CELEX: C2002/169/26
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-90/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 22 November 2001 in the case of Finanzamt Gummersbach against Gerhard Bockemühl

C 169/14                EN                       Official Journal of the European Communities                                      13.7.2002
                    ORDER OF THE COURT                                      1.   Is it possible to characterise as VAT, within the meaning
                                                                                 of the provisions of the Sixth VAT Directive (77/388/
                         (Third Chamber)                                         EEC) (1), the amount mentioned on an invoice by a person
                                                                                 who provides services to the State as a salaried employee,
                                                                                 when the person providing those services mistakenly
                         of 30 April 2002                                        considers that he is providing services to the State as a
                                                                                 self-employed person whilst, in reality, he is an employee
in Case C-181/01 P: N v Commission of the European                               and, on the recommendation of his employer, charges
                          Communities (1)                                        VAT on the invoices issued by him and not on his total
                                                                                 earnings received from the State, which in law constitute
(Appeal — Officials — Social security — Article 73 of the                        the tax basis of assessment to VAT, subsequently collected
Staff Regulations — Definition of ‘accident’ — Refusal to                        from his earnings, but where the amount thereof is
            recognise HIV infection as an accident)                              determined on the earnings by means of an internal
                                                                                 deduction method and the earnings are regarded as
                          (2002/C 169/24)                                        containing the amount of VAT owed, while the State
                                                                                 reduces the amount of legitimate earnings paid to that
                                                                                 person by the element of VAT they are calculated to
                    (Language of the case: French)                               contain?
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                           2.   Can there be a departure from the formal principle
                                                                                 governing the tax as set out in Article 21(1)(c) of the
                                                                                 Sixth VAT Directive (77/388/EEC) (that is to say, where
                                                                                 VAT is mentioned on the invoice or other document
In Case C-181/01 P: N, an official of the Commission of                          serving as an invoice, such tax is payable to the State),
the European Communities, residing in Brussels (Belgium),                        where the State, in performing that activity in pursuance
represented by G. Durazzo, — appeal against the judgment of                      of its public authority, is under Article 4(5) of the above
the Court of First Instance of the European Communities in                       directive not subject to tax, so as to render the mechanism
Case T-2/00 N v Commission [2001] ECR-SC I-A-37 and II-                          of deductions inapplicable thereto, and the said tax
135, seeking to have that judgment set aside, the other party                    cannot be and is not passed on to the end consumer
to the proceedings being the Commission of the European                          (namely, the individual who contracts with the State for
Communities, (Agent: J. Currall): — the Court (Third Chamber),                   the translation of documents), the provider of services
composed of: F. Macken, President of the Chamber, C. Gul-                        being entitled to reimbursement of the tax paid to the tax
mann (Rapporteur) and J.-P. Puissochet, Judges; Advocate                         authority after deduction of any input tax in order to
General: L.A. Geelhoed, Registrar: R. Grass, has made an order                   avoid the State’s enrichment as a result thereof?
on 30 April 2002, in which:
1.    The appeal is dismissed.
                                                                            (1) OJ L 145 of 13.6.1977, p. 1.
2.    N is ordered to bear the costs.
(1) OJ C 200 of 14.7.2001.
                                                                            Reference for a preliminary ruling by the Bundesfinanz-
Reference for a preliminary ruling by the Athens Appeal
                                                                            hof by order of that Court of 22 November 2001 in
Court by order of that Court of 31 January 2002 in the
                                                                            the case of Finanzamt Gummersbach against Gerhard
    case of the Greek State against Maria Karageorgou
                                                                                                       Bockemühl
                           (Case C-78/02)
                                                                                                     (Case C-90/02)
                          (2002/C 169/25)
                                                                                                    (2002/C 169/26)
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court
(Greece) of 31 January 2002, received at the Court Registry on
11 March 2002, for a preliminary ruling in the case of the                  Reference has been made to the Court of Justice of the
Greek State against Maria Karageorgou on the following                      European Communities by order of the Bundesfinanzhof
questions:                                                                  (Federal Finance Court) of 22 November 2001, received at the
 ---pagebreak--- 13.7.2002               EN                     Official Journal of the European Communities                                       C 169/15
Court Registry on 15 March 2002, for a preliminary ruling                 consideration of the procured goods and services to the
in the case of Finanzamt Gummersbach against Gerhard                      subsequently founded limited company and, from the outset,
Bockemühl on the following questions:                                     did not intend to carry out any other output transactions, and
                                                                          if, in the Member State concerned, a transfer of a totality of
                                                                          assets is not deemed to be a supply of goods or services (first
1.    Is it necessary under Article 18(1)(a) of Directive 77/388/         sentence of Article 5(8) and Article 6(5) of the Sixth Council
      EEC (1) for a person to whom services are supplied, who             Directive 77/388/EEC of 17 May 1977 on the harmonisation
      is liable to pay tax under Article 21(1) of Directive 77/           of the laws of the Member States relating to turnover taxes —
      388/EEC and who has been charged to tax as such, to be              Common system of value added tax) (1)?
      in possession of an invoice issued in accordance with
      Article 22(3) of Directive 77/388/EEC in order to exercise
      his right to deduct input tax?                                      (1) OJ L 145 of 13.6.1977, p. 1.
2.    If the answer to this question is in the affirmative, what
      details must the invoice contain? Is it detrimental if,
      instead of the supply of staff, the work carried out using
      that staff is given as the service supplied?
3.    What would be the consequences in law of inextinguish-              Appeal brought on 15 April 2002 by the Commission of
      able doubts that the person issuing the invoice supplied            the European Communities against the judgment deliver-
      the service invoiced?                                               ed on 30 January 2002 by the Court of First Instance of
                                                                          the European Communities (Second Chamber, Extended
                                                                          Composition) in Case T-54/99 max.mobil Telekommuni-
                                                                          kation Service GmbH v Commission of the European
(1) OJ L 145 of 13.6.1977, p. 1.                                          Communities, supported by the Kingdom of the Nether-
                                                                                                         lands
                                                                                                 (Case C-141/02 P)
                                                                                                  (2002/C 169/28)
                                                                          An appeal against the judgment delivered on 30 January 2002
Reference for a preliminary ruling by the Bundesfinanz-
                                                                          by the Court of First Instance of the European Communities
hof by order of that Court of 23 January 2002 in the case                 (Second Chamber, Extended Composition), in Case T-54/99
of Finanzamt Offenbach am Main-Land against Faxworld                      max.mobil Telekommunikation Service GmbH v Commission
Vorgründungsgesellschaft Peter Hünninghausen und
                                                                          of the European Communities(1), supported by the Kingdom
                       Wolfgang Klein GbR                                 of the Netherlands, was brought before the Court of Justice
                                                                          of the European Communities on 15 April 2002 by the
                          (Case C-137/02)                                 Commission of the European Communities, represented by
                                                                          Walter Mölls and Klaus Wiedner, of the Commission’s Legal
                                                                          Service, with an address for service at the office of Luis Escobar
                          (2002/C 169/27)                                 Guerrero, also of the Legal Service, Wagner Centre, C 254,
                                                                          Luxembourg.
                                                                          The appellant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof                      —     set aside the judgment of the Court of First Instance of
(Federal Finance Court) of 23 January 2002, received at the                     the European Communities of 30 January 2002 in Case
Court Registry on 12 April 2002, for a preliminary ruling in                    T-54/99 (max.mobil v Commission) in so far as it
the case of Finanzamt Offenbach am Main-Land against                            declares admissible the action for annulment brought by
Faxworld Vorgründungsgesellschaft Peter Hünninghausen und                       max.mobil against the Commission’s letter of 11 Decem-
Wolfgang Klein GbR on the following question:                                   ber 1998;
                                                                          —     dismiss as inadmissible the action for annulment brought
Is a partnership which has been established for the sole purpose                by max.mobil against the Commission’s letter of
of forming a company limited by shares (Aktiengesellschaft)                     11 December 1998;
entitled to deduct the value added tax paid on goods and
services procured by it, if, after that company has been                  —     order max.mobil to pay the costs of the proceedings
formed, that partnership effects by formal act a transfer for                   before the Court of Justice.