CELEX: C2000/233/20
Language: en
Date: 2000-08-12 00:00:00
Title: Judgment of the Court (Second Chamber) of 8 June 2000 in Case C-98/98 (reference for a preliminary ruling from the High Court of Justice (England &Wales), Queen's Bench Division (Divisional Court)): Commissioners of Customs & Excise v Midland Bank plc (Value added tax — First and Sixth VAT Directives — Deduction of input tax — Taxable person carrying out both taxable and exempt transactions — Attribution of input services to output transactions — Need for a direct and immediate link)

C 233/10                 EN                      Official Journal of the European Communities                                      12.8.2000
The first sentence of Article 3a(3) of Council Regulation (EEC)             Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty
No 857/84 of 31 March 1984 adopting general rules for the                   have been replaced by Articles 136 EC to 143 EC) applies to
application of the levy referred to in Article 5c of Regulation (EEC)       supplementary retirement pension schemes, such as that at issue in
No 804/68 in the milk and milk products sector, as amended by               the main proceedings, and precludes those schemes from discrimina-
Council Regulation (EEC) No 1639/91 of 13 June 1991, must be                ting, as from 17 May 1990, between men and women in respect of
interpreted in the light of the principles governing the system for the     the age at which their spouse is entitled to a survivor’s pension
grant of a special reference quantity as meaning that a producer            following the death of those employees.
holding an original reference quantity who provisionally receives a
special reference quantity in addition may not be definitively allocated
that special reference quantity, regardless of the other conditions
                                                                            (1) OJ C 100 of 10.4.1999.
required, when he himself has not used it in order to increase current
milk production on his holding. That is the case where such a
producer leases out his original reference quantity and produces on
his holding only his provisional special reference quantity of milk.
(1) OJ C 278 of 5.9.1998.
                                                                                             JUDGMENT OF THE COURT
                                                                                                    (Second Chamber)
                  JUDGMENT OF THE COURT
                                                                                                      of 8 June 2000
                           (Fifth Chamber)
                                                                            in Case C-98/98 (reference for a preliminary ruling from
                           of 25 May 2000                                   the High Court of Justice (England &Wales), Queen’s
                                                                            Bench Division (Divisional Court)): Commissioners of
in Case C-50/99 (reference for a preliminary ruling from                               Customs & Excise v Midland Bank plc (1)
the Tribunal de Grande Instance, Paris): Jean-Marie
Podesta v Caisse de Retraite par répartition des Ingénieurs                 (Value added tax — First and Sixth VAT Directives —
          Cadres & Assimilés (CRICA) and Others (1)                         Deduction of input tax — Taxable person carrying out both
                                                                            taxable and exempt transactions — Attribution of input
(Social policy — Equal pay for men and women — Private,                     services to output transactions — Need for a direct and
inter-occupational, supplementary retirement pension sche-                                            immediate link)
me based on defined contributions and run on a ‘pay-as-you-
go’ basis— Survivors’ pensions for which the age conditions
                  for grant vary according to sex)                                                   (2000/C 233/20)
                           (2000/C 233/19)
                                                                                               (Language of the case: English)
                     (Language of the case: French)                         In Case C-98/98: reference to the Court under Article 177 of
                                                                            the EC Treaty (now Article 234 EC) from the High Court of
                                                                            Justice (England & Wales), Queen’s Bench Division (Divisional
(Provisional translation; the definitive translation will be published      Court), United Kingdom, for a preliminary ruling in the
                    in the European Court Reports)                          proceedings pending before that court between Commissio-
                                                                            ners of Customs & Excise plc and Midland Bank plc — on the
In Case C-50/99: reference to the Court under Article 177 of                interpretation of Article 2 of the First Council Directive
the EC Treaty (now Article 234 EC) from the Tribunal                        67/227/EEC of 11 April 1967 on the harmonisation of
de Grande Instance, Paris, for a preliminary ruling in the                  legislation of Member States concerning turnover taxes (OJ,
proceedings pending before that court between Jean-Marie                    English Special Edition 1967, p. 14) and Article 17(2), (3) and
Podesta and Caisse de Retraite par répartition des Ingénieurs               (5) of the Sixth Council Directive 77/388/EEC of 17 May 1977
Cadres & Assimilés (CRICA) and Others — on the interpreta-                  on the harmonisation of the laws of the Member States relating
tion of Article 119 of the EC Treaty (Articles 117 to 120 of                to turnover taxes — Common system of value added tax:
the EC Treaty have been replaced by Articles 136 EC to 143 EC)              uniform basis of assessment (OJ 1977 L 145, p. 1)— the Court
— the Court (Fifth Chamber), composed of: D.A.O. Edward,                    (Second Chamber), composed of: R. Schintgen, President of
President of the Chamber, L. Sevón, P.J.G. Kapteyn (Rappor-                the Chamber, G. Hirsch (Rapporteur) and H. Ragnemalm,
teur), P. Jann and M. Wathelet, Judges; J. Mischo, Advocate                 Judges; A. Saggio, Advocate General; L. Hewlett, Principal
General; L. Hewlett, Administrator, for the Registrar, has given            Administrator, for the Registrar, has given a judgment on
a judgment on 25 May 2000, in which it has ruled:                           8 June 2000, in which it has ruled:
 ---pagebreak--- 12.8.2000                EN                      Official Journal of the European Communities                                      C 233/11
1.    Article 2 of the First Council Directive 67/227/EEC of                anwalt, Cologne, with an address for service in Luxembourg at
      11 April 1967 on the harmonisation of legislation of Member           the Chambers of Loesch and Wolter, 11 Rue Goethe — Appeal
      States concerning turnover taxes and Article 17(2), (3) and (5)       against the judgment of the Court of First Instance of the
      of the Sixth Council Directive 77/388/EEC of 17 May 1977              European Communities (Third Chamber, Extended Composi-
      on the harmonisation of the laws of the Member States relating        tion) of 16 September 1998 in Cases T-133/95 and T-204/95
      to turnover taxes — Common system of value added tax:                 IECC v Commission [1998] ECR II-3645, seeking to have that
      uniform basis of assessment must be interpreted as meaning            judgment set aside, the other parties to the proceedings being:
      that, in principle, the existence of a direct and immediate link      International Express Carriers Conference (IECC), established
      between a particular input transaction and a particular output        in Geneva, Switzerland, represented by E. Morgan de Rivery,
      transaction or transactions giving rise to entitlement to deduct      of the Paris Bar, and J. Derenne and M. Cunningham, of the
      is necessary before the taxable person is entitled to deduct input    Brussels Bar, with an address for service in Luxembourg at the
      value added tax and in order to determine the extent of such          Chambers of A. Schmitt, 7 Val Sainte-Croix, Commission of
      entitlement.                                                          the European Communities (Agent: K. Wiedner, assisted by N.
                                                                            Forwood), La Poste, represented by H. Lehman, of the Paris
2.    It is for the national court to apply the ‘direct and immediate       Bar, with an address for service in Luxembourg at the
      link’ test to the facts of each case before it. A taxable person      Chambers of A. May, 398 Route d’Esch, United Kingdom of
      who makes transactions in respect of which value added tax is         Great Britain and Northern Ireland, and The Post Office —
      deductible and transactions in respect of which it is not may         The Court (Fourth Chamber), composed of: D.A.O. Edward,
      deduct the value added tax in respect of the goods or services        President of the Chamber, P.J.G. Kapteyn (Rapporteur) and A.
      acquired by him, provided that such goods or services have a          La Pergola, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
      direct and immediate link with the output transactions in             R. Grass, Registrar, has made an order on 11 May 2000, the
      respect of which value added tax is deductible, without it being      operative part of which is as follows:
      necessary to take into account Article 17(2), (3) or (5) of the
      Sixth Directive 77/388. However, such a taxable person                1.    The appeal is dismissed.
      cannot deduct in its entirety the value added tax charged on
      input services where they have been utilised not for the purpose      2.    Deutsche Post AG shall pay the costs.
      of carrying out a deductible transaction but in the context of
      activities which are no more than the consequence of making           3.    International Express Carriers Conference and La Poste shall
      such a transaction, unless that person can show by means of                 bear their own costs.
      objective evidence that the expenditure involved in the acquisition
      of such services is part of the various cost components of the
      output transaction.                                                   (1) OJ C 48 of 20.2.1999.
(1) OJ C 166 of 30.5.1998.
                                                                            Appeal brought on 14 April 2000 by the Commission of
                                                                            the European Communities against the judgment delive-
                                                                            red on 10 February 2000 by the Third Chamber of the
                      ORDER OF THE COURT                                    Court of First Instance of the European Communities in
                                                                            Joined Cases T-32/98 and T-41/98 between, on the one
                          (Fourth Chamber)                                  hand, the Government of the Netherlands Antilles and,
                                                                            on the other hand, the Commission of the European
                                                                                Communities, supported by the Kingdom of Spain
                           of 11 May 2000
                                                                                                    (Case C-142/00 P)
in Case C-428/9 P: Deutsche Post AG v International
Express Carriers Conference (IECC), Commission of the
European Communities, La Poste, United Kingdom of                                                    (2000/C 233/22)
Great Britain and Northern Ireland and The Post Office (1)
                                                                            An appeal against the judgment delivered on 10 February
(Appeal — Competition — Abuse of a dominant position —                      2000 by the Third Chamber of the Court of First Instance of
                      Postal services — Remail)                             the European Communities in Joined Cases T-32/98 and
                                                                            T-41/98 between, on the one hand, the Government of the
                                                                            Netherlands Antilles and, on the other hand, the Commission
                           (2000/C 233/21)                                  of the European Communities, supported by the Kingdom of
                                                                            Spain, was brought before the Court of Justice of the European
                                                                            Communities on 14 April 2000 by the Commission of the
                     (Language of the case: English)                        European Communities, represented by T. van Rijn, Legal
                                                                            Adviser, of the Commission’s Legal Service, with an address
In Case C-428/98 P: Deutsche Post AG, having its registered                 for service in Luxembourg at the office of C. Gómez de la
office in Bonn, Germany, represented by D. Schroeder, Rechts-               Cruz, of its Legal Service.