CELEX: C2000/273/13
Language: en
Date: 2000-09-23 00:00:00
Title: Case C-287/00: Action brought on 20 July 2000 by the Commission of the European Communities against the Federal Republic of Germany

23.9.2000              EN                    Official Journal of the European Communities                                         C 273/9
Action brought on 20 July 2000 by the Commission of                     State universities and higher-education establishments are
the European Communities against the Federal Republic                   commissioned to carry out. It maintains that the argument
                           of Germany                                   advanced by the (German) Federal Government, to the effect
                                                                        that it is not possible in practice to draw a distinction between
                         (Case C-287/00)                                research activities and teaching activities (the latter being
                                                                        exempt from tax under Article 13(A)(1)(i), is based — as is
                                                                        apparent from the situation in other Member States — on
                         (2000/C 273/13)                                domestic factors which cannot be invoked by a Member State.
An action against the Federal Republic of Germany was                   (1) OJ L 145 of 13 June 1977, p. 1.
brought before the Court of Justice of the European Communi-
ties on 20 July 2000 by the Commission of the European
Communities, represented by Günter Wilms and Kilian Gross,
of its Legal Service, with an address for service in Luxembourg
at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.
                                                                        Reference for a preliminary ruling by the Tribunal de
The applicant claims that the Court should:                             grande instance de Paris (Third Chamber — Second
                                                                        section) by decision of that court of 23 June 2000 in the
(1) declare that, by exempting the research activities of State              case of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet
      universities and higher education establishments from
      turnover tax pursuant to Paragraph 4(21a) of the Umsatz-
      steuergesetz (Law on Turnover Taxes) of 12 December                                        (Case C-291/00)
      1996, the Federal Republic of Germany has failed to fulfil
      its obligations under Article 2 of the Sixth Council                                       (2000/C 273/14)
      Directive 77/388/EEC (1) of 17 May 1977 on the harmon-
      ization of the laws of the Member States relating to              Reference has been made to the Court of Justice of the
      turnover taxes — Common system of value added tax:                European Communities by order of the Tribunal de grande
      uniform basis of assessment, as most recently amended;            instance de Paris (Regional Court, Paris), received at the Court
                                                                        Registry on 23 June 2000, for a preliminary ruling in the case
(2) order the Federal Republic of Germany to pay the costs.             of S.A. LTJ Diffusion v S.A. Sadas Vertbaudet on the following
                                                                        question:
Pleas in law and main arguments                                         Does the prohibition contained in Article 5(1) of Directive
                                                                        89/104 of 21 December 1988 to approximate the laws of the
The exemption from turnover tax of research activities which            Member States relating to trade marks (1) only cover identical
State universities and higher-education establishments are              reproduction — with no element being added or omitted —
commissioned to carry out, pursuant to Paragraph 4(21a) of              of the sign or signs constituting a mark, or can it extend to:
the Umsatzsteuergesetz (Law on Turnover Taxes), in the
version thereof introduced by Paragraph 4(5) of the Umsatz-             (1) reproduction of the distinctive feature of a mark compo-
steuer-Änderungsgesetz (Law amending the legislation on                      sed of a number of elements?
turnover taxes) of 12 December 1996 (BGBI. 1996, Part I,
p. 1851 et seq.), is contrary to Article 2(1) of the Sixth              (2) reproduction of all the constituent elements of the mark
Directive. In the context of research activities which they are               where new elements are added?
commissioned to undertake (i.e. research projects normally
based on an agreement specifying inter alia the type and scope          (1) OJ L 40 of 11.2.1989, p. 1.
of the services and consideration to be furnished), State
universities and higher-education establishments provide ser-
vices and are thus, in principle, taxable persons within the
meaning of Article 4 of the Sixth Directive. According to
Article 5 of the directive, bodies governed by public law are
not, however, to be regarded as taxable persons in so far as
they are engaged in activities as public authorities.
                                                                        Action brought on 3 August 2000 by the Commission of
                                                                        the European Communities against the Grand-Duchy of
In undertaking research which they have been commissioned                                          Luxembourg
to carry out, State universities and higher-education establish-
ments are clearly not engaged in activities as public authorities.
                                                                                                 (Case C-297/00)
On the contrary, such activities are based on a private-law
commercial relationship between the university or higher-
education establishment concerned and the party by whom                                          (2000/C 273/15)
the research in question is commissioned. In the Commission’s
view, the effect of Part A of Article 13 of the Sixth Directive is      An action against the Grand-Duchy of Luxembourg was
to preclude exemption from tax in respect of research which             brought before the Court of Justice of the European Communi-