Idéal tourisme SA v Belgian State.
Date: 2000-07-13
20 It must be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Bosman, paragraph 61, and Case C-437/97 Evangelischer Krankenhausverein Wien and Others v Abgabenberufungskommission Wien and Others [2000] ECR I-1157, paragraph 52).
26 On the other hand, its second question is manifestly irrelevant to the result of the case in the main proceedings.
27 By that second question the national court essentially asks whether the air transport operators' exemption from VAT constitutes State aid which is incompatible with Community law.
28 However, the main proceedings are not concerned with that point, but with whether certain transactions carried out by Idéal Tourisme are subject to VAT or not.
29 The second question should therefore not be answered (see, to that effect, in a similar case, Evangelischer Krankenhausverein Wien, paragraph 53).
The first question
32 It must be noted at the outset that Article 28(3)(b) of the Sixth Directive, read in conjunction with Annex F thereto, clearly and unambiguously authorises Member States to continue to apply, under the same conditions, certain exemptions which were provided for in their legislation before the entry into force of the Sixth Directive. While that article consequently does not permit Member States to introduce new exemptions or extend the scope of existing exemptions following the entry into force of that directive, it does not prevent a reduction of existing exemptions, especially as their abolition constitutes the objective pursued by Article 28(4) of the directive (see Case C-136/97 Norbury Developments v Customs and Excise [1999] ECR I-2941, paragraph 19).
33 It follows that a Member State which, like the Kingdom of Belgium, imposes VAT on the international transport operations of coach passenger transport operators and continues to exempt international air passenger transport would not be authorised to extend to the former the exemption allowed to the latter, even if the difference in treatment infringed the Community principle of equal treatment. On the other hand, it could tax air transport as well, in order to remove such a difference in treatment.
35 The principle of equal treatment is indeed one of the fundamental principles of Community law. That principle requires that similar situations are not to be treated differently unless differentiation is objectively justified (Joined Cases 201/85 and 202/85 Klensch and Others v Secrétaire d'État à l'Agriculture et à la Viticulture [1986] ECR 3477, paragraph 9).
36 As Idéal Tourisme rightly submits, it also follows from Klensch, paragraph 10, that when Member States transpose directives into their national law they must comply with the principle of equal treatment.
37 However, the Community system of VAT is the result of a gradual harmonisation of national laws in the context of Articles 99 and 100 of the EC Treaty (now Articles 93 EC and 94 EC). As the Court has repeatedly stated, this harmonisation, as brought about by successive directives and in particular by the Sixth Directive, is still only partial (see Case C-165/88 ORO Amsterdam Beheer and Concerto v Inspecteur der Omzetbelasting [1989] ECR 4081, paragraph 21).
38 As the Belgian State stated at the hearing, the harmonisation envisaged has not yet been achieved, in so far as the Sixth Directive, by virtue of Article 28(3)(b), unreservedly authorises the Member States to retain certain provisions of their national legislation predating the Sixth Directive which would, without that authorisation, be incompatible with that directive. Consequently, in so far as a Member State retains such provisions, it does not transpose the Sixth Directive and thus does not infringe either that directive or the general Community principles which Member States must, according to Klensch, comply with when implementing Community legislation.
39 With respect to such a situation, it is for the Community legislature to establish the definitive Community system of exemptions from VAT and thereby to bring about the progressive harmonisation of national VAT laws (see, to that effect, Case C-305/97 Royscot and Others v Customs and Excise [1999] ECR I-6671, paragraph 31).