CELEX: C1996/354/11
Language: en
Date: 1996-11-23 00:00:00
Title: JUDGMENT OF THE COURT (Fourth Chamber) of 26 September 1996 in Case C-230/94 (reference for a preliminary ruling from the Bundesfinanzhof): Renate Enkler v. Finanzamt Homburg (Sixth VAT Directive - Definition of economic activity - Taxable amount)

No C 354/6             EN                  Official Journal of the European Communities                                            23 . 11 . 96
 ( EEC ) No 1384/77 of 27 June 1977 ( OJ No L 157, 1977,              relating to turnover taxes — common system of value added
 p. 16 ), and on the validity of Commission Regulation ( EEC )        tax : uniform basis of assessment ( OJ No L 145 , 1977, p. 1 )
 No 1121 /87 of 23 April 1987 amending Regulations ( EEC )            and of Article 3 ( b ) and the first paragraph of Article 5 of the
 No 612/77 and ( EEC ) No 1 1 36/79 as regards the release of         eighth Council Directive 79/ 1072/EEC of 6 December 1979
 the security for certain special import arrangements in the          on the harmonization of the laws of the Member States
 beef and veal sector ( OJ No L 109 , 1987, p. 12 ) — the Court       relating to turnover taxes — arrangements for the refund of
 ( Sixth Chamber ), composed of: C. N. Kakouris                       value added tax to taxable persons not established in the
 ( Rapporteur ), President of the Chamber, G. Hirsch and              territory of the country ( OJ No L 331 , 1979 , p. 11 ), the
 G. F. Mancini, Judges ; P. Leger, Advocate-General; H. von           Court ( Sixth Chamber ), composed of: C. N. Kakouris ,
 Holstein, Deputy Registrar, for the Registrar, has given a           President of the Chamber, G. Hirsch ( Rapporteur ) and
 judgment on 17 September 1996 , in which it rules :                  P. J. G. Kapteyn, Judges; G. Tesauro, Advocate-General ;
                                                                      H. A. Riihl , Principal Administrator, for the Registrar, has
 1 . Article 2 (d) of Council Directive 79/623/EEC of                 given a judgment on 26 September 1996 in which it
                                                                      rules :
      25 June 1979 on the harmonization of provisions laid
      down by law, regulation or administrative action
      relating to customs debt has direct effect and confers on       Article 3 (b) of the eighth Council Directive 79/1072/EEC,
      individuals rights which they may assert against a              of 6 December 1979, on the harmonization of the laws of
      Member State which has failed to transpose the directive        the Member States relating to turnover taxes —
      into national law, and which the national courts must           arrangements for the refund of value added tax to taxable
      safeguard.                                                      persons not established in the territory of the country, is to
                                                                      be interpreted as meaning that the fact that a lawyer
2 . Article 2 (d) of Directive 79/623/EEC is also applicable          benefits, pursuant to Article 28 (3) (b) of the sixth Council
      where Commission Regulation (EEC) No 612/77 of                  Directive 77/388/EEC, of 17 May 1977, on the
      24 March 1 977 laying down rules for the application of         harmonization of the laws of the Member States relating to
      the special import arrangements in respect of certain           turnover taxes — common system of value added tax:
      young male bovine animals for fattening, as amended by          uniform basis of assessment, and Annex F thereto, from an
      Commission Regulation (EEC) No 1384/77 of 27 June               exemption in the Member State in which he is established
      1977, is infringed.                                             does not entitle him to request the competent authorities of
                                                                      that Member State to issue the certificate mentioned therein
                                                                      and he is not, accordingly, entitled to a refund of the VAT
C ) OJ No C 331 , 26 . 11 . 1994 .
     OJ No C 316 , 12 . 11 . 1994 .
                                                                      charged on services supplied to him in a Member State in
                                                                      which he is not established and in which services supplied by
                                                                      lawyers are not exempted.
                                                                      (') OJ No C 178 , 30 . 6 . 1993 .
                JUDGMENT OF THE COURT
                        ( Sixth Chamber )
                     of 26 September 1996                                           JUDGMENT OF THE COURT
in Case C-302/93 ( reference for a preliminary ruling from                                    ( Fourth Chamber )
the Gerechtshof, The Hague ): Etienne Debouche v.                                          of 26 September 1996
         Inspecteur der Invoerrechten en Accijnzen (')
                                                                     in Case C-230/94 ( reference for a preliminary ruling from
(Value added tax — Interpretation ofArticle 1 7 (2) and (3)          the      Bundesfinanzhof):      Renate      Enkler     v.     Finanzamt
(a) ofDirective 77/388/EEC and ofArticle 3 (b) and the first                                      Homburg ( 1 )
paragraph ofArticle 5 ofDirective 79/1 072/EEC — Refund
of value added tax to taxable persons not established in the          (Sixth VAT Directive — Definition of economic activity —
                                                                                                Taxable amount)
                    territory of the country)
                                                                                                  96/C 354/ 11 )
                          ( 96/C 354/ 10 )
                                                                                    (Language of the case: German)
                 (Language of the case: Dutch)
                                                                      (Provisional translation; the definitive translation will be
(Provisional translation; the definitive translation will be                   published in the European Court Reports)
          published in the European Court Reports)
                                                                     In Case C-230/94 : reference to the Court under Article 177
In Case C-302/93 : reference to the Court under Article 177          of the EC Treaty from the Bundesfinanzhof [Federal Finance
of the EEC Treaty from the Gerechtshof [ Regional Court of           Court, Germany] for a preliminary ruling in the proceedings
Appeal], The Hague ( Netherlands ) for a preliminary ruling          pending before that court between Renate Enkler and
in the proceedings pending before that court between                 Finanzamt ( Tax Office ) Homburg on the interpretation of
Etienne Debouche and Inspecteur der Invoerrechten en                 Articles 4(1 ) and ( 2 ), 6 ( 2 ) ( a ) and 11 A ( 1 ) ( c ) of the sixth
Accijnzen on the interpretation of Articles 17 ( 2 ) and ( 3 ) ( a ) Council Directive ( 77/388/EEC ) of 17 May 1977 on the
of the sixth Council Directive 77/388/EEC of 17 May 1977             harmonization of the laws of the Member States relating to
on the harmonization of the laws of the Member States                turnover taxes — common system of value added tax:
 ---pagebreak--- 23 . 11 . 96           EN                   Official Journal of the European Communities                                    No C 354/7
uniform basis of assessment ( OJ No L 145 , 1977, p. 1 ), the          Commission of the European Communities ( Agents :
Court ( Fourth Chamber ), composed of: C. N. Kakouris,                 Jean-Paul Keppenne and Ben Smulders ) — application for
President of the Chamber, P. J. G. Kapteyn and                         annulment of Commission decision SG(94 ) D/8907 of
H. Ragnemalm ( Rapporteur ), Judges; G. Cosmas,                        27 June 1994 concerning aid to the company Kimberly
Advocate-General; H. A. Rühl , Principal Administrator, for            Clark Sopalin — the Court, composed of: G. C. Rodriguez
the Registrar, has given a judgment on 26 September 1996               Iglesias , President, C. N. Kakouris, D. A. O. Edward, J. -P.
in which it ruled :                                                    Puissochet and G. Hirsch ( Rapporteur ), ( Presidents of
                                                                       Chambers ), G. F. Mancini , P. J. G. Kapteyn, C. Gulmann,
I. The hiring out of tangible property constitutes                     J. L. Murray, L. Sevón and M. Wathelet, Judges; F. G.
     exploitation ofsuch property which must be classified as          Jacobs, Advocate-General ; H. von Holstein, Deputy
     an 'economic activity ' within the meaning of Article 4           Registrar, for the Registrar, gave a judgment on
     (2) of the sixth Council Directive (77/388/EEC) of                26 September 1996 , in which it:
     17 May 1977 on the harmonization of the laws of the
     Member States relating to turnover taxes — common                 1 . dismisses the application;
     system of value added tax: uniform basis of assessment,
     if it is done for the purpose of obtaining income
     therefrom on a continuing basis.                                  2 . orders the French Republic to pay the costs.
2 . In order to determine whether the hiring out of tangible           (') OJ No C 304 , 29 . 10 . 1994 .
     property such as a motor caravan is carried on with a
     view to obtaining income on a continuing basis, within
     the meaning of the second sentence ofArticle 4 (2) of the
     sixth Directive, it is for the national court to evaluate all
     the circumstances of the particular case.
3 . Article 11 (A) (1 ) (c) of the sixth Directive is to be
     interpreted as meaning that the taxable amount for                               JUDGMENT OF THE COURT
     turnover tax on transactions treated as supplies of                                       ( Sixth Chamber)
     services under Article 6 (2) (a) of the Directive must
     include expenses which are incurred during a period in                                 of 26 September 1996
     which the goods are at the taxable person 's disposal in a        in Case C-287/94 ( reference for a preliminary ruling from
     way that he can actually use them at any time for                 the 0stre Landsret ): A/S Richard Frederiksen & Co . v.
     non-business purposes and which relate to the goods                                      Skatteministeriet ( 1 )
     themselves or which the taxable person is entitled to             (Raising of capital — Capital duty — interest-free loan
     deduct for VAT purposes. The portion of the expenses              granted by a parent company to its subsidiary — Company
     to be included must be proportionate to the ratio                                              income tax)
     between the total duration ofactual use of the goods and
                                                                                                  ( 96/C 354/ 13 )
     the duration of actual use for non-business purposes.
(') OJ No C 275 , 1 . 10 . 1994 .                                                       (Language of the case: Danish)
                                                                       (Provisional translation; the definitive translation will be
                                                                                 published in the European Court Reports)
               JUDGMENT OF THE COURT                                   In Case C-287/94 : reference to the Court under Article 177
                                                                       of the EC Treaty from the 0stre Landsret ( Eastern Regional
                    of 26 September 1996
                                                                       Court ) ( Denmark ) for a preliminary ruling in the
in Case C-241/94 : French Republic v. Commission of the                proceedings pending before that court between A/S Richard
                  European Communities ( 1 )                           Frederiksen       &   Co .     and   Skatteministeriet   on   the
(Concept ofState aid within the meaning ofArticle 92 (1) of            interpretation of Article 4 ( 2 ) ( b ) and Article 10 of Council
   the Treaty — State intervention of a social character)              Directive 69/335/EEC of 17 July 1969 concerning indirect
                           ( 96/C 354/ 12 )                            taxes on the raising of capital ( Official Journal, English
                                                                       Special Edition, 1969 ( II ), p. 412 ), the Court ( Sixth
                                                                       Chamber ), composed of: C. N. Kakouris , President of the
                (Language of the case: French)                         Chamber, G. F. Mancini and H. Ragnemalm ( Rapporteur ),
                                                                       Judges; A. La Pergola, Advocate-General ; H. A. Rühl ,
(Provisional translation; the definitive translation will be           Principal Administrator, for the Registrar, has given a
          published in the European Court Reports)                     judgment on 26 September 1996 in which it rules :
In Case C-241 /94 : French Republic ( Agents : Edwige                   1 . Article 4 (2) (b) of Council Directive 69/335/EEC of
Belliard, Catherine de Salins and Jean-Marc Belorgey ) v.                   1 7 July 1 969 concerning indirect taxes on the raising of