CELEX: C1998/055/36
Language: en
Date: 1998-02-20 00:00:00
Title: Reference for a preliminary ruling by the Amtsgericht Köln by order of that court of 3 September 1997 in the case of Jutta Johann against Hartmut Johann (Case C-430/97)

20.2.98                EN                  Official Journal of the European Communities                                   C 55/19
The Commission claims that the Court should:                          Reference for a preliminary ruling by the Amtsgericht
                                                                      Köln by order of that court of 3 September 1997 in the
                                                                              case of Jutta Johann against Hartmut Johann
                                                                                             (Case C-430/97)
Ð declare that, by refusing to refund VAT to taxable
     persons not established in France, in cases where those                                   (98/C 55/36)
     persons had sub-contracted part of their work to a
     taxable person established in France, the French
     Republic has failed to fulfil its obligations under the          Reference has been made to the Court of Justice of the
     eighth VAT Directive 79/1072/EEC (1), especially                 European Communities by order of the Amtsgericht Köln
     Article 2 thereof,                                               (Local Court, Cologne) of 3 September 1997, received at
                                                                      the Court Registry on 19 December 1997, for a
                                                                      preliminary ruling in the case of Jutta Johann v. Hartmut
                                                                      Johann on the following questions:
Ð order the French Republic to pay the costs.
                                                                      1. Do the Staff Regulations of officials of the European
                                                                          Communities, and in particular Annex VIII thereto
Pleas in law and main arguments adduced in support:                       (pension scheme) constitute a comprehensive and
                                                                          definitive determination of pension claims by a
                                                                          divorced wife, which excludes further claims under
                                                                          national law (in this case apportionment of pension
The Commission rejects the interpretation of Article 9(2)(c)              rights under the German law of obligations)?
of the sixth Directive (2) by the French authorities, who
reduce' the concept of the supply of services in
eliminating waste to the mere execution of works on                   2. Is it compatible with the Staff Regulations of officials
corporeal movable goods which are to be taxed at the                      of the European Communities and Article 6 of the EC
place where they are physically carried out. Such an                      Treaty for the divorce law of a Member State (in this
interpretation of the supply of services in eliminating                   case Germany), by burdening an official with a claim
waste, where such services are cross-frontier by nature,                  under the law of obligations for pension
results in a unilateral and arbitrary allocation of the right             apportionment, to place a heavier burden on that
to tax to the Member State in which the supplier of                       official solely on the ground that he is of German
services holding the main contract is established.                        nationality?
Moreover, the French authorities' approach generates
considerable legal uncertainty not only for the operator in
question in determining for his clients' purposes the VAT
regime of his supply under the contract, but also for the
tax authorities of the Member State in which that taxable
person is established. Such a conception has the effect of
creating potential situations of double taxation which the            Action brought on 19 December 1997 by the Commission
rules of Article 9, and Article 9(1) in particular, allow to                  of the European Communities against Ireland
be avoided by ensuring uniform, homogeneous and                                              (Case C-431/97)
rational taxation of the supplies of services in question
within the Community. Finally, for the purposes of                                             (98/C 55/37)
determining the place of taxation, the French authorities
effectively re-read or interpret the contract made between
the holder of the main contract and his client, without the           An action against Ireland was brought before the Court of
authorities of the Member State in which that supplier of             Justice of the European Communities on 19 December
services is taxable having been in a position to determine            1997 by the Commission of the European Communities,
whether or not that interpretation was capable of                     represented by Mr Berend Jan Drijber, a member of the
adversely affecting their own fiscal competence as defined            Legal Service, acting as Agent, with an address for service
within the scope of Article 9 of the sixth Directive, and             in Luxembourg at the office of Mr Carlos Gómez de la
Article 9(1) in particular.                                           Cruz, a member of its Legal Service, Centre Wagner.
                                                                      The applicant claims that the Court should:
(1) Eighth Council Directive on the harmonisation of the laws of
    the Member States relating to turnover taxes Ð arrangements
    for the refund of value added tax to taxable persons not
                                                                      Ð declare that, in failing to adopt the laws, regulations
    established in the territory of the country (OJ L 331,
    27.12.1979, p. 11).
                                                                          or administrative provisions necessary to comply with
(2) Sixth Council Directive on the harmonisation of the laws of           Council Directive 94/57/EC of 22 November 1994 on
    the Member States relating to turnover taxes Ð common                 common rules and standards for ship inspection and
    system of value added tax: uniform basis of assessment (OJ            survey organisations and for the relevant activities of
    L 145, 13.6.1977, p. 1).                                              maritime administrations (1), Ireland has failed to fulfil
                                                                          its obligations under this Directive and the Treaty,
                                                                      Ð order Ireland to pay the costs.