Article 15(6) for determining whether an airline can be said to be operating
         “chiefly” on international routes?’ 
         
         The first question
         
         14
            
          By its first question the national court seeks essentially to ascertain whether Article 15(6), (7) and (9) of the Sixth Directive
         must be interpreted as meaning that the goods and services referred to by those provisions, supplied to aircraft which, although
         carrying out domestic flights, are used by airlines operating for reward chiefly on international routes, are VAT exempt.
         
         Observations submitted to the Court
         
         15
            
          The Danish Government submits that, in so far as Article 15 of the Sixth Directive concerns exemption of exports outside the
         Community, paragraphs 7 and 9 of that article can relate only to supplies of goods or services for international flights and
         the status of each aircraft movement should be assessed individually. Article 15(6), under which the supplies of goods or
         services referred to in that article must be considered in relation to the activities chiefly undertaken by the airline, constitutes
         an exception only to Article 15 interpreted as a whole.
         
         
         
         16
            
          The Danish Government states, in support of the interpretation for which it contends, that the provisions concerning exemption
         within the country are in Article 13 of the Sixth Directive. However, supplies to flights within the country are not exempted
         by the latter article, a fact which supports the argument that Article 15(7) and (9) of that directive are not concerned with
         supplies of goods or services for aircraft used on domestic routes, even though the company to which they belong may chiefly
         operate on international routes.
         
         
         
         17
            
          That view is shared by the Commission, which also observes that the provisions of the Sixth Directive on tax exemptions must
         be interpreted strictly in order to comply with the principle of fiscal neutrality. That principle requires equality of tax
         treatment for all national transport operations.
         
         
         
         18
            
          The Commission accepts that Article 15(6) of the Sixth Directive expressly derogates from the principle of fiscal neutrality
         but observes that there is nothing in the legislative history of that article to indicate that Article 15(7) and (9) allow
         such a derogation; the tax exemption referred to in those paragraphs can therefore cover only goods and services for aircraft
         used solely for international operations.
         
         
         
         19
            
          Cimber Air, supported at the hearing by the German Government, interprets Article 15(7) and (9) of the Sixth Directive differently.
         It considers that the VAT exemption for the supplies covered by those provisions applies to aircraft on domestic routes when
         the airline to which they belong operates for reward chiefly on international routes.
         
         
         
         20
            
          Cimber Air and the German Government consider that departure from the principle of fiscal neutrality to be justified by the
         difficulties involved in determining what proportion of the supplies to an aircraft that is used for both domestic and international
         flights should be exempt from VAT and what proportion should not.
         
         
         
         21
            
          They consider therefore that, for the supplies of goods and services referred to in Article 15(7) and (9) of the Sixth Directive
         to be exempt, the decisive criterion, by virtue of which the wording of those provisions overrides the principle of fiscal
         neutrality, is the fact that the aircraft benefiting from the exemption belongs to an airline that operates chiefly on international
         routes. That criterion enables the rules laid down by Article 15(6), (7) and (9) of the Sixth Directive to be applied simply
         and consistently.
         
         
         
         22
            
          On the basis of that interpretation, Cimber Air concludes that, in the circumstances of the main proceedings, the Danish rules
         and, pursuant to them, the application of the exemption only to aircraft being used for international flights are incompatible
         with Community law.
         
         Findings of the Court
         
         23
            
          Exemptions constitute independent concepts of Community law which must be placed in the general context of the common system
         of VAT introduced by the Sixth Directive (see in particular Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 18; Case C-2/95 SDC [1997] ECR I-3017, paragraph 21; and Case C-141/00 Kügler [2002] ECR I-6833, paragraph 25).
         
         
         
         24
            
          That system is based in particular on two principles. First, each supply of goods and services effected for consideration
         by a taxable person is subject to VAT. Second, in accordance with the principle of fiscal neutrality, economic operators carrying
         out the same transactions may not be treated differently in relation to the levying of VAT.
         
         
         
         25
            
          For those reasons, whilst it is common ground that the Sixth Directive may provide for exemptions which depart from the principles
         referred to in the foregoing paragraph, the Court considers that such exemptions must be interpreted strictly (see, to that
         effect, SDC, paragraph 20, Case C-216/97 Gregg [1999] ECR I-4947, paragraph 12, and Kügler, paragraph 28).
         
         
         
         26
            
          In this case, pursuant to Article 15(7) and (9) of the Sixth Directive, the supply of goods for the fuelling and provisioning
         of aircraft referred to in Article 15(6) and the supply of services other than those mentioned in Article 15(6), to meet the
         direct needs of those aircraft or of their cargoes, are VAT exempt.
         
         
         
         27
            
          Article 15(6) is concerned with ‘aircraft used by airlines operating for reward chiefly on international routes’.
         
         
         
         28
            
          Thus, contrary to the contentions of the Commission and the Danish Government, the exemption provided for in Article 15 of
         the Sixth Directive relates formally, both in paragraphs 7 and 9 and in paragraph 6 of that article, to domestic flights carried
         out by aircraft used by companies whose business is mainly international.
         
         
         
         29
            
          The fact, referred to by the Commission, that the exemptions within a Member State are provided for in Article 13 of the Sixth
         Directive and that the conditions for exemption in Article 15 thereof are completely harmonised cannot have the effect of
         giving Article 15 a meaning different from that which is clear from its wording.
         
         
         
         30
            
          The answer to be given to the first question must therefore be that Article 15(6), (7) and (9) of the Sixth Directive must
         be interpreted as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate
         on domestic routes but are used by airlines chiefly operating for reward on international routes are exempt from VAT.
         
         The second question
         
         31
            
          By its second question, the national court seeks essentially to ascertain which criteria should be used to determine whether
         an airline operates chiefly on international routes.
         
         Observations submitted to the Court
         
         32
            
          The Commission and the Danish Government consider that it is unnecessary to answer this question in view of the answer which
         they suggest for the first question.
         
         
         
         33
            
          Cimber Air maintains that the word ‘chiefly’ used in Article 15(6) of the Sixth Directive must be examined having regard to
         an airline’s operations on all its routes, so that a temporal analysis must be undertaken and also an analysis of the criteria
         governing production and sales.
         
         
         
         34
            
          It considers that the international portion of an airline’s operations must be determined over a long period, so that, if
         it has, for several years, operated chiefly on international routes and in the course of one year it has done so to a lesser
         extent, that fact cannot give rise, in respect of that year, to different VAT treatment for the aircraft of that company.
         
         
         
         35
            
          As regards the criteria for determining the extent of an airline’s operations on international routes, Cimber Air proposes
         that this should be measured in terms of seat-kilometres, thus enabling the proportion of turnover accounted for by international
         flights to be determined.
         
         
         
         36
            
          Cimber Air submits that indicators such as the number of paying passengers and the number of flights do not provide the same
         precise measure of the extent of an airline’s business.
         
         Findings of the Court
         
         37
            
          For the reasons set out in paragraphs 23 to 25 of this judgment, the term ‘airlines operating for reward chiefly on international
         routes’ has a Community meaning and must be interpreted strictly in so far as it serves as a basis for VAT exemptions.
         
         
         
         38
            
          That interpretation must take account of the divergence between certain language versions of the provision in question. The
         French, Italian, Spanish and Portuguese versions of Article 15(6) of the Sixth Directive use the word ‘essentially’ or the
         equivalent thereof, whereas the Danish, German, English and Dutch versions use, respectively, the words ‘hovedsageligt’, ‘hauptsächlich’,
         ‘chiefly’ and ‘hoofdzakelijk’. According to the second group of expressions, the provision in question refers to airlines
         whose operations on international routes merely exceed their non-international operations, whereas, according to the first
         group of expressions, the international operations should account for almost all the business of those companies.
         
         
         
         39
            
          It may be deduced from the foregoing analysis that, in any event, it is necessary to treat as airlines operating chiefly on
         international routes those whose operations on non-international routes are found to be considerably less extensive than their
         international activities.
         
         
         
         40
            
          The answer to the second question must be that it is for the national courts to assess the extent of the international business
         and the extent of the non-international business of such companies. In doing so, they may take account of all information
         which indicates the relative importance of the type of operations concerned, in particular turnover.
         
         
         Costs
         41
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Second Chamber) rules as follows:
         
            
            
             
               1.
                  Article 15(6), (7) and (9) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the
                     Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment must be interpreted
                     as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate on domestic routes
                     but are used by airlines chiefly operating for reward on international routes are exempt from VAT.
                  
               
            
            
            
             
               2.
                  It is for the national courts to assess the extent of the international business and the extent of the non-international business
                     of such companies. In doing so, they may take account of all information which indicates the relative importance of the type
                     of operations concerned, in particular turnover.
                  
               
            
             Signatures.
      
      
          1 –
            
            Language of the case: Danish.