CELEX: C2003/213/16
Language: en
Date: 2003-09-06 00:00:00
Title: Case C-226/03 P: Appeal brought on 23 May 2003 (fax of 22 May) by José Martí Peix SA against the judgment delivered on 13 March 2003 (not yet published in the ECR) by the Third Chamber of the Court of First Instance of the European Communities in Case T-125/01 between José Martí Peix SA and the Commission of the European Communities

C 213/10                EN                         Official Journal of the European Union                                         6.9.2003
which was received at the Court Registry on 22 May 2003, for               European Communities in Case T-125/01 between José Martí
a preliminary ruling in the case of University of Huddersfield             Peix SA and the Commission of the European Communities
and Commissioners of Customs and Excise on the following                   was brought before the Court of Justice of the European
questions:                                                                 Communities on 23 May 2003 (fax of 22 May) by José Martí
                                                                           Peix SA, represented by R. García-Gallardo and D. Domínguez
                                                                           Pérez, lawyers.
Where:
1.     a university waives its right to exemptions from VAT in
       respect of any supplies of certain real property owned by           The applicant claims that the Court should:
       it and leases the property to a trust set up and controlled
       by the university
                                                                           1.    declare the appeal admissible;
2.     the trust waives its right to exemption from VAT in
       respect of any supplies of the real property in question
       and grants to the university an underlease of the property          2.    set aside the judgment of the Third Chamber of the Court
                                                                                 of First Instance of 13 March 2003 in Case T-125/01
                                                                                 José Martí Peix SA v Commission of the European
3.     the lease and underlease were entered into and carried
                                                                                 Communities;
       out by the University with the sole intention of obtaining
       a fiscal advantage and had no independent business
       purpose                                                             3.    order the Commission to pay the entirety of the costs
                                                                                 incurred in the proceedings before the Court of Justice as
4.     the lease and leaseback amounted to, and was intended                     well as those incurred in the proceedings before the Court
       by the University and the trust to be, a deferral scheme                  of First Instance.
       (that is, a scheme for the deferral of payment of VAT)
       with a built-in feature that allowed an absolute tax saving
       at a later date
       (a)   are the lease and the underlease taxable supplies for
             the purposes of the Sixth VAT Directive ( 1)?                 Pleas and main arguments
       (b) Do they qualify as economic activities within the
             meaning of the second sentence of Article 4(2) of
             the Sixth VAT Directive?                                      The Court of First Instance incorrectly interpreted the
                                                                           expression ‘continuous irregularity’ referred to in Article 3 of
                                                                           Council Regulation (EC, Euratom) No 2988/95 of 18 Decem-
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the              ber 1995 on the protection of the European Communities
     harmonization of the laws of the Member States relating to            financial interests (OJ 1995 L 312, p. 1). As a result of the
     turnover taxes — Common system of value added tax: uniform
                                                                           broad construction given by the Court of First Instance to that
     basis of assessment OJ L 145, 13.06.1977, p. 1-40.
                                                                           expression, the principle of prescription is rendered devoid of
                                                                           practical effect and the interpretation is incompatible with the
                                                                           substance of that principle, which is to penalise an authority’s
                                                                           failure to take any action in respect of an irregularity. The
                                                                           point of prescription is to safeguard the principle of legal
                                                                           certainty and to guarantee the principle of sound administrat-
                                                                           ive practice. The principle of Community solidarity must be
                                                                           interpreted correctly and cannot be used in order to render the
Appeal brought on 23 May 2003 (fax of 22 May) by José                      principle of prescription inapplicable.
Martí Peix SA against the judgment delivered on 13 March
2003 (not yet published in the ECR) by the Third
Chamber of the Court of First Instance of the European
Communities in Case T-125/01 between José Martí Peix
                                                                           The consequences of that incorrect interpretation are serious,
   SA and the Commission of the European Communities                       inasmuch as Regulation No 2988/95 is a regulation of
                                                                           general application where expenditure is financed from the
                         (Case C-226/03 P)                                 Community budget. The Court of First Instance’s interpretation
                                                                           of the Regulation must therefore be followed at national level
                                                                           by the various authorities involved, in spite of the fact that it
                          (2003/C 213/16)                                  entails restriction of the protection enjoyed by every citizen
                                                                           vis-à-vis public authorities.
An appeal against the judgment delivered on 13 March 2003
by the Third Chamber of the Court of First Instance of the