CELEX: C1998/055/30
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 5 December 1997 by the Commission of the European Communities against the Grand Duchy of Luxembourg (Case C-410/97)

C 55/16               EN                 Official Journal of the European Communities                                  20.2.98
Communities on 4 December 1997 by the Commission of                 Action brought on 5 December 1997 by the Commission
the European Communities, represented by B. J. Drijber              of the European Communities against the Grand Duchy of
and H. Michard, of its Legal Service, acting as Agents,                                       Luxembourg
with an address for service in Luxembourg at the office of
                                                                                           (Case C-410/97)
C. Gómez de la Cruz, of its Legal Service, Wagner Centre.
                                                                                              (98/C 55/30)
The Commission claims that the Court should:
                                                                    An action against the Grand Duchy of Luxembourg was
                                                                    brought before the Court of Justice of the European
Ð declare that, by not charging value added tax on tolls            Communities on 5 December 1997 by the Commission of
     for the use of highway infrastructures, contrary to            the European Communities, represented by Marie
     Articles 2 and 4 of the Sixth VAT Directive (77/388/           Wolfcarius, of its Legal Service, acting as Agent, with an
     EEC) of 17 May 1977 (1) the Kingdom of the                     address for service in Luxembourg at the office of Carlos
     Netherlands has failed to fulfil its obligations under         Gómez de la Cruz, of its Legal Service, Wagner Centre,
     the EC Treaty, and                                             Kirchberg.
                                                                    The applicant claims that the Court should:
Ð order the Kingdom of Netherlands to pay the costs.
                                                                    Ð declare that, by failing to adopt the laws, regulations
Pleas in law and main arguments adduced in support:                      or administrative provisions necessary to comply with
                                                                         Council Directive 92/29/EEC of 31 March 1992 on
                                                                         the minimum safety and health requirements for
The Commission Ð like the Netherlands Government Ð                       improved medical treatment on board vessels (1), the
takes the view that the tolls charged in the Netherlands                 Grand Duchy of Luxembourg has failed to fulfil its
constitute consideration for the supply of a service within              obligations under that Directive,
the meaning of Article 2(1) of the Sixth Directive.
However, the Netherlands Government wrongly considers
that the bodies governed by public law charged with the             Ð order the Grand Duchy of Luxembourg to pay the
operation of facilities for which a toll is levied are acting            costs.
in that regard as public authorities within the meaning of
the exception in Article 4(5) of the Sixth Directive. In the
first place, a body governed by public law is taxable as a          Pleas in law and main arguments adduced in support:
general rule and exemption is an exception to that rule.
The first subparagraph of Article 4(5) constitutes an
exception to Article 4(1) and (2). The fact that the second         The pleas in law and main arguments are analogous with
and third subparagraphs of Article 4(5) constitute                  those relied upon in Case C-406/97 (2); the time-limit for
exceptions, in turn, to the first subparagraph does not             transposition expired on 31 December 1994.
detract from the exceptional nature of that first
subparagraph; on the contrary, it confirms that it provides         (1) OJ L 113, 30.4.1992, p. 19.
for a systematic exception. In the Netherlands                      (2) OJ C 41, 7.2.1998, p. 11.
Government's argument, the rule and the exception
appear to be reserved. The fact that exemption constitutes
an exception is further confirmed by the fact that there
would have been no need for the exemptions under, in
particular, Articles 13 and 28 of the Sixth Directive if
bodies governed by public law had not been subject to the
VAT system. Any other interpretation would run counter              Action brought on 5 December 1997 by the Commission
to the general character of the Community VAT system.               of the European Communities against the Kingdom of
The charging of tolls is not inherent in the exercise of                                        Belgium
public authority, which includes the construction, making
available and maintenance of certain infrastructures such                                  (Case C-411/97)
as tunnels and bridges, but a separate activity forming
                                                                                              (98/C 55/31)
part of the operation thereof. There is no reason why
there should be no question of acting as a public authority
in relation to supplies of gas etc. whilst such should be the
case as regards the operation of bridges and tunnels.               An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 5 December 1997 by the Commission of the European
(1) OJ L 145, 13.6.1977, p. 1.                                      Communities, represented by Marie Wolfcarius, of its
                                                                    Legal Service, acting as Agent, with an address for service
                                                                    in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                    of its Legal Service, Wagner Centre, Kirchberg.