CELEX: C2001/173/47
Language: en
Date: 2001-06-16 00:00:00
Title: Case C-149/01: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court of 13 March 2001, in the case of Commissioners of Customs and Excise against First Choice Holidays plc

C 173/28               EN                    Official Journal of the European Communities                                      16.6.2001
Reference for a preliminary ruling by the Court of Appeal                     2.    Does ‘the total amount to be paid by the traveller’
(England & Wales) (Civil Division), by order of that court                          within Article 26.2 include the additional sum
of 13 March 2001, in the case of Commissioners of                                   referred to in (c) above?
    Customs and Excise against First Choice Holidays plc
                         (Case C-149/01)                                (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                            harmonization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax: uniform
                                                                            basis of assessment (OJ L 145, 13.06.77, p. 1).
                         (2001/C 173/47)
Reference has been made to the Court of Justice of the
European Communities by an order of the Court of Appeal
(England & Wales) (Civil Division) of 13 March 2001, which
was received at the Court Registry on 26 March 2001, for a
preliminary ruling in the case of Commissioners of Customs
and Excise against First Choice Holidays, on the following
questions:
                                                                        Action brought on 9 April 2001 by the Commission of
                                                                         the European Communities against the French Republic
Where a tour operator within the meaning of Article 26 of
Council Directive 77/388/EEC (1)
                                                                                                  (Case C-150/01)
(a)   supplies package holidays to customers through the
      disclosed agency of a travel agent;                                                        (2001/C 173/48)
(b) permits the agent to arrange the supply of package                  An action against the French Republic was brought before the
      holidays at a discount from the price published in the            Court of Justice of the European Communities on 9 April
      tour operator’s brochure (the customer being liable to            2001 by the Commission of the European Communities,
      pay only the discounted price for the holiday);                   represented by M. Patakia and B. Mongin, acting as Agents,
                                                                        with an address for service in Luxembourg.
(c)   requires the agent who arranges the supply of a package
      holiday at a discount not only to pass on to the tour             The Commission claims that the Court should:
      operator the price actually charged to the customer but
      also to pay to the tour operator an additional sum equal
      to the discount given to the customer (who is unaware of          1.    declare that, by retaining legislation which requires
      the financial arrangements between the tour operator and                intellectual property advisers established in other Member
      the agent), so that the agent accounts to the tour operator             States to appear on the register of French intellectual
      for the full brochure price of the holiday;                             property advisers, and thus to possess the French qualifi-
                                                                              cation and to be ordinarily resident or have a place of
                                                                              business in France, in order to supply services in France,
(d) agrees to pay the agent a commission based on the                         the French Republic has failed to fulfil its obligations
      brochure price of the holiday, which in practice is paid                under Articles 49 to 55 of the EC Treaty and Council
      by set-off against the sums due from the agent as                       Directive 89/48/EEC of 21 December 1988 on a general
      mentioned in (c) above;                                                 system for the recognition of higher-education diplomas
                                                                              awarded on completion of professional education and
                                                                              training of at least three years’ duration (1);
(e)   does not know whether or not the agent has arranged the
      sale of a particular holiday at a discounted price, or the
      amount of the discount;                                           2.    order the French Republic to pay the costs.
(f)   as between itself and the agent, accounts for the sale of
      the holiday on the basis that it has been paid the full           Pleas in law and main arguments
      brochure price of the holiday;
                                                                        —     By making an ‘intellectual property adviser’ who provides
      1.    Having established the above facts, how should the                services subject to the same obligations as an ‘intellectual
            additional sum (referred to in (c) above) paid by the             property adviser’ established in France, the French legis-
            travel agent to the tour operator be characterised for            lation infringes Article 49 EC. While the pursuit, even as
            the purposes of Article 26.2?                                     a provider of services, of an activity which is not