CELEX: C1997/387/10
Language: en
Date: 1997-12-20 00:00:00
Title: JUDGMENT OF THE COURT (First Chamber) of 6 November 1997 in Case C-261/96 (reference for a preliminary ruling from the Corte d'Appello di Venezia): Conserchimica Srl v. Amministrazione delle Finanze dello Stato (Customs duty - Post-clearance recovery of import duties - Limitation period)

C 387/6                                        Official Journal of the European Communities                                         20 . 12 . 97
               JUDGMENT OF THE COURT                                      by the Commission of the European Communities,
                           ( First Chamber)                               represented by Helene Michard and Barry Doherty,
                                                                          members of its Legal Service, acting as Agents, with an
                        of 6 November 1997                                address for service in Luxembourg at the office of Carlos
                                                                          Gomez de la Cruz, also a member of its Legal Service,
in Case C-261/96 ( reference for a preliminary ruling from                Centre Wagner.
the Corte d'Appello di Venezia): Conserchimica Srl v.
        Amministrazione delle Finanze dello Stato (')
(Customs duty — Post-clearance recovery of import duties                  The Applicant claims that the Court should:
                        — Limitation period)
                             ( 97/C 387/ 10 )                             — declare that in not subjecting tolls for the use of
                                                                                existing toll-roads and toll-bridges in Ireland to value­
                                                                                added tax contrary to the provisions of Articles 2,
                 (Language of the case: Italian)                                4 ( 1 ), ( 2 ) and ( 5 ) of the Sixth VAT Directive (') and by
                                                                                failing to make available to the Commission the
                                                                                amounts         of own      resources  and  interest   on    late
   (Provisional translation; the definitive translation will be                 payment as a consequence of this infringement Ireland
          published in the European Court Reports)                              has failed to fulfil its obligations under the EC Treaty,
In the Case C-261 /96 : reference to the Court under                      — order Ireland to bear the costs of these proceedings .
Article 177 of the EC Treaty by the Corte d'Appello di
Venezia ( Italy) for a preliminary ruling in the proceedings              Pleas in law and main arguments adduced in support:
pending before that court between Conserchimica Sri and
Amministrazione delle Finanze dello Stato — on the
interpretation of Article 2 of Council Regulation ( EEC )                 Value Added Tax
No 1697/79 of 24 July 1979 on the post-clearance
recovery of import duties or export duties which have not
                                                                          Taxable transactions
been required of the person liable for payment on goods
entered for a customs procedure involving the obligation
to pay such duties ( OJ 1979 L 197, p. 1 ) — the Court                    The heart of the present case is whether certain
( First Chamber ), composed of: D. A. O. Edward                           transactions are subject to VAT. As a result, it is necessary
( Rapporteur) acting as President of Chamber, R Jann and                  to establish the exact scope of the tax . Article 2
L. Sevon, Judges, B. Elmer, Advocate General; R. Grass,                   paragraph 1 of the Sixth VAT Directive provides that
Registrar, has given a judgment on 6 November 1997, in                    value added tax shall be levied on 'the supply of goods or
which it has ruled :
                                                                          services effected for consideration within the territory of
                                                                          the country by a taxable person acting as such'. Article 4
the second subparagraph of Article 2 (1 ) of Council                      of the same Directive provides some definitions :
Regulation (EEC) No 1697/79 of 24 July 1979 on the
post-clearance recovery of import duties or export duties                 ' 1 . 'Taxable person' shall mean any person who
which have not been required of the person liable for                           independently carries out in any place any economic
payment on goods entered for a customs procedure                                activity specified in paragraph 2 whatever the purpose
involving the obligation to pay such duties does not apply                      or results of that activity.
 to duties not collected in respect of goods entered for a
 customs procedure where the obligation to pay those
duties was incurred on a date prior to the entry into force                 2 . The economic activities referred to in paragraph 1
 of that regulation.                                                            shall comprise all activities of producers, traders and
                                                                                persons supplying services (. . .). The exploitation of
 (') OJ C 269, 14 . 9 . 1996 .                                                  tangible or intangible property for the purpose of
                                                                                obtaining income therefrom on a continuing basis
                                                                                shall also be considered an economic activity '.
                                                                                (Emphasis added)
                                                                          The Commission submits that one example of 'the
                                                                          exploitation of tangible or intangible property for the
 Action brought on 21 October 1997 by the Commission                      purpose of obtaining income therefrom on a continuing
         of the European Communities against Ireland                       basis' is operating a road and charging a toll for its use .
                           ( Case C-358/97 )                              As a result, such operations are an economic activity and
                                                                           hence the person carrying them out is a taxable person for
                              ( 97/C 387/ 11 )
                                                                           the purposes of the Sixth VAT Directive.
 An action against Ireland was brought before the Court of                The Commission submits that a transaction which falls
Justice of the European Communities on 21 October 1997                     under the scope of the Sixth VAT Directive is subject to