CELEX: C1998/340/16
Language: en
Date: 1998-11-07 00:00:00
Title: Action brought on 14 September 1998 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-338/98)

C 340/10               EN                Official Journal of the European Communities                                        7.11.98
and not, as the French authorities maintain, by resolution          latter provision states that the invoice must be issued by a
of the Intercommunal Public Transport Board of                      taxable person to another taxable person and that it must
26 October 1989, that is to say before even Council                 relate to goods or services supplied by him to that other
Directive 90/531/EEC of 17 September 1990 on the                    person. The Netherlands rules at issue in the present case
procurement procedures of entities operating in the water,          do not refer to any such invoice.
energy, transport and telecommunications sectors (2)
entered into force.
                                                                    The economic considerations expounded by the
                                                                    Netherlands Government are not wholly without merit.
(1) OJ L 199 of 9.8.1993, p. 84.                                    However, they cannot result in the conclusion that the
(2) OJ L 297 of 29.10.1990, p. 1.
                                                                    legislation is to be interpreted in a manner contrary to its
                                                                    manifest provisions. Ratio legis non est lex.
                                                                    (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                        harmonisation of the laws of the Member States relating to
                                                                        turnover taxes Ð Common system of value added tax:
Action brought on 14 September 1998 by the Commission                   uniform basis of assessment (OJ L 145 of 13.6.1977, p. 1).
of the European Communities against the Kingdom of the
                           Netherlands
                        (Case C-338/98)
                          (98/C 340/16)
                                                                    Action brought on 17 September 1998 by Italian Republic
An action against the Kingdom of the Netherlands was                            against Council of the European Union
brought before the Court of Justice of the European                                         (Case C-340/98)
Communities on 14 September 1998 by the Commission
of the European Communities, represented by Emile                                             (98/C 340/17)
Mennens and Enrico Traversa, acting as Agents, with an
address for service in Luxembourg at the office of Carlos
                                                                    An action against the Council of the European Union was
Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                    brought before the Court of Justice of the European
Kirchberg.
                                                                    Communities on 17 September 1998 by the Italian
                                                                    Republic, represented by Professor Umberto Leanza,
The applicant claims that the Court should:                         acting as Agent, assisted by Ivo Braguglia, Avvocato dello
                                                                    Stato, with an address for service in Luxembourg at the
Ð declare that, by providing, contrary to Articles 17(2)(a)         Italian Embassy, 5 rue Marie-AdeÂlaïde.
    and 18(1)(a) of the Sixth VAT Directive 77/388/
    EEC (1), that an employer subject to VAT may deduct             The applicant claims that the Court should:
    part of the expenses reimbursed to an employee for
    the use of a private motor vehicle for business
    purposes, the Kingdom of the Netherlands has failed             Ð annul Article 1 of Council Regulation (EC) No 1361/
    to fulfil its obligations under the EC Treaty;                       98 (1) in so far as it does not fix the derived
                                                                         intervention price for white sugar for all areas of Italy
                                                                         for the sugar-marketing year 1998/99; in addition, if
Ð order the Kingdom of the Netherlands to pay the                        need be, annul Article 1(2) of Council Regulation (EC)
    costs.                                                               No 1360/98 (2) in so far as it fixes the intervention
                                                                         price for Italy also;
Pleas in law and main arguments adduced in support:
                                                                    Ð order the Council of the European Union to pay the
The rule at issue, which is laid down in Article 23                      costs of the proceedings.
of the Netherlands Uitvoeringsbesluit Omzetbelasting
(Implementing Regulation concerning Turnover Taxes)                 Pleas in law and main arguments adduced in support:
1968, is contrary to a fundamental aspect of the Sixth
VAT Directive, since it permits the deduction of cost
elements other than the VAT charged at the previous stage           For the marketing year 1998/99 both the intervention
by a taxable person to the taxable person making the                price and the derived intervention prices were fixed by
deduction.                                                          Regulations (EC) No 1360/98 and (EC) No 1361/98,
                                                                    which entered into force on 1 July 1998.
That fundamental incompatibility between the system
operating in the Netherlands and the Sixth VAT Directive            By so doing, the Council acted in contravention of the
is complemented by an incompatibility as regards formal             provisions contained in Article 3(4) and (5) of the basic
requirements. Article 18(1)(a) of the Sixth VAT Directive           Regulation (EEC) No 1785/81 (3), since it fixed the
provides that, in order to exercise his right to deduct, the        intervention prices (including the derived intervention
taxable person must, prior to making the deduction, hold            prices) in June 1998, whereas it should have fixed them by
an invoice drawn up in accordance with Article 22(3); the           August 1997.