CELEX: C2002/131/13
Language: en
Date: 2002-06-01 00:00:00
Title: Case C-109/02: Action brought on 22 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

1.6.2002                EN                   Official Journal of the European Communities                                          C 131/7
The Commission claims that the Court should:                            The applicant claims that the Court should:
1.     Declare that, by failing to adopt the laws, regulations
       and administrative provisions necessary to comply with           1.    declare that, by applying a reduced rate of turnover tax
       Council Directive 1999/32/EC (1) of 26 April 1999                      to both services provided by musical ensembles which
       relating to a reduction in the sulphur content of certain              put on their own public performances or do so through
       liquid fuels and amending Directive 93/12/EEC, or in any               an events organiser and services provided by soloists
       case by failing to notify the Commission of them, the                  putting on their own public performances, whilst the
       Federal Republic of Germany has failed to fulfil its                   services of soloists who work for an organiser are subject
       obligations under Article 10 of that directive;                        to the normal rate, the Federal Republic of Germany has
                                                                              failed to fulfil its obligations under the third subparagraph
                                                                              of Article 12(3)(a) of the Sixth Council Directive 77/388/
2.     Order the Federal Republic of Germany to pay the costs.                EEC (1) of 17 May 1977 on the harmonisation of the laws
                                                                              of the Member States relating to turnover taxes —
                                                                              Common system of value added tax: uniform basis of
                                                                              assessment;
Pleas in law and main arguments
                                                                        2.    order the Federal Republic of Germany to pay the costs.
It follows from the binding nature of directives under the third
paragraph of Article 249 EC and from the first paragraph of
Article 10 EC that the Member States to which a directive is
addressed are obliged to transpose its provisions into national
law in such a way that they become fully effective in practice
from the date of expiry of the period for transposition. The
period prescribed by Article 10 of the directive expired on
1 July 2000.
                                                                        Pleas in law and main arguments
(1) OJ L 121 of 11.5.1999, p. 13.
                                                                        The action is directed against the rule in subparagraph (7)(a)
                                                                        of Article 12(2) of the German Law on turnover taxes, which
                                                                        is incompatible with the principles of the Sixth VAT Directive
                                                                        (fiscal neutrality, objectivity and uniform rate of duty). The
                                                                        third subparagraph of Article 12(3)(a) of the Sixth VAT
                                                                        Directive, in conjunction with Annex H thereto, does not
                                                                        permit a taxable activity to be divided into subgroups for the
                                                                        purpose of applying different rates of tax to such subgroups,
Action brought on 22 March 2002 by the Commission of                    as the rule at issue provides. Community law does not
the European Communities against the Federal Republic                   recognise an objective distinction as regards the different
                           of Germany                                   treatment at issue of the activities of performing artists
                                                                        according to whether the artists are appearing as soloists or as
                                                                        part of an ensemble. In the Commission’s view there is also
                         (Case C-109/02)                                competition between similar services provided by soloists and
                                                                        ensembles as ‘performing artists’ for the purposes of the
                                                                        third subparagraph of Article 12(3)(a), in conjunction with
                         (2002/C 131/13)                                paragraph 8 of Annex H to, the Sixth VAT Directive.
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-            (1) OJ L 145 of 13.6.1997, p. 1.
ties on 22 March 2002 by the Commission of the European
Communities, represented by Mr Enrico Traversa, Legal
Adviser, and Mr Günter Wilms, Member of its Legal Service,
with an address for service in Luxembourg at the office of
Mr Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg, Luxembourg.