CELEX: C1995/074/05
Language: en
Date: 1995-03-25 00:00:00
Title: Reference for a preliminary ruling by the Østre Landsret by a decision of that court of 20 December 1994 in the case of Sparekassernes Datacenter v. Skatteministeriet (Case C-2/95)

25 . 3 . 95             EN                 Official Journal of the European Communities                                   No C 74/3
Italia Solo Musica Sri and Others ( C-338/54 ), ( 5 ) GETE            received at the Court Registry on 4 January 1995 , for a
(Tele Nova ) ( C-339/94 ), ( 6 ) Toscana TV and Others                preliminary ruling in the case of Sparekassernes Datacenter
( C-21/95 ), and ( 7) Nuova Antenna Tre SpA and Others                v. Skatteministeriet on the following questions:
( C-22/95 ) v. Ministero delle Poste e Telecomunicazioni on
Questions 1 and 2 in Case C-337/94 and on Question 2 in               Question 1
the other abovementioned cases .
                                                                      Should Article 13 B ( d ) Nos 3 to 5 of the Sixth VAT
Question 1                                                            Directive (*) be interpreted as meaning that VAT exemption
                                                                      should be granted for services of a type described above in
Is Directive 89/552/EEC (*) and, in particular, Articles 1 ( b )      Paragraphs 3 and 5 ( 2 )?
and 18 thereof, to be construed as meaning that the
expression 'forms of advertisements such as direct offers to          In that connection is the   granting of exemption from VAT
the public' in Article 1 8 is used under Community law, for           under Article 13 B (d )      Nos 3 to 5 precluded where a
the purposes of raising the ceiling of advertising                    transaction within the       meaning of that provision is
concentration to 20 % of daily transmission time:                     performed, wholly or in     part, electronically ?
(a ) purely by way of example and is capable of covering              Question 2
      other forms of advertising as well, apart from spot
      advertising, including for the purposes of this case            The wording used in Article 13 B ( d ) Nos 1 and 2 of the VAT
      'telepromotions' which, while not containing 'offers to         directive is 'by the person granting [the credit]' (ved den
      the public', could none the less be treated in the same         person, som har ydet lanene ) and 'by the person who' is
      way as such offers on account of some of their inherent         granting the credit' (ved den person, der har ydet kreditten).
      characteristics (telepromotions themselves can be               That description is not employed in Article 13 B ( d ) Nos 3
                                                                      to 5 .
      identified by the fact that, while suitable breaks clearly
      distinguish them from their editorial context,
      nevertheless there is generally a 'more time-consuming'         Should any importance be attached to that difference in the
      element of continuity for the insertion of shows and/or         interpretation of Article 13 B ( d) Nos 3 to 5 ?
      games than in the case of spot advertising); or:
                                                                      Question 3
( b ) by way of explanation or definition (in accordance with
      Article 12 of the contested legislation), as meaning that       A. Is it significant as far as the application of Article 3 B ( d)
                                                                           Nos 3 to 5 is concerned whether transactions are
      the possibility of increasing the daily concentration of
      advertising to 20 % relates only to 'offers to the public'           performed by financial institutions or by others ?
      in the strict sense and not to forms of advertising such as
      'telepromotions' as well, precisely because they lack the       B. Is it significant as far as the application of Article 13
      qualifying characteristics of an 'offer'?                            B (d) Nos 3 to 5 is concerned whether the entire
                                                                           financial service is performed by a financial institution
                                                                           which has a relationship with a customer ?
Question 2
                                                                      C. If it is unnecessary for the application of Article 13 B ( d)
Is Directive 89/552/EEC, and in particular Article 17 ( 1 ) ( b )          Nos 3 to 5 that the financial institution itself should
thereof, to be interpreted as precluding altogether any forms              perform the entire service, can the financial institution
of sponsorship in which the sponsor's name and/or logo                     purchase transactions wholly or in part from another
may be shown during the programme at times other than the                  person with the effect that the services performed by
beginning and/or the end of the programme (as provided                     that other person are covered by Article 13 B ( d ) Nos 3
for, subject to certain derogations, by Article 4 of the                   to 5 , or may particular requirements be made of that
contested decree ), or as freely permitting repeated forms of              other person ?
sponsorship even during the programme itself?
                                                                      Question 4
(!) OJ No L 298 , 17. 10 . 1989 , p . 23 .
                                                                      How is the wording used in Article 13 B ( d) Nos 3 to 4
                                                                      'transactions . . . concerning' to be interpreted ?
                                                                      This question seeks to ascertain whether the words
                                                                      'transactions . . . concerning' are to be understood as
Reference for a preliminary ruling by the 0stre Landsret by           meaning that VAT exemption should also be granted in
a decision of that court of 20 December 1994 in the case of           cases where a person either performs only a part of the
        Sparekassernes Datacenter v. Skatteministeriet                service or performs only some of the transactions within the
                           (Case C-2/95 )
                                                                      meaning of the Directive that are necessary for the supply of
                                                                      the complete financial service.
                            ( 95/C 74/05 )
                                                                      Question 5
Reference has been made to the Court of Justice of the
European Communities by a decision of the 0stre Landsret              In interpreting Article 13 B ( d) Nos 3 to 5 should
 [Eastern Regional Court] of 20 December 1994, which was              significance.be attached to the fact that the taxable person
 ---pagebreak--- No C 74/4                EN                  Official Journal of the European Communities                                       25 . 3 . 95
who requests tax exemption for transactions within the                       ( b ) If question (a ) is answered in the affirmative, is that
meaning of the provision performs those transactions on                             presumption rebuttable or irrebuttable ?
behalf of the financial institution in whose name the service
is performed ?                                                               (c ) If the presumption in question is rebuttable, is its
                                                                                    possible rebuttal governed solely by national
Question 6                                                                          procedural law, in particular the rules of evidence
                                                                                    of the     Member      State  concerned,    or    does
After the plaintiff's reorganization, is it significant as far as                   Community law also lay down requirements in that
application of Article 13 B (d ) Nos 3 to 5 is concerned that                       regard ?
the services in question are now provided by a company
which supplies the services to the associated financial                     ( d) If Community law makes the rebuttal of such a
institutions ?                                                                      presumption subject to certain requirements, what
                                                                                    significance attaches in the present case to the
It will be noted that the said services are invoiced by the                         following circumstances:
company to the plaintiff which in turn invoices its financial
institution members .                                                               — the respondent authority has stated that, of the
                                                                                        very much broader category of taxpayers
                                                                                        residing abroad, almost one half are its own
(*) Sixth Council Directive ( 77/388/EEC ) of 17 May 1977 on the
                                                                                        nationals, without adducing any evidence in
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform                         support of that assertion,
     basis of assessment ( OJ No L 145 , p. 1 ).
(2 ) Essentially electronic data-handling for SDC's members and                     — the      appellant,      who     pleads    indirect
     other financial institutions .                                                     discrimination based on nationality, has not
                                                                                        contested the correctness of that assertion by
                                                                                        the authority,
                                                                                    — the respondent authority is in an appreciably
                                                                                        better position than the appellant to collect
                                                                                        information which may possibly rebut the
Reference for a preliminary ruling from the Gerechtshof,                                aforementioned presumption ?
's-Hertogenbosch, by order of that court of 30 December
1994 in the case of F. C. Terhoeve v. Inspecteur der
  Belastingdienst Particulieren/Ondernemingen buitenland                3 . Is there any rule of Community law precluding a
                                                                            Member State, regardless of any question of ( indirect)
                            Case C-18/95 )                                  discrimination based on nationality, from imposing, in a
                             ( 95/C 74/06 )                                 given year, a heavier social security contributions
                                                                            burden on an employee who moves his residence during
Reference has been made to the Court of Justice of the                      that year from that Member State to another Member
European Communities by order of the Gerechtshof                            State, or' vice versa, than on an employee who, in
                                                                            otherwise similar circumstances, maintains his residence
( Regional Court of Appeal), 's-Hertogenbosch of
30 December 1994, which was received at the Court                           throughout the whole year in a single Member State ?
Registry on 23 January 1995 , for a preliminary ruling in the
case of F. C. Terhoeve v. Inspecteur der Belastingdienst               4 . If the imposition of a heavier contributions burden, as
Particulieren/Ondernemingen buitenland on the following                     referred to in the previous question, is in principle
questions:                                                                  incompatible with Article 7 or Article 48 (2 ) of the EEC
                                                                            Treaty, or with any other rule of Community law, can it
1 . Are the provisions of Community law on freedom of                       be justified by one or more of the following
      movement for workers applicable to a national of a                    circumstances, albeit that they are not regarded as
      Member State who moves his residence in the course of a               connected with each other :
      year from another Member State to the Member State of
     which he is a national and who is successively employed                — the measure results from legislation whereby the
      in that year in each of those Member States, and who                        levying of income tax and social security
      undeniably earned most of his income during that year                       contributions is intended, for the sake of
      in one of the two Member States ?                                           simplification, to coincide to a very great extent, if
                                                                                  not entirely,
2. (a) Does it follow from Community law, in particular
           Articles 7 and 48 (2 ) of the EEC Treaty and                     — solutions which, whilst maintaining that coherence,
           Article 7 (2 ) of Regulation ( EEC ) No 1612/68 , that                 seek to avoid the imposition of the heavier
           in the application of legislation operating to the                     contributions referred to above, result in technical
           disadvantage of emigrants and immigrants as                            problems of implementation or in possible
           regards liability to make social security                              over-compensation,
           contributions there is a presumption that such
           disadvantage mainly affects nationals of other                   — in certain cases, albeit not in the present case, joint
           States ?                                                               liability to income tax and social security