Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2006-02-09
22. The subject-matter of an action brought under Article 226 EC is delimited by the pre-litigation procedure provided for by that provision (see Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23, Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 11, and Case C-456/03 Commission  v Italy  [2005] ECR I-0000, paragraph 35). The application must therefore be founded on the same grounds and pleas as the reasoned opinion (see, inter alia, Case C-234/91 Commission v Denmark [1993] ECR I-6273, paragraph 16, and Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 28). If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court (see Case C-439/99 Commission v Italy , paragraph 11).
23. However, that requirement cannot be stretched so far as to mean that in every case the wording of the reasoned opinion and the subject-matter of the proceedings must be exactly the same, if the subject-matter of the proceedings has not been extended or altered but has simply been limited (see Case C-139/00 Commission  v Spain  [2002] ECR I-6407, paragraph 19, and Case C-203/03 Commission  v Austria [2005] ECR I-935, paragraph 29).
26. The main question in this dispute is whether the auctioneer’s profit margin on the sale of works of art imported under the arrangements for temporary importation must be taxed as a transaction within the territory of the country in accordance with the conditions referred to in Article 16(1) of the Sixth Directive. However, the Commission also pleads infringement of Articles 2(1), 5(4)(c) and 12(3). It must therefore be determined whether those provisions have been infringed as alleged.
33. As the Court has already held, it may be established from an analysis of the characteristics of the common system of VAT that, as regards transactions within the territory of a Member State, the chargeable event is constituted by the supply of goods for valuable consideration by a taxable person acting as such, whereas as regards imports the chargeable event is constituted by the mere entry of the goods into the territory of a Member State whether or not there is a transaction, and irrespective of whether the transaction is carried out for valuable consideration or free of charge, be it by a taxable person or a private person (see, inter alia, Case 15/81 Schul  [1982] ECR 1409, paragraph 14).
40. Since that provision gives Member States the option to exempt certain transactions effected within the territory of the country for goods placed under arrangements or situations provided for by that provision, including the arrangements for temporary importation, it also requires them to fulfil certain conditions before they apply that exemption.
41. Although the time of definitive importation of goods, placed under arrangements for temporary importation upon entry into the Community, is deferred pursuant to Article 7(3) of the Sixth Directive to the time those arrangements cease to be applicable to the goods, it follows from the derogation provided for in Article 16(1) of that directive that all transactions effected under those temporary arrangements must be taxed as if they had been effected within the territory of the country after the definitive importation of the goods.