CELEX: C2000/047/22
Language: en
Date: 2000-02-19 00:00:00
Title: Case C-439/99: Action brought on 17 November 1999 by the Commission of the European Communities against the Italian Republic

C 47/14                EN                    Official Journal of the European Communities                                      19.2.2000
The Commission of the European Communities claims that                  The applicant claims that the Court should:
the Court should:
                                                                        1. Declare that the Italian Republic has failed to fulfil its
— declare that by authorising, under certain conditions, the               obligations under Article 49 et seq. EC by maintaining in
     exclusion from the taxable amount for VAT purposes of                 force the following provisions:
     the ‘service charges’ claimed by certain taxable persons,
     the French Republic has failed to fulfil its obligations              — Article 2, first paragraph, and Article 7 of Decree Law
     under Article 2(1) and 11A(1)(a) of Council Directive                     No 454 of 29 January 1934;
     77/388/EEC of 17 May 1977 (Sixth VAT Directive) (1);
— Order the French Republic to pay the costs.                              — Article 2, first paragraph, of Presidential Decree No 7
                                                                               of 15 January 1972;
Pleas in law and main arguments                                            — Article 2(4), (6) and (7) of Presidential Decree No 390
                                                                               of 18 April 1994;
Whilst Articles 266(1)(a) and 267-I of the French General Tax
Code (Code Général des Impôts) correctly transpose the                     — Article 4 of Regional Law of Liguria No 40 of 14 July
provisions of the Sixth VAT Directive, the same is not true                    1978;
of an administrative practice which was confirmed by an
instruction issued on 31 December 1976. A tip in the form of               — Article 6(1)(e), (f), (g) and (h), Article 6(4) and Article 7
a ‘service charge’ centralised by the employer forms an integral               of Regional Law of the Veneto No 35 of 2 August
part of the total price paid by the customer by way of                         1988;
consideration for the service provided by the service provider
and it is therefore the total price, including the service charge,         — Article 2, sixth paragraph, Article 4, first indent,
which constitutes the consideration actually received. That                    Article 6, third and fourth paragraphs and Article 10(a)
charge is different from an extra tip freely and spontaneously                 of Regional Law of the Marches No 16 of 12 March
left by the customer for a particular member of staff.                         1979;
In addition, the Commission points out that to allow that                  — Article 4, Article 5, sixth paragraph, subparagraphs (a)
practice amounts to a distortion of competition between those                  and (c), Article 6, first paragraph, Article 8, first and
establishments which operate the ‘service charge’, a distortion                second paragraphs, and Article 16 of Regional Law
resulting from the arbitrary nature of the purely formal                       No 43 of Emilia-Romagna of 26 May 1980;
conditions imposed by the French Government in order to
qualify for the derogation. Those conditions are wholly alien              — Article 4(1)(c), Article 4(2) and Article 15, third para-
to the fundamental criterion for determining the taxable basis                 graph, of Regional Law of Lombardy No 45 of 29 April
for VAT purposes, namely the consideration actually received                   1980;
by the service provider.
                                                                           — Article 3, Article 4 and Article 8, last paragraph, of
( 1) OJ L 145 of 13.06.1977, p. 1.                                             Regional Law No 10 of Friuli Venezia Giulia of 23 Feb-
                                                                               ruary 1981;
                                                                           — Article, 2, last paragraph, and Article 6 of Regional
                                                                               Law No 75 of Abruzzo of 13 November 1980;
                                                                           — Article 3, Article 5, Article 6, third and fourth para-
                                                                               graphs, Article 12 and Article 19, first paragraph, of
Action brought on 17 November 1999 by the Com-                                 Provincial Law No 35 of the Autonomous Province of
mission of the European Communities against the Italian                        Trento of 2 September 1978;
                             Republic
                                                                        2. Declare that the Italian Republic has failed to fulfil its
                         (Case C-439/99)                                   obligations under Article 49 et seq. and Article 43 et seq.
                                                                           EC by maintaining in force the following provisions:
                          (2000/C 47/22)
                                                                           — Article 3 of Presidential Decree No 7 of 15 January
An action against the Italian Republic was brought before the                  1972;
Court of Justice of the European Communities on 17 Novemb-
er 1999 by the Commission of the European Communities,                     — Article 2(c) and (d), Article 3(b) and (c), and Article 5(a)
represented by Enrico Traversa, Legal Adviser, and Maria                       of Regional Law No 12 of Liguria of 3 November
Patakia, of its Legal Service, acting as Agents, assisted by                   1972;
Andrea Cevese, of the Vicenza Bar, with an address for service
in Luxembourg at the office of Carlos Gómez de la Cruz,                   — Article 8(1) of Regional Law No 35 of the Veneto of
Wagner Centre, Kirchberg.                                                      2 August 1988;
 ---pagebreak--- 19.2.2000              EN                    Official Journal of the European Communities                                        C 47/15
    — Article 6, third paragraph, subparagraphs 3 and 4,                    — it must be non profit-making;
         Article 8, second paragraph, and Article 11(a), (b), (c)
         and (d) of Regional Law No 43 of Emilia-Romagna of                 — it must comply with particularly stringent deadlines as
         26 May 1980;                                                           part of the compulsory administrative procedure for
                                                                                authorisation;
    — Article 5(2) and (5), Article 10(4), Article 11(2) and (3)
         and Article 15(1) of Regional Law of Lombardy No 45                — it must be listed in the official calendar;
         of 29 April 1980;
                                                                            — exhibitors must be producers, which impliedly
    — Article 5, Article 13, Article 14 and Article 15(a) of                    excludes suppliers of services as opposed to goods.
         Regional Law No 10 of Friuli Venezia Giulia No 10 of
         23 February 1981;                                              (C) The Commission maintains that the provisions laying
                                                                            down the following requirements are contrary to Com-
                                                                            munity law:
    — Article 7 of Regional Law No 75 of Abruzzo of
         13 November 1980;
                                                                            — the appointment, in whole or in part, of trade fair
                                                                                bodies — such as the governing council, the manage-
    — Article 6, Article 7 and Article 23 of Provincial Law                     ment board, the auditors, the Chairman, the Secretary
         No 35 of the Autonomous Province of Trento of                          General, etc — requires the participation of the public
         2 September 1978;                                                      authorities or various local bodies;
3. Order the Italian Republic to pay the costs of the proceed-              — the organisation of trade fairs requires the partici-
    ings.                                                                       pation, even in a purely consultative capacity, of bodies
                                                                                comprising businessmen already operating in the area
                                                                                concerned for the purposes of recognition and author-
                                                                                isation of the organiser, and the grant of public funds
Pleas in law and main arguments                                                 to the organiser;
(A) The Commission maintains that the following provisions                  — the organisation of trade fairs, markets and exhibitions
    of Italian law create a serious obstacle to the organisation                requires that at least one local body be represented in
    of trade fairs especially for those undertakings — mostly                   the body of founders or members.
    non-Italian — which have no stable infrastructure in Italy
    and therefore intend to conduct business in Italy on a
    purely temporary and occasional basis:
    — those requiring the organiser of a trade fair to obtain
         official recognition from the Italian regional or local
         authorities;
                                                                        Appeal brought on 22 November 1999 by Cordis Obst
    — those requiring the organiser of a trade fair to take a           und Gemüse Großhandel GmbH against the judgment
         particular legal form, thereby excluding other categori-       delivered on 28 September 1999 by the Fifth Chamber of
         es of trader;                                                  the Court of First Instance of the European Communities
                                                                        in Case T-612/97 between Cordis Obst und Gemüse
                                                                        Großhandel GmbH and the Commission of the European
    — those requiring the organiser of a trade fair to have                    Communities, supported by French Republic
         headquarters, an office or some source of ongoing
         structural support at national or local level;
                                                                                               (Case C-442/99 P)
    — those requiring trade fairs to be periodic;
                                                                                                 (2000/C 47/23)
    — those requiring trade fairs to conform with the agenda
         set by a region in the context of regional projects.           An appeal against the judgment delivered on 28 September
                                                                        1999 by the Fifth Chamber of the Court of First Instance of
(B) The Commission maintains that it is manifestly inconsist-           the European Communities in Case T-612/97, between Cordis
    ent with the principle of the freedom to provide services to        Obst und Gemüse Großhandel GmbH and the Commission of
    require that the organisation of trade fairs and exhibitions        the European Communities, supported by French Republic,
    satisfy the following conditions:                                   was brought before the Court of Justice of the European
                                                                        Communities on 22 November 1999 by Cordis Obst und
                                                                        Gemüse Großhandel GmbH, represented by Dr Gert Meier,
    — it must represent the sole business pursuit;                      Rechtsanwalt, of 313 Berrenrather Straße, D-50937 Cologne.