Ursula Becker v Finanzamt Münster-Innenstadt.
Date: 1982-01-19
17 ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY , ' ' A DIRECTIVE SHALL BE BINDING , AS TO THE RESULT TO BE ACHIEVED , UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED , BUT SHALL LEAVE TO THE NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS . ' '
18 IT IS CLEAR FROM THAT PROVISION THAT STATES TO WHICH A DIRECTIVE IS ADDRESSED ARE UNDER AN OBLIGATION TO ACHIEVE A RESULT , WHICH MUST BE FULFILLED BEFORE THE EXPIRY OF THE PERIOD LAID DOWN BY THE DIRECTIVE ITSELF .
19 IT FOLLOWS THAT WHEREVER A DIRECTIVE IS CORRECTLY IMPLEMENTED , ITS EFFECTS EXTEND TO INDIVIDUALS THROUGH THE MEDIUM OF THE IMPLEMENTING MEASURES ADOPTED BY THE MEMBER STATE CONCERNED ( JUDGMENT OF 6 MAY 1980 IN CASE 102/79 COMMISSION V BELGIUM ( 1980 ) ECR 1473 ).
20 HOWEVER , SPECIAL PROBLEMS ARISE WHERE A MEMBER STATE HAS FAILED TO IMPLEMENT A DIRECTIVE CORRECTLY AND , MORE PARTICULARLY , WHERE THE PROVISIONS OF THE DIRECTIVE HAVE NOT BEEN IMPLEMENTED BY THE END OF THE PERIOD PRESCRIBED FOR THAT PURPOSE .
21 IT FOLLOWS FROM WELL-ESTABLISHED CASE-LAW OF THE COURT AND , MOST RECENTLY , FROM THE JUDGMENT OF 5 APRIL 1979 IN CASE 148/78 PUBBLICO MINISTERO V RATTI ( 1979 ) ECR 1629 , THAT WHILST UNDER ARTICLE 189 REGULATIONS ARE DIRECTLY APPLICABLE AND , CONSEQUENTLY , BY THEIR NATURE CAPABLE OF PRODUCING DIRECT EFFECTS , THAT DOES NOT MEAN THAT OTHER CATEGORIES OF MEASURES COVERED BY THAT ARTICLE CAN NEVER PRODUCE SIMILAR EFFECTS .
22 IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT WHICH ARTICLE 189 ASCRIBES TO DIRECTIVES TO EXCLUDE IN PRINCIPLE THE POSSIBILITY OF THE OBLIGATIONS IMPOSED BY THEM BEING RELIED ON BY PERSONS CONCERNED .
23 PARTICULARLY IN CASES IN WHICH THE COMMUNITY AUTHORITIES HAVE , BY MEANS OF A DIRECTIVE , PLACED MEMBER STATES UNDER A DUTY TO ADOPT A CERTAIN COURSE OF     ACTION , THE EFFECTIVENESS OF SUCH A MEASURE WOULD BE DIMINISHED IF PERSONS WERE PREVENTED FROM RELYING UPON IT IN PROCEEDINGS BEFORE A COURT AND NATIONAL COURTS WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW .
24 CONSEQUENTLY , A MEMBER STATE WHICH HAS NOT ADOPTED THE IMPLEMENTING MEASURES REQUIRED BY THE DIRECTIVE WITHIN THE PRESCRIBED PERIOD MAY NOT PLEAD , AS AGAINST INDIVIDUALS , ITS OWN FAILURE TO PERFORM THE OBLIGATIONS WHICH THE DIRECTIVE ENTAILS .
25 THUS , WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY , IN THE ABSENCE OF IMPLEMENTING MEASURES ADOPTED WITHIN THE PRESCRIBED PERIOD , BE RELIED UPON AS AGAINST ANY NATIONAL PROVISION WHICH IS INCOMPATIBLE WITH THE DIRECTIVE OR IN SO FAR AS THE PROVISIONS DEFINE RIGHTS WHICH INDIVIDUALS ARE ABLE TO ASSERT AGAINST THE STATE .
27 INASMUCH AS IT SPECIFIES THE EXEMPT SERVICE AND THE PERSON ENTITLED TO THE EXEMPTION , THE PROVISION , TAKEN BY ITSELF , IS SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN INDIVIDUAL AND APPLIED BY A COURT . HOWEVER , IT REMAINS TO BE CONSIDERED WHETHER THE RIGHT TO EXEMPTION WHICH IT CONFERS MAY BE CONSIDERED TO BE UNCONDITIONAL , HAVING REGARD TO THE GENERAL SCHEME OF THE DIRECTIVE , TO THE CONTEXT IN WHICH ARTICLE 13 IS PLACED AND ALSO TO THE PARTICULAR CHARACTERISTICS OF THE SYSTEM OF TAXATION WITHIN WHICH THE EXEMPTION IS TO APPLY .
29 WHILST THE SIXTH DIRECTIVE UNDOUBTEDLY CONFERS UPON THE MEMBER STATES VARYING DEGRESS OF DISCRETION AS REGARDS IMPLEMENTING CERTAIN OF ITS PROVISIONS , INDIVIDUALS MAY NOT FOR THAT REASON BE DENIED THE RIGHT TO RELY ON ANY PROVISIONS WHICH OWING TO THEIR PARTICULAR SUBJECT-MATTER ARE CAPABLE OF BEING SEVERED FROM THE GENERAL BODY OF PROVISIONS AND APPLIED SEPARATELY . THIS MINIMUM GUARANTEE FOR PERSONS ADVERSELY AFFECTED BY THE FAILURE TO IMPLEMENT THE DIRECTIVE IS A CONSEQUENCE OF THE BINDING NATURE OF THE OBLIGATION IMPOSED ON THE MEMBER STATES BY THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY . THAT OBLIGATION WOULD BE RENDERED TOTALLY INEFFECTUAL IF THE MEMBER STATES WERE PERMITTED TO ANNUL , AS THE RESULT OF THEIR INACTIVITY , EVEN THOSE EFFECTS WHICH CERTAIN PROVISIONS OF A DIRECTIVE ARE CAPABLE OF PRODUCING BY VIRTUE OF THEIR SUBJECT-MATTER .
30 CONSEQUENTLY , THE GENERAL NATURE OF THE DIRECTIVE IN QUESTION OR THE DISCRETION WHICH , IN OTHER AREAS , IT LEAVES TO THE MEMBER STATES MAY NOT BE RELIED UPON IN ORDER TO DENY ANY EFFECT TO THOSE PROVISIONS WHICH IN VIEW OF THEIR SUBJECT-MATTER MAY BE RELIED UPON TO GOOD PURPOSE BEFORE A COURT EVEN THOUGH THE DIRECTIVE AS A WHOLE HAS NOT BEEN IMPLEMENTED .
32 IT SHOULD FIRST BE OBSERVED IN THAT REGARD THAT THE ' ' CONDITIONS ' '  REFERRED TO DO NOT IN ANY WAY AFFECT THE DEFINITION OF THE SUBJECT-MATTER OR THE EXEMPTION CONFERRED .
33 THE ' ' CONDITIONS ' '  REFERRED TO ARE INTENDED TO ENSURE THE CORRECT AND STRAIGHTFORWARD APPLICATION OF THE EXEMPTIONS . A MEMBER STATE MAY NOT RELY , AS AGAINST A TAXPAYER WHO IS ABLE TO SHOW THAT HIS TAX POSITION ACTUALLY FALLS WITHIN ONE OF THE CATEGORIES OF EXEMPTION LAID DOWN IN THE DIRECTIVE , UPON ITS FAILURE TO ADOPT THE VERY PROVISIONS WHICH ARE INTENDED TO FACILITATE THE APPLICATION OF THAT EXEMPTION .
34 MOREOVER , THE ' ' CONDITIONS ' '  REFER TO MEASURES INTENDED TO PREVENT ANY POSSIBLE EVASION , AVOIDANCE OR ABUSE . A MEMBER STATE WHICH HAS FAILED TO TAKE THE PRECAUTIONS NECESSARY FOR THAT PURPOSE MAY NOT PLEAD ITS OWN OMISSION IN ORDER TO REFUSE TO GRANT TO A TAXPAYER AN EXEMPTION WHICH HE MAY LEGITIMATELY CLAIM UNDER THE DIRECTIVE , PARTICULARLY SINCE IN THE ABSENCE OF SPECIFIC PROVISIONS ON THE MATTER THERE IS NOTHING TO PREVENT THE STATE FROM HAVING RECOURSE TO ANY RELEVANT PROVISIONS OF ITS GENERAL TAX LEGISLATION WHICH ARE DESIGNED TO COMBAT EVASION .
35 THE ARGUMENT BASED ON THE INTRODUCTORY SENTENCE OF ARTICLE 13 B MUST THEREFORE BE REJECTED .
37 THE GERMAN GOVERNMENT EMPHASIZES THAT THE OPTION PROVIDED FOR BY THAT PROVISION IS ' ' RESERVED TO THE MEMBER STATES ' '  AND THAT THE FEDERAL REPUBLIC OF GERMANY EXERCISED THAT POWER ONLY IN ARTICLE 9 OF THE IMPLEMENTING LAW . IT IS NOT PERMISSIBLE TO PRE-EMPT THAT LEGAL OPTION . THE GERMAN GOVERNMENT CLAIMS THAT IN VIEW OF THAT POWER RESERVED TO THE MEMBER STATES AND OF THE POSSIBILITY WHICH IT ENTAILS OF RESTRICTING THE SCOPE OF THE RIGHT OF OPTION AND     OF FIXING THE DETAILS OF ITS USE , THE PROVISION RELIED UPON BY THE PLAINTIFF IN THE MAIN ACTION MAY NOT BE CONSIDERED AS CONSTITUTING AN UNCONDITIONAL RULE .
38 THAT LINE OF ARGUMENT IS BASED ON AN INCORRECT UNDERSTANDING OF THE MEANING OF ARTICLE 13 C . BY VIRTUE OF THE POWER CONFERRED UPON THEM BY THAT PROVISION THE MEMBER STATE MAY ALLOW PERSONS ENTITLED TO EXEMPTIONS PROVIDED FOR BY THE DIRECTIVE TO WAIVE THEIR EXEMPTIONS IN ALL CASES OR WITHIN CERTAIN LIMITS OR SUBJECT TO CERTAIN DETAILED RULES . HOWEVER , IT SHOULD BE EMPHASIZED THAT , UNDER THE ABOVE-MENTIONED PROVISION , WHERE A MEMBER STATE MAKES USE OF THAT POWER , THE EXERCISE OF THE OPTION CONFERRED SUBJECT TO THOSE CONDITIONS IS A MATTER FOR THE TAXPAYER ALONE AND NOT FOR THE STATE .
39 IT FOLLOWS THAT ARTICLE 13 C DOES NOT IN ANY WAY CONFER UPON THE MEMBER STATES THE RIGHT TO PLACE CONDITIONS ON OR TO RESTRICT IN ANY MANNER WHATSOEVER THE EXEMPTIONS PROVIDED FOR BY PART B . IT MERELY RESERVES THE RIGHT TO THE MEMBER STATES TO ALLOW , TO A GREATER OR LESSER DEGREE , PERSONS ENTITLED TO THOSE EXEMPTIONS TO OPT FOR TAXATION THEMSELVES , IF THEY CONSIDER THAT IT IS IN THEIR INTEREST TO DO SO .
44 IN THAT REGARD IT SHOULD BE POINTED OUT THAT THE SCHEME OF THE DIRECTIVE IS SUCH THAT ON THE ONE HAND BY AVAILING THEMSELVES OF AN EXEMPTION PERSONS ENTITLED THERETO NECESSARILY WAIVE THE RIGHT TO CLAIM A DEDUCTION IN RESPECT OF INPUT AND ON THE OTHER HAND , HAVING BEEN EXEMPTED FROM THE TAX , THEY ARE UNABLE TO PASS ON ANY CHARGE WHATSOEVER TO THE PERSON FOLLOWING THEM IN THE CHAIN OF SUPPLY , WITH THE RESULT THAT THE RIGHTS OF THIRD PARTIES IN PRINCIPLE CANNOT BE AFFECTED .
49 CONSEQUENTLY , THE REPLY TO BE GIVEN TO THE QUESTION PUT TO THE COURT IS THAT AS FROM 1 JANUARY 1979 IT WAS POSSIBLE FOR THE PROVISION CONCERNING THE EXEMPTION FROM TURNOVER TAX OF TRANSACTIONS CONSISTING OF THE NEGOTIATION OF CREDIT CONTAINED IN ARTICLE 13 B ( D ) 1 OF THE SIXTH COUNCIL DIRECTIVE OF 17 MAY 1977 ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES - COMMON SYSTEM OF VALUE-ADDED TAX : UNIFORM BASIS OF ASSESSMENT TO BE RELIED UPON , IN THE ABSENCE OF THE IMPLEMENTATION OF THAT DIRECTIVE , BY A CREDIT NEGOTIATOR WHERE HE HAD REFRAINED FROM PASSING THAT TAX ON TO PERSONS FOLLOWING HIM IN THE CHAIN OF SUPPLY , AND THE STATE COULD NOT CLAIM , AS AGAINST HIM , THAT IT HAD FAILED TO IMPLEMENT THE DIRECTIVE .