CELEX: C1997/318/18
Language: en
Date: 1997-10-18 00:00:00
Title: Reference for a preliminary ruling by the Court of Appeal, London, by order of that court dated 29 July 1997, in the case of 1. Royscot Leasing Ltd and Royscot Industrial Leasing Ltd 2. Allied Domecq plc 3. T. C. Harrison Group Ltd against Commissioners of Customs and Excise (Case C-305/97)

C 318/10            1 EN                  Official Journal of the European Communities                                             18 . 10 . 97
the European Communities in Case T-237/95 between                           to be used by a taxable person " for the purposes of his
Fernando Carbajo Ferrero and European Parliament was                        taxable transactions ?
brought before the Court of Justice of the European
Communities on 26 August 1997 by Fernando Carbajo
Ferrero, represented by Georges Vandersanden and Laure               2 . In particular, may the right to deduct be excluded:
Levi, of the Brussels Bar, with an address for service in
Luxembourg at Fiduciaire Myson, 30 Rue de Cessange .                        ( a ) even though the cars are essential tools of the
                                                                                  business in the sense that the business by definition
The appellant claims that the Court should:                                       would not exist without the cars ( e.g. the car­
                                                                                  leasing business of the Royscot companies, and the
                                                                                  car-leasing and car-hire businesses of the T. C.
— set aside the judgment of the Court of First Instance of                        Harrison group )?
     the European Communities of 12 June 1997 in Case
     T-237/95 between the same parties,
                                                                            ( b ) even though the cars are never available for
                                                                                  private use by the taxable person or his staff
— accordingly, grant the form of order sought by the                              (e.g. , the car-leasing businesses of the Royscot
     applicant at first instance,                                                 companies and of the T. C. Harrison group )?
— order the defendant to pay all the costs, including                       ( c ) even though the taxable person could not carry
     those incurred at first instance .                                           on his business at all without the cars ( e.g. ,
                                                                                  'demonstrator' cars acquired by a member of the
                                                                                  T. C. Harrison group in its dealership business )?
Pleas in law and main arguments adduced in support:
                                                                            ( d ) even though the taxable person 's employees could
The appellant maintains all the pleas and arguments of                            not perform their duties without the cars ( e.g. ,
his action and bases the appeal on infringement of                                the travelling salesmen employed by the Allied
Community law by the Court of First Instance . It is based,                       Domecq group )?
further, on a breach of procedure inasmuch as the Court
of First Instance refused to direct the Parliament to
                                                                         . ( e ) notwithstanding ( a ), (c ) or ( d ) above, on the
produce a letter on which the action relied in order to cast
                                                                                  ground that the taxable person's employees are
doubt on the impartiality of a member of the selection
board .
                                                                                  permitted to make some, subsidiary, private use of
                                                                                  the cars outside working hours ?
                                                                     3 . Is it material to question 2 (e ) above to consider
                                                                            whether :
Reference for a preliminary ruling by the Court of Appeal,                  ( a ) an apportionment of the expenditure on the cars
London, by order of that court dated 29 July 1997, in the                         can be made between the business use and the
case of 1 . Royscot Leasing Ltd and Royscot Industrial                            private use ?
Leasing Ltd 2 . Allied Domecq pic 3 . T. C. Harrison
 Group Ltd against Commissioners of Customs and Excise                      ( b ) the permission to make private use of the cars is a
                        ( Case C-305/97 )                                         taxable transaction for VAT purposes because the
                          ( 97/C 318/18 )
                                                                                  taxable person charges the employees a fee for that
                                                                                  use ?
Reference has been made to the Court of Justice of the               4. Did the authorization granted to Member States by
European Communities by an order of the Court of                            the second subparagraph of Article 17 ( 6 ) lapse at the
Appeal, London, dated 29 July 1997, which was received                      end of the four year period referred to in the first
at the Court Registry on 26 August 1997, for a                              subparagraph ?
preliminary ruling in the case of 1 . Royscot Leasing Ltd
and Royscot Industrial Leasing Ltd 2 . Allied Domecq pic
3 . T. C. Harrison Group Ltd against Commissioners of                (') Second Council Directive 67/228/EEC of 11 April 1967 on the
Customs and Excise on the following questions:                             harmonization of legislation of Member States concerning
                                                                           turnover taxes, structure and procedures for application of the
                                                                           common system of value added tax ( OT 71 , 14 . 4 . 1967,
1 . Did Article 11 ( 4 ) of the second Council Directive of                p. 1303 ).
     11 April 1967 ( ! ) authorize Member States to                  ( 2 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of the laws of the Member States relating to
     introduce or retain, and does the second subparagraph                 turnover taxes — common system of value added tax: uniform
     of Article 17 ( 6 ) of the sixth Council Directive of                 basis of assessment ( OJ L 145 , 13 . 6 . 1977, p. 1 ).
     17 May 1977 (2 ) authorize Member States to retain,
     national laws which exclude, without limit, the right
     to deduct VAT payable on the purchase of motor cars