C-203/87
ECLI:EU:C:1988:524
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- Súdny dvor Európskej únie
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- 61987CC0203
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- eur-lex.europa.eu ↗
COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 2 December 1988 *
Mr President, (2) the importation of goods'. Members of the Court,
3. The derogation was extended until 31 December 1982 by Council Decision 82/424/EEC of 21 January 1982 (Official 1. On 3 November 1981 the Council Journal 1981, L 184, p. 26) and until 31 adopted, at the Italian Government's December 1983 by Council Decision request, Decision 81/890/EEC authorizing 84/87/EEC of 6 February 1984 (Official the Italian Republic to derogate temporarily Journal 1984, L 40, p. 30). However, the from the value-added tax arrangements in Italian Republic maintained the derogation the context of aid to earthquake victims in in force by means of a series of decree-laws southern Italy (Official Journal 1981, adopted in 1984, 1985 and 1986 and, as it L 322, p. 40). informed the Court in answer to a question, the exemption is to remain in force until 31 December 1988. The Commission therefore brought an action against the Italian Republic under Article 169 of the Treaty for failure to fulfil its obligations, claiming that 2. Article 1 of that decision authorized the it had infringed Article 2 of the Sixth VAT Italian Republic until 31 December 1981, to Directive. exempt, with refund of the tax paid at the preceding stage, the transactions which are listed, together with the arrangements for exempting them, in the annex to the decision. The list covers various transactions 4. The Commission argues that for the for the supply of goods and services which, Italian Republic to exempt from tax trans as such, unquestionably fall within the scope actions which, according to the wording of of the Sixth Council Directive (77/388) the directive, must be subject to value-added (Official Journal 1977, L 145, p. 1) as tax constitutes a derogation which is devoid defined in Article 2 thereof, which provides of any legal basis. In its view, it is possible that 'the following shall be subject to to derogate from the Sixth Directive only in value-added tax: the cases provided for in Title X thereof or by virtue of an ad hoc authorization granted by the Council. There ceased to be any such authorization as of 31 December 1983 and the exemption maintained in force by Italy until 31 December 1988 is not covered by (1) the supply of goods or services effected Title X. Consequently, there is a manifest for consideration within the territory of and unquestionable infringement of the the country by a taxable person acting Sixth Directive and, in particular, of Article as such, 2 thereof.
* Original language. French
OPINION OF MR MISCHO — CASE 203/87
5. The Italian Republic raises various the need to ensure equality of treatment as arguments relating to the nature and the between the various Member States as objectives of the derogations from the Sixth regards collection of the Community's own Directive. resources, is that there should be uniformity as to the transactions which are taxable. This necessarily implies uniform rules as to exemptions'. 2 6. It argues in the first place that it cannot be considered, as the Commission claims, that Title X is exhaustive. In other words, derogations from the directive are possible 9. It is patent that that objective of despite the fact that they are not referred to uniformity would not be achieved if the in Articles 13 to 16, which make up Title X. provisions of Title X were not regarded as The fact that such derogations — like those exhaustive, and if as a result the Member at issue in this case — are not mentioned States were free to grant such exemptions as therein simply indicates that they fall they thought fit. outside the subject-matter covered by the directive itself.
10. However, the Italian Republic further argues, by reference to the 11th recital in 7. I cannot agree with that view, which, the preamble to the Sixth Directive, that the moreover, is contradicted by the defendant's essential objective of the directive is conduct in so far as the defendant itself precisely that of securing the collection of asked the Council for authorization to the Community's own resources in a derogate from the directive. It therefore uniform manner. It maintains that the certainly considered that the measures measures granting exemption taken by Italy which it intended to take fell within the fully respect that objective since they were field covered by the directive. organized, in accordance with the conditions laid down by the Council, in such a way as to eliminate any impact on own resources. 8. Furthermore, the exhaustive nature of Title X of the directive also emerges clearly from the explanatory memorandum of the proposal for a sixth directive submitted to 11. It seems to me that two comments are the Council by the Commission on 29 June called for in this connection. In any event, 1973. It states that ' ... the common rules the Italian Republic is not complying with must be arrived at by determining the area all the conditions laid down by the Council, of application for value-added tax which since it has continued to grant the will be identical under each national law, exemptions in question beyond the particularly as regards ... which trans time-limit set by the latter. actions are taxable or exempt'. 1 The Commission adds in its comments on Title X that whereas 'Article 10 (3) of the Second Directive of 11 April 1967 left the Member 12. Secondly, the objective of uniformity States completely free ... to provide for with regard to the collection of own whatever exemptions they thought fit. . . the resources is indeed important, but it is not purpose of the present directive, dictated by the only aim of the directive, as witness in particular the fourth recital in the preamble 1 — See Bulletin of the European Communities — Supplement 11/73,11. 7. 2 — Op. cit., p. 15.
COMMISSION v ITALY
thereto, which refers to the ultimate lays down the principle that all supplies of achievement of a common market goods or services and imports of goods are permitting fair competition and resembling a to be subject to value-added tax. real internal market. Moreover, the Court has recently referred to this. 3
15. The Italian Republic cannot therefore 13. The Italian Republic also claims that the be entitled to exempt transactions which exceptional, temporary conditions which come under the directive by virtue of Article determined the adoption of the Council's 2 thereof and which are not included in the decision to grant a derogation still obtain. exhaustive list set out in Title X by claiming For its part, the Commission considers that that among the various objectives pursued three years after the earthquake most of the by the directive there is one that its conduct reconstruction work must have been does not undermine. completed and hence there is no longer any justification for extending the exemptions. I consider that in taking that view the Commission has not made a manifest error of assessment. 16. Lastly, at the hearing the Italian Republic further argued that the tax exemptions maintained in force were 14. Lastly, the Italian Republic argues that covered by Article 92 (2) (b) of the EEC logically the Commission should have Treaty, which provides that 'the following claimed that it has infringed the more recent shall be compatible with the common Council decision and not Article 2 of the market ... aid to make good the damage Sixth Directive. For my part, I certainly caused by natural disasters or exceptional agree that the Commission's argument that occurrences'. However, under Article 42 (2) since there is no longer any legal basis for of the Court's Rules of Procedure no fresh the derogation granted to the Italian issue may be raised in the course of Republic, the latter is once again subject to proceedings unless it is based on matters of the ordinary legal rules applicable in this law or of fact which come to light in the area, that is to say Directive 77/388. And it course of the written procedure. That is not is indeed Article 2 of that directive which the case here.
17. For all those reasons I propose that the Court should uphold the Commission's application and :
(i) declare that , by granting between 1984 and 1988 inclusive an exemption from value-added tax, with reimbursement of the tax paid at the preceding stage, in
3 — Sec in particular lhe judgments of 12 July 1988 in Joined Cases 138 and 139/86 Direcl Cosmetici and Others [1988] LCR 3937, paragraph 23, and of 5 July 1988 in Case 289/86 Vereniging Happy Family v Inspecteur der Omzetbe- lasting [1988] ECR 3655, paragraph 16
OPINION OF MR MISCHO — CASE 203/87
respect of certain transactions carried out for earthquake victims in Campania and Basilicata, the Italian Republic has infringed the provisions of Article 2 of Council Directive 77/388/EEC 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 (Sixth VAT Directive);
(ii) order the Italian Republic to pay the costs.