CELEX: C2004/007/34
Language: en
Date: 2004-01-10 00:00:00
Title: Case C-452/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 17 October 2003, in the case of 1) RAL (Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd against Commissioners of Customs and Excise

10.1.2004              EN                         Official Journal of the European Union                                            C 7/21
2.    Must Articles 43, 48 and 49 of the EC Treaty be                          common system of value added tax: uniform basis of
      interpreted as precluding national rules such as those laid              assessment, in particular Articles 2, 4, and 9, the Thir-
      down in Legislative Decree No 241 of 9 July 1997, as                     teenth Council Directive (86/560/EEC) (2) of 17 Novem-
      amended by Legislative Decree No 490 of 28 December                      ber 1986 on the harmonisation of the laws of the
      1998, read together with the consolidated law on income                  Member States relating to turnover taxes — arrangements
      tax (Decree of the President of the Republic No 917 of                   for the refund of value added tax to taxable persons
      22 December 1986) and Law No 413 of 30 December                          not established in Community territory, in particular
      1991, which exclusively reserves the right to provide                    Articles 1 and 2, and the general principles of Community
      certain types of tax advice to a single category of                      law:
      operators, namely the Centri di Assistenza Fiscale (or
      CAFs), and denies other economic operators in the sector
      who are nevertheless professionally qualified to provide
      tax and accounting advice (doctors, commercial account-                  1.   How is the expression ‘fixed establishment’ in
      ants, lawyers and work consultants) the opportunity of                        Article 9 of the Sixth Directive to be interpreted?
      providing, on the same terms and conditions, the type of
      advice reserved to the CAFs?
                                                                               2.   What are the factors to be considered in determining
3.    Must Article 87 of the EC Treaty be interpreted as                            whether the supply of slot gaming services is from
      meaning that a measure such as that arising from the                          the business establishment of a company such as Cl
      rules laid down in Legislative Decree No 241 of 9 July                        or from any fixed establishments that a company
      1997, and in particular Article 38 thereof, which provides                    such as Cl might possess?
      for payment to be made to CAFs from State funds in
      respect of the activities referred to in Articles 34(4) and
      37(2) of that legislative decree, constitute State aid?
                                                                               3.   In particular:
                                                                                    a)   Where the business of a company (‘A’) is
                                                                                         structured in circumstances such as those of the
                                                                                         present case so that a connected company (‘B’),
                                                                                         whose business establishment lies outside the
                                                                                         territory of the Community, supplies slot gam-
Reference for a preliminary ruling by the High Court of                                  ing services and the sole purpose of the struc-
Justice (England & Wales), Chancery Division, by order                                   ture is to eliminate A’s liability to pay VAT in
of that court dated 17 October 2003, in the case of 1) RAL                               the State in which it is established:
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
                            and Excise                                                   (i)   can the slot gaming services be regarded
                                                                                               as supplied from a fixed establishment in
                                                                                               that Member State; and, if so,
                         (Case C-452/03)
                          (2004/C 7/34)                                                  (ii) are the slot gaming services to be deemed
                                                                                               to be supplied from the fixed establish-
                                                                                               ment or are they deemed to be supplied
                                                                                               from the place where B has established its
                                                                                               business?
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003,                        b)   Where the business of a company (‘A’) is
for a preliminary ruling in the case of 1) RAL (Channel Islands)                         structured so that, for the purposes of the place
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and                            of supply rules, a connected company (‘B’), in
Commissioners of Customs and Excise on the following                                     circumstances such as those of the present case,
questions:                                                                               purports to supply slot gaming services from a
                                                                                         business establishment outside the territory of
                                                                                         the Community and has no fixed establishment,
(1) In the circumstances of the present case and
                                                                                         from which those services are provided, in the
                                                                                         Member State in which A is established and the
(2) having regard to the Sixth Council Directive (77/388/                                sole purpose of the structure is to eliminate A’s
      EEC) (1) of 17 May 1977 on the harmonisation of the                                liability to pay VAT in that State on those
      laws of the Member States relating to turnover taxes —                             services:
 ---pagebreak--- C 7/22                 EN                          Official Journal of the European Union                                           10.1.2004
                (i)   do the transactions between B and connec-            trative Court) dated 23 October 2003, which was received at
                      ted companies within the Member State                the Court Registry on 27 October 2003, for a preliminary
                      (‘A’, ‘C’ and ‘D’) qualify for VAT purposes          ruling in the case of The Queen on the application of 1) ABNA
                      as supplies made by or to those companies            Ltd, 2) Denis Brinicombe (a partnership), 3) BOCM Pauls Ltd,
                      in the course of their economic activities;          4) Devenish Nutrition Ltd, 5) Nutrition Services (International)
                      if not,                                              Ltd, 6) Primary Diets Ltd and 1) Secretary of State for Health,
                                                                           2) Food Standards Agency on the following question:
                (ii) what factors should be considered in
                      determining the identity of the supplier of
                      the slot gaming services?                            Are Article 1(1)(b) of Directive 2002/02 (1) and/or Article 1(4)
                                                                           of Directive 2002/02, to the extent that it amends
      4.   a)   Is there a principle of abuse of right which               Article 5c(2)(a) of Directive 79/373 (2) by requiring percentages
                (independently of the interpretation given to              to be listed, invalid by reason of
                the VAT Directives) is capable of precluding the
                advantage sought in a case such as the present?            a.    the absence of a legal basis in Article 152(4)(b) EC;
           b)   If so, how does it operate in the circumstances            b.    infringement of the fundamental right to property;
                such as the present?
                                                                           c.    infringement of the principle of proportionality?
      5.   a)   What significance, if any, should be attached to
                the fact that A, C and D are not subsidiaries of
                B and that B does not control A, C and D either
                legally or economically?                                   (1) Directive 2002/02/EC of the European Parliament and of the
                                                                               Council of 28 January 2002 amending Council Directive 79/373/
                                                                               EEC on the circulation of compound feedingstuffs and repealing
           b)   Would it make a difference to any of the                       Commission Directive 91/357/EEC (OJ L 63, 06.03.2002, p. 23).
                answers given above if the type of management              (2) Directive 79/373/EEC of the Council of 2 April 1979 on the
                undertaken by B at its business establishment                  marketing of compound feedingstuffs (OJ L 86, 06.04.1979,
                outside the territory of the Community were                    p. 30).
                necessary for the provision of slot gaming
                services to customers and neither A, C nor D
                performs those activities?
(1) OJ L 145, 13.06.77, p. 1.
(2) OJ L 326, 21.11.1986, p. 40.
                                                                           Action brought on 27 October 2003 by the Commission
                                                                           of the European Communities against the Italian Republic
                                                                                                    (Case C-456/03)
Reference for a preliminary ruling by the High Court                                                 (2004/C 7/36)
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
23 October 2003, in the case of The Queen on the
application of 1) ABNA Ltd, 2) Denis Brinicombe (a part-
nership), 3) BOCM Pauls Ltd, 4) Devenish Nutrition Ltd,                    An action against the Italian Republic was brought before the
5) Nutrition Services (International) Ltd, 6) Primary Diets                Court of Justice of the European Communities on 27 October
Ltd against 1) Secretary of State for Health, 2) Food                      2003 by the Commission of the European Communities,
                        Standards Agency                                   represented by Karen Banks, acting as Agent.
                         (Case C-453/03)
                                                                           The applicant claims that the Court should:
                           (2004/C 7/35)                                   —     declare that, by failing to bring into force the laws,
                                                                                 regulations and administrative provisions necessary to
                                                                                 comply with Directive 1998/44/EC (1) of the European
                                                                                 Parliament and of the Council of 6 July 1998 on the legal
Reference has been made to the Court of Justice of the                           protection of biotechnological inventions, the Italian
European Communities by an order of the High Court of                            Republic has failed to fulfil its obligations under Article 15
Justice (England & Wales), Queen’s Bench Division (Adminis-                      of that directive;