CELEX: C2001/173/16
Language: en
Date: 2001-06-16 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 22 February 2001 in Case C-408/98 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)): Abbey National plc v Commissioners of Customs and Excise (VAT — Articles 5(8) and 17(2)(a) and (5) of the Sixth VAT Directive — Transfer of a totality of assets — Deduction of input tax on services used by the transferor for the purposes of the transfer — Goods and services used for the purposes of the taxable person's taxable transactions)

C 173/10                 EN                      Official Journal of the European Communities                                           16.6.2001
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fifth Chamber)
                                                                                                      (Fifth Chamber)
                        of 22 February 2001
                                                                                                    of 22 February 2001
in Case C-393/98 (reference for a preliminary ruling
from the Supremo Tribunal Administrative (Portugal)):
Ministério Público, António Gomes Valente v Fazenda
                               Pública (1)                                 in Case C-408/98 (reference for a preliminary ruling from
                                                                            the High Court of Justice of England and Wales, Queen’s
                                                                            Bench Division (Divisional Court)): Abbey National plc v
(Internal taxation — Special tax on motor vehicles —                                   Commissioners of Customs and Excise (1)
                       Second-hand vehicles)
                           (2001/C 173/15)                                  (VAT — Articles 5(8) and 17(2)(a) and (5) of the Sixth VAT
                                                                            Directive — Transfer of a totality of assets — Deduction of
                                                                            input tax on services used by the transferor for the purposes
                  (Language of the case: Portuguese)                        of the transfer — Goods and services used for the purposes
                                                                                      of the taxable person’s taxable transactions)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                    (2001/C 173/16)
In Case C-393/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal
Administrativo, (Supreme Administrative Court), Portugal for                                     (Language of the case: English)
a preliminary ruling in the proceedings pending before that
court between Ministério Público, António Gomes Valente and
Fazenda Pública — on the interpretation of Article 95 of the
EC Treaty (now, after amendment, Article 90 EC) the Court                   In Case C-408/98: reference to the Court under Article 177 of
(Fifth Chamber), composed of: A. La Pergola, President of the               the EC Treaty (now Article 234 EC) from the High Court of
Chamber, M. Wathelet (Rapporteur), D.A.O. Edward, P. Jann                   Justice of England and Wales, Queen’s Bench Division (Div-
and L. Sevón, Judges; N. Fennelly, Advocate General; H. von                isional Court), for a preliminary ruling in the proceedings
Holstein, Deputy Registrar, has given a judgment on 22 Febru-               pending before that court between Abbey National plc and
ary 2001, in which it has ruled:                                            Commissioners of Customs and Excise — on the interpretation
                                                                            of Articles 5(8) and 17(2)(a) of the Sixth Council Directive
1.    The fact that the Commission discontinues infringement pro-           77/388/EEC of 17 May 1977 on the harmonisation of the
      ceedings against a Member State concerning a piece of                 laws of the Member States relating to turnover taxes —
      legislation has no effect on the obligation upon a court of last      Common system of value added tax: uniform basis of assess-
      instance of that Member State to refer to the Court of Justice,       ment (OJ 1977 L 145, p. 1) — the Court (Fifth Chamber),
      pursuant to the third paragraph of Article 177 of the EC Treaty       composed of: D.A.O. Edward, acting as President of the
      (now the third paragraph of Article 234 EC), a question of            Fifth Chamber, P. Jann and L. Sevón (Rapporteur), Judges;
      Community law in relation to the legislation concerned.               F.G. Jacobs, Advocate General; L. Hewlett, Administrator, for
                                                                            the Registrar, has given a judgment on 22 February 2001, in
                                                                            which it has ruled:
2.    The first paragraph of Article 95 of the Treaty does not permit
      a Member State to apply to second-hand vehicles imported from
      other Member States a system of taxation in which the
      depreciation in the actual value of those vehicles is calculated in   Where a Member State has made use of the option in Article 5(8) of
      a general and abstract manner, on the basis of fixed criteria or      the Sixth Council Directive 77/388/EEC of 17 May 1977 on the
      scales determined by a legislative provision, a regulation or an      harmonisation of the laws of the Member States relating to turnover
      administrative provision, unless those criteria or scales are         taxes — Common system of value added tax: uniform basis of
      capable of guaranteeing that the amount of the tax due does           assessment, so that the transfer of a totality of assets or part thereof
      not exceed, even in a few cases, the amount of the residual tax       is regarded as not being a supply of goods, the costs incurred by the
      incorporated in the value of similar vehicles already registered      transferor for services acquired in order to effect that transfer form
      in the national territory.                                            part of that taxable person’s overheads and thus in principle have a
                                                                            direct and immediate link with the whole of his economic activity. If,
                                                                            therefore, the transferor effects both transactions in respect of which
(1) OJ C 397 of 19.12.1998.                                                 value added tax is deductible and transactions in respect of which it
                                                                            is not, it follows from Article 17(5) of the Sixth Directive 77/388
                                                                            that he may deduct only that proportion of the value added tax which
                                                                            is attributable to the former transactions. However, if the various
 ---pagebreak--- 16.6.2001                 EN                        Official Journal of the European Communities                                            C 173/11
services acquired by the transferor in order to effect the transfer have       1.    Article 95a of Regulation (EEC) No 1408/71 of the Council
a direct and immediate link with a clearly defined part of his economic              of 14 June 1971 on the application of social security schemes
activities, so that the costs of those services form part of the overheads           to employed persons, to self-employed persons and to members
of that part of the business, and all the transactions relating to that              of their families moving within the Community, as amended by
part of the business are subject to value added tax, he may deduct all               Council Regulation (EEC) No 1248/92 of 30 April 1992,
the value added tax charged on his costs of acquiring those services.                laying down transitional provisions for application of Regu-
                                                                                     lation No 1248/92, applies to recipients of pensions who,
                                                                                     before the date of entry into force of the amendments introduced
(1) OJ C 1 of 4.1.1999.                                                              by the latter regulation, had already brought proceedings before
                                                                                     a national court seeking to obtain the right to the pension
                                                                                     by contesting the application of the national rules against
                                                                                     overlapping, even if a final decision in those proceedings had
                                                                                     not yet been given at the time of the entry into force of the new
                                                                                     provisions.
                                                                               2.    It is for the national court to determine, first, whether its
                                                                                     national law requires an application for review to be made
                   JUDGMENT OF THE COURT                                             either to the competent social security institution within the
                                                                                     period prescribed and in accordance with the relevant formal
                                                                                     requirements, or to the court itself according to the applicable
                            (Fifth Chamber)                                          rules of procedure. Second, it is for that court to ensure that
                                                                                     those requirements are not less favourable than those governing
                         of 22 February 2001                                         similar situations under domestic law and that they are not
                                                                                     such as to render impossible in practice or excessively difficult
                                                                                     the exercise of the rights conferred on claimants by Regulation
in Joined Cases C-52/99 and C-53/99 (reference for a                                 No 1408/71, as amended by Regulation No 1248/92.
preliminary ruling from the Cour du Travail de Liège
(Belgium)): Office National des Pensions (ONP) v Giocon-
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) (1)                       (1) OJ C 100 of 10.4.1999.
(Council Regulation (EEC) No 1408/71, as amended by
Regulation (EEC) No 1248/92 — Social security Insurance
relating to old age and death — Calculation of benefits —
    Changes to the rules governing calculation of benefits)
                            (2001/C 173/17)                                                      JUDGMENT OF THE COURT
                                                                                                        (Second Chamber)
                      (Language of the case: French)
                                                                                                       of 22 February 2001
(Provisional translation; the definitive translation will be published         in Case C-187/99 (reference for a preliminary ruling from
                     in the European Court Reports)                            the Supremo Tribunal Administrativo): Fazenda Pública v
                                                                                           Fábrica de Queijo Eru Portuguesa Lda (1)
In Joined Cases C-52/99 and C-53/99: reference to the Court
under Article 177 of the EC Treaty (now Article 234 EC) from                   (Inward processing relief arrangements — Regulation (EEC)
the Cour du Travail de Liège (Higher Labour Court, Liège) for                  No 1999/85 — Rate of yield of the processing operation —
a preliminary ruling in the proceedings pending before that                    Authorisation issued by the competent customs authority —
court between Office National des Pensions (ONP) and Giocon-                   Power of that authority unilaterally to alter the rate of yield)
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) — on
the interpretation of Article 95a of Council Regulation (EEC)                                             (2001/C 173/18)
No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed
persons and to members of their families moving within the
                                                                                                 (Language of the case: Portuguese)
Community (OJ, English Special Edition 1971 (II), p. 416), as
amended by Council Regulation (EEC) No 1248/92 of 30 April
1992 (OJ 1992 L 136, p. 7) — the Court (Fifth Chamber),
composed of: A. La Pergola, President of the Chamber,                          (Provisional translation; the definitive translation will be published
D.A.O. Edward (Rapporteur) and P. Jann, Judges; S. Alber,                                          in the European Court Reports)
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 22 February 2001, in                        In Case C-187/99: reference to the Court under Article 177 of
which it has ruled:                                                            the EC Treaty (now Article 234 EC) from the the Supremo