CELEX: C2003/184/12
Language: en
Date: 2003-08-02 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 19 June 2003 in Case C-149/01 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Commissioners of Customs & Excise v First Choice Holidays plc (Sixth VAT Directive — Article 26(2) — Special scheme for the taxation of travel agents and tour operators — Taxable amount — Margin — Total amount to be paid by the traveller)

2.8.2003               EN                             Official Journal of the European Union                                                 C 184/7
                  JUDGMENT OF THE COURT                                                         JUDGMENT OF THE COURT
                          (Sixth Chamber)                                                                (Fifth Chamber)
                                                                                                         of 12 June 2003
                          of 19 June 2003
                                                                              in Case C-234/01 (Reference for a preliminary ruling from
in Case C-149/01 (Reference for a preliminary ruling from                     the Finanzgericht Berlin): Arnoud Gerritse v Finanzamt
the Court of Appeal (England & Wales) (Civil Division):                                                 Neukölln-Nord (1)
Commissioners of Customs & Excise v First Choice Holi-
                              days plc (1)
                                                                              (Income tax — Non-residents — Article 59 of the EC Treaty
                                                                              (now, after amendment, Article 49 EC) and Article 60 of the
                                                                              EC Treaty (now Article 50 EC) — Non-taxable threshold
(Sixth VAT Directive — Article 26(2) — Special scheme for                                amount — Deduction of business expenses)
the taxation of travel agents and tour operators — Taxable
amount — Margin — Total amount to be paid by the
                               traveller)                                                                (2003/C 184/13)
                           (2003/C 184/12)                                                        (Language of the case: German)
                                                                              (Provisional translation; the definitive translation will be published in
                    (Language of the case: English)
                                                                                                    the European Court Reports)
                                                                              In Case C-234/01: Reference to the Court under Article 234
                                                                              EC by the Finanzgericht Berlin (Germany) for a preliminary
                                                                              ruling in the proceedings pending before that court between
In Case C-149/01: Reference to the Court under Article 234                    Arnoud Gerritse and Finanzamt Neukölln-Nord, on the inter-
EC by the Court of Appeal of England & Wales, Civil Division                  pretation of Article 52 of the EC Treaty (now, after amend-
(United Kingdom) for a preliminary ruling in the proceedings                  ment, Article 43 EC), the Court (Fifth Chamber), composed of:
pending before that court between Commissioners of Customs                    M. Wathelet (Rapporteur), President of the Chamber, C.W.
& Excise and First Choice Holidays plc, on the interpretation of              A. Timmermans, D.A.O. Edward, P. Jann and A. Rosas, Judges;
Article 26(2) of Sixth Council Directive 77/388/EEC of 17 May                 P. Léger, Advocate General; M.-F. Contet, Principal Adminis-
1977 on the harmonisation of the laws of the Member States                    trator, for the Registrar, has given a judgment on 12 June
relating to turnover taxes — Common system of value added                     2003, in which it has ruled:
tax: uniform basis of assessment (OJ 1977 L 145, p. 1), the
Court (Sixth Chamber), composed of: R. Schintgen, President
of the Second Chamber, acting as President of the Sixth                       1.    Article 59 of the EC Treaty (now, after amendment, Article 49
Chamber, C. Gulmann (Rapporteur), V. Skouris, F. Macken                             EC) and Article 60 of the EC Treaty (now Article 50 EC)
and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate                              preclude a national provision such as that at issue in the main
General; L. Hewlett, Administrator, for the Registrar, has given                    proceedings which, as a general rule, takes into account gross
a judgment on 19 June 2003, in which it has ruled:                                  income when taxing non-residents, without deducting business
                                                                                    expenses, whereas residents are taxed on their net income, after
                                                                                    deduction of those expenses.
Article 26(2) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States relating           2.    However, those articles of the Treaty do not preclude that same
to turnover taxes — Common system of value added tax: uniform                       provision in so far as, as a general rule, it subjects the income
basis of assessment must be interpreted as meaning that the ‘total                  of non-residents to a definitive tax at the uniform rate of
amount to be paid by the traveller’ within the meaning of that                      25 %, deducted at source, whilst the income of residents is
provision includes the additional amount that a travel agent, acting                taxed according to a progressive table including a tax-free
as intermediary on behalf of a tour operator, must, in circumstances                allowance, provided that the rate of 25 % is not higher than
such as those described in the order for reference, pay to the tour                 that which would actually be applied to the person concerned,
operator on top of the price paid by the traveller and which corresponds            in accordance with the progressive table, in respect of net
in amount to the discount given by the travel agent to the traveller on             income increased by an amount corresponding to the tax-free
the price of the holiday stated in the tour operator's brochure.                    allowance.
(1) OJ C 173 of 16.6.2001.                                                    (1) OJ C 245 of 1.9.2001.