Finanzamt Eisleben v Feuerbestattungsverein Halle eV.
Date: 2006-06-08
24. In that regard, first, it must be recalled that the second subparagraph of Article 4(5) of the Sixth Directive is intended to ensure compliance with the principle of neutrality of the tax, which precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (Case C-498/03 Kingscrest Associates and Montecello  [2005] ECR I‑4427, paragraph 41) and that that provision envisages the situation in which bodies governed by public law engage, as entities subject to public law, namely under the special regime applicable to them, in activities or transactions which may also be engaged in, in competition with them, by private individuals under a regime governed by private law or on the basis of administrative concessions (see, to that effect, Joined Cases 231/87 and 129/88 Comune di Carpaneto Piacentino and Others  [1989] ECR 3233, paragraph 22).
25. That provision contains a derogation from the rule of treatment of bodies governed by public law as non-taxable persons in respect of the activities or transactions engaged in by them as public authorities where such treatment would lead to significant distortions of competition ( Comune di Carpaneto Piacentino and Others , paragraph 22).
26. Consequently, if the exemption of the economic activity in question from VAT were to give rise to distortions of competition within the meaning of the second subparagraph of Article 4(5) of the Sixth Directive, the operation of a crematorium by Lutherstadt Eisleben would be taxable by virtue of that same provision (see, to that effect, Case C-276/98 Commission  v Portugal  [2001] ECR I-1699, paragraph 28).
28. Secondly, it is settled case-law that unconditional and sufficiently precise provisions of a directive may, in the absence of implementing measures adopted within the prescribed period, be relied on by private individuals against any national provision which is incompatible with the directive or in so far as they define rights which individuals are able to assert against the State (see, in particular, Case 8/81 Becker  [1982] ECR 53, paragraph 25, and Joined Cases C‑465/00, C-138/01 and C‑139/01 Österreichischer Rundfunk and Others  [2003] ECR I-4989, paragraph 98).
29. Therefore, individuals are entitled to rely before national courts, against the Member State concerned, on the provisions of a directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been implemented or has been implemented incorrectly, but also where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it (Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 27).
30. The Court has already held that since the bodies and activities to which the rule of treatment as non-taxable persons applies is clearly defined by Article 4(5) of the Sixth Directive, that provision fulfils the criteria for direct effect ( Comune di Carpaneto Piacentino and Others , paragraphs 31 and 33).