CELEX: C2003/083/10
Language: en
Date: 2003-04-05 00:00:00
Title: Case C-32/03: Reference for a preliminary ruling by the Højesterets Anke- og Kæremålsudvalg by order of that Court of 22 January 2003 in the case of I/S Fini H against Skatteministeriet

C 83/6                  EN                           Official Journal of the European Union                                          5.4.2003
Reference for a preliminary ruling by the Højesterets                        Action brought on 28 January 2003 by the Commission
Anke- og Kæremålsudvalg by order of that Court of                            of the European Communities against the United
22 January 2003 in the case of I/S Fini H against Skatte-                           Kingdom of Great Britain and Northern Ireland
                              ministeriet
                                                                                                       (Case C-33/03)
                           (Case C-32/03)
                                                                                                       (2003/C 83/11)
                           (2003/C 83/10)
                                                                             An action against the United Kingdom of Great Britain and
                                                                             Northern Ireland was brought before the Court of Justice of
                                                                             the European Communities on 28 January 2003 by the
Reference has been made to the Court of Justice of the                       Commission of the European Communities, represented by
European Communities by order of the Højesterets Anke- og                    R. Lyal, acting as agent, with an address for service in
Kæremålsudvalg (Appeals and Objections Committee of the                      Luxembourg.
Supreme Court) of 22 January 2003, received at the Court
Registry on 28 January 2003, for a preliminary ruling in the
case of I/S Fini H against Skatteministeriet (Danish Ministry of             The Applicant claims that the Court should:
Taxation) on the following questions:
                                                                             (1) declare that by granting taxable persons the right to
                                                                                   deduct value added tax in respect of certain supplies of
                                                                                   road fuel to non-taxable persons, contrary to Articles 17
                                                                                   and 18 of the Sixth Council Directive of 17 May 1977
Q ues ti o n 1
                                                                                   (77/388/EEC) on the harmonisation of the laws of the
                                                                                   Member States relating to turnover taxes — common
                                                                                   system of value added tax: uniform basis of assessment (1),
Can a person be regarded as independently carrying on an                           the United Kingdom has failed to fulfil its obligations
economic activity within the meaning of Article 4(1)-(3) of the                    under the EC Treaty;
Sixth VAT Directive ( 1) in a situation in which the person
concerned originally entered into a lease agreement as part of               (2) order the United Kingdom to pay the costs.
an independent economic activity but has now ceased that
actual activity, even though the lease continues to exist for a
particular period as a result of a non-termination clause, and
in which, after the actual activity ceases, no transactions                  Pleas in law and main arguments
subject to VAT are conducted by application of the lease for
the purpose of obtaining income therefrom on a continuing
basis.                                                                       By virtue of the VAT (Input Tax) (Person Supplied) Order 1991
                                                                             [hereinafter, ‘the disputed Order’], a taxable person is granted
                                                                             the right to deduct VAT in respect of supplies of road fuel to a
                                                                             non-taxable person, where the taxable person reimburses to
                                                                             the latter the cost of the fuel. Although the language of the
Q ues ti o n 2                                                               Order is general, it appears that the right of deduction is
                                                                             granted to employers in respect of purchases of road fuel by
                                                                             their employees.
Does the question whether or not the person concerned
actively seeks, during the remaining part of the period of non-
terminability, either to utilise the commercial lease to conduct             In the Commission’s view, the provisions of the Order are
transactions subject to VAT for the purpose of obtaining                     contrary to the Sixth VAT Directive in three respects and in
income therefrom on a continuing basis or to dispose thereof                 relation to two provisions. First of all, the disputed Order
have any bearing on the answer to Question 1 and does the                    grants a right of deduction in respect of supplies to another,
length of the period of non-terminability or the remaining part              non-taxable, person, contrary to Article 17(2)(a). Secondly, the
thereof likewise have any bearing?                                           measure does not state that deduction can be granted only in
                                                                             respect of goods and services used for the purposes of taxable
                                                                             transactions; it thus fails to comply with the condition to that
                                                                             effect set out in Article 17(2). Finally, deduction is granted in
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             the absence of any VAT invoice, contrary to Article 18(1)(a).
     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).
                                                                             (1 ) OJ L 145, 13.6.1977, p. 1.