CELEX: C1999/160/07
Language: en
Date: 1999-06-05 00:00:00
Title: Case C-83/99: Action brought on 8 March 1999 by the Commission of the European Communities against the Kingdom of Spain

C 160/4                EN                    Official Journal of the European Communities                                       5.6.1999
Action brought on 8 March 1999 by the Commission of                     Reference for a preliminary ruling by the VAT and Duties
the European Communities against the Kingdom of Spain                   Tribunals, London, by decision of that court of 14 January
                                                                        1999, in the case of Freemans plc against Commissioners
                                                                                             of Customs and Excise.
                          (Case C-83/99)
                                                                                                  (Case C-86/99)
                         (1999/C 160/07)                                                         (1999/C 160/08)
                                                                        Reference has been made to the Court of Justice of the
An action against the Kingdom of Spain was brought before               European Communities by a decision of the VAT and Duties
the Court of Justice of the European Communities on 8 March             Tribunals, London of 14 January 1999, which was received at
1999 by the Commission of the European Communities,                     the Court Registry on 12 March 1999, for a preliminary ruling
represented by Miguel Dı́az-Llanos La Roche, Legal Adviser,             in the case of Freemans plc against Commissioners of Customs
and by Carlos Gómez de la Cruz, of its Legal Service, acting as        and Excise, on the following questions:
Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Centre, Kirchberg.                                                      — What, on a proper construction of Article 11A and 11C of
                                                                             the Sixth Directive (1), is the taxable amount in respect of
                                                                             goods supplied by mail order from a catalogue to a
                                                                             customer for the customer’s own use where the supplier in
                                                                             operating self-financed credit terms allows a discount from
The applicant claims that the Court should:                                  the catalogue price to the customer (‘AOP discount’) with
                                                                             the AOP discount being credited to the customer as and
                                                                             when instalment payments are made to the supplier (or
                                                                             use made of AOP discount in reducing or discharging an
— declare that, by applying a reduced rate to the provision of
                                                                             instalment payment) but where the AOP discount which
     services consisting in making a road infrastructure available
                                                                             has accrued on payments made is available for immediate
     to road users, the Kingdom of Spain has failed to fulfil its
                                                                             withdrawal or use by the customer even though future
     obligations under Article 12 of the Sixth Council Directive
                                                                             instalment payments will be due from that customer?
     (77/388/EEC) of 17 May 1977,
                                                                        — Is the taxable amount:
— order the Kingdom of Spain to pay the costs.
                                                                             1. the full catalogue price of the goods sold to the
                                                                                 customer less the AOP discount on that price, or
Pleas in law and main arguments                                              2. the full catalogue price of the goods sold to the
                                                                                 customer with a reduction as and when the AOP
                                                                                 discount is credited to a customer, or
The provision of services consisting in making a road infra-
structure available to road users is not comparable to the                   3. the full catalogue price of the goods sold to the
‘transport of passengers and their accompanying luggage’                         customer with a reduction as and when the AOP
under point 5 of Annex H to the Sixth Directive. The two                         discount is withdrawn or used by a customer, or
services provided are totally different: in case of transport, the
taxable person undertakes to take responsibility for persons or
goods and move them from one place to another; in the case                   4. some other and, if so what, amount.
of motorways, the concession holder makes available to the
road user a road infrastructure so that he may travel more
rapidly. The Commission cannot see on what principle of non
misinterpretation or neutrality Spain relies in order to place
such a wide construction on the terms of Annex H that its               (1) Directive 77/388/EEC of the Council of 17 May 1977 on the
practical effects are totally annulled.                                     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, 13.6.1977, p. 1).