CELEX: C1998/055/38
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 22 December 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-432/97)

C 55/20               EN                  Official Journal of the European Communities                                   20.2.98
Pleas in law and main arguments adduced in support:                  Directive (in conjunction with Annex F, No 26) and the
                                                                     different ways in which gold is treated for tax purposes in
                                                                     certain Member States lead to distortions of competition.
Article 189 of the EC Treaty, under which a Directive                Consequently, the Commission submitted, as long ago as
shall be binding, as to the result to be achieved, upon each         28 October 1992, a proposal for a Directive relating to
Member State, carries by implication an obligation on the            special arrangements applicable to gold, which provides
Member States to observe the period for compliance laid              for the general exemption from tax of transactions in
down in the Directive. That period expired on                        respect of what is known as investment gold and for the
31 December 1995 without Ireland having enacted the                  repeal of the abovementioned transitional rules; but no
provisions necessary to comply with the Directive referred           Directive in those terms has to date been adopted by the
to in the conclusions of the Commission.                             Council. However, the issue in the present case is not
                                                                     whether the tax exemption in question has or has not
(1) OJ L 319, 12.12.1994, p. 20.                                     proved to be necessary in order to protect the German
                                                                     gold market but rather the fact that that tax exemption
                                                                     does not constitute a means of preventing the effects of
                                                                     existing distortions of competition on the national market
                                                                     for which provision is made by the sixth Directive.
Action brought on 22 December 1997 by the Commission                 Lastly, the Federal Republic of Germany wrongly relies on
of the European Communities against the Federal                      the declaration of the Council and the Commission on
                    Republic of Germany                              Article 1(1)(e) of Council Directive 72/77/EEC on the
                       (Case C-432/97)                               approximation of VAT rates. That declaration must be
                                                                     read in conjunction with the provision to which it relates,
                          (98/C 55/38)                               namely Article 12(3)(e) of the sixth Directive. The third
                                                                     and fourth sentences of that provision require the Member
                                                                     States from 1 January 1993 to take all necessary measures
An action against the Federal Republic of Germany was                to combat fraud in the field of the taxation of transactions
brought before the Court of Justice of the European                  in a respect of gold (including, in particular, a system
Communities on 22 December 1997 by the Commission                    giving the buyer the right to deduct tax). That provision
of the European Communities, represented by Enrico                   affords no basis for the conferral on the Member States of
Traversa, of its Legal Service, and Andreas Buschmann, a             any more extensive powers. According to the case-law of
national expert on secondment to its Legal Service, with             the Court of Justice, however, a declaration cannot be
an address for service in Luxembourg at the office of                invoked for the purposes of interpreting a provision of
Carlos Gómez de la Cruz, of its Legal Service, Wagner                Community law where the content of the declaration does
Centre C 254, Kirchberg.                                             not find expression in the provision in question and thus
                                                                     has no legal significance.
The applicant claims that the Court should:
                                                                     (1) OJ L 145, 13.6.1977, p. 1.
Ð declare that, by exempting from value added tax
    transactions in gold bars, gold coins ranking as legal
    tender and unprocessed gold and the negotiation of
    such transactions, the Federal Republic of Germany
    has failed to fulfil its obligations pursuant to Articles 2
    and 28a(1)(a) of the sixth Council Directive 77/388/             Appeal brought on 22 December 1997 by IPK München
    EEC of 17 May 1977 on the harmonisation of the                   GmbH against the judgment delivered on 15 October
    laws of the Member States relating to turnover taxes             1997 by the First Chamber of the Court of First Instance
    Ð common systems of value added tax: uniform basis               of the European Communities in Case T-331/94 between
    of assessment (1), as most recently amended,                     IPK München GmbH and the Commission of the
                                                                                        European Communities
Ð order the Federal Republic of Germany to pay the                                         (Case C-433/97 P)
    costs.
                                                                                              (98/C 55/39)
Pleas in law and main arguments adduced in support:
                                                                     An appeal against the judgment delivered on 15 October
The sixth Directive affords no basis for the exemption               1997 by the First Chamber of the Court of First Instance
provision introduced by the Federal Republic of Germany,             of the European Communities in Case T-331/94 between
with effect from 1 January 1993, as paragraph 4(8)(K) of             IPK München GmbH and the Commission of the
the Umsatzsteuergesetz (Law on turnover taxes).                      European Communities was brought before the Court of
                                                                     Justice of the European Communities on 22 December
                                                                     1997 by IPK München GmbH, represented by Hans-
The Commission is conscious of the fact that the                     Joachim Prieû, Rechtsanwalt, 13 place des Barricades,
transitional rules contained in Article 28(3)(b) of the sixth        B-1000 Brussels.