C-35/90
ECLI:EU:C:1991:195
- Súd
- Súdny dvor Európskej únie
- IČS
- 61990CC0035
- Zdroj
- eur-lex.europa.eu ↗
COMMISSION v SPAIN
O P I N I O N OF MR ADVOCATE GENERAL T E S A U R O delivered on 7 May 1991 *
Mr President, aforementioned professional services liable Members of the Court, to VAT at the reduced rate of 6 % .
However, two years later a law on intel- 1. This application is for a declaration that, lectual property (Law N o 22 of by exempting from value added tax the 11 November 1987) exempted those professional services, including those whose services from VAT. consideration consists in copyright, provided by figurative artists, writers, literary contributors, newspaper and magazine illus- trators and photographers, musical That exemption, which the Commission composers, playwrights and persons considers to be contrary to the principle in responsible for the plot, adaptation, script Article 2(1) of the directive that VAT or dialogue of audio-visual works, the should have general application, is the Kingdom of Spain has infringed Article 2(1) subject of the present action. of the Sixth Council Directive (No 77/388/EEC) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common 3. The Spanish Government considers that system of value added tax: uniform basis of the exemption in question is justified by the assessment (Official Journal 1977 L 145, derogation referred to in Article 28(3)(b) of p. 1, hereinafter referred to as 'the the directive. directive') and has therefore failed to fulfil its obligations under the Treaty.
Article 28(3)(b) provides that during the transitional period (which was to have ended on 1 January 1983 but was 2. I shall remind you briefly of certain subsequently extended) Member States may circumstances in the present case which are 'continue to exempt the activities set out in important for what I have to say and as Annex F under conditions existing in the regards the rest refer to the Report for the Member State concerned'. Services eligible Hearing. for exemption under Annex F include services supplied by 'authors, artists, performers'.
Article 7(2) of the Spanish Law No 30 of 2 August 1985 which introduced the In the Spanish Government's opinion that scheme of value added tax made the provision allows all Member States,
* Original language: kalian.
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OPINION OF MR TESAURO —CASE C-35/90
including those who joined the Community According to the Commission, the subsequently, to maintain for the tran- provision, as is clearly apparent from its sitional period referred to in Article 28(4) terms, allows a Member State only to the exemptions applicable when the Sixth 'continue to exempt' specific activities. It Directive entered into force. thus allows only an existing exemption to be continued, but once VAT has been applied to specific services it prohibits their being subsequently granted exemption. In the present case it is common ground that in Spain the activities in question were Since the Spanish scheme which obtained subjected to the general scheme of VAT prior to VAT did not tax the services which pursuant to the Sixth Directive by Law are the subject of the present proceedings, it N o 30 of 2 August 1985 until the entry follows, in the Government's view, that into force of Law No 22 of 11 November Spain is authorized to apply to them a tran- 1987, that is, for more than two years. The sitional scheme of exemption in accordance exemption provided for by the aforemen- with Article 28. tioned 1987 law thus obviously constitutes a new exemption which is quite unjustified by Article 28(3)(b).
4. The Commission rejects that view for two reasons. In the first place, it considers that in view of the derogating nature of the 5. Let me say straightaway that of those rule, in the absence of a specific provision in two arguments put forward by the the Act of Accession, Article 28(3) cannot Commission the second seems to me apply to States which joined the Community decisive. subsequently. In its view, that is confirmed a contrario by the fact that in the case of Portugal the right to exempt from VAT certain transactions referred to in Article 28(3)(b) is expressly mentioned in the Act of Accession. On the other hand, the Act of Accession of Spain contains no reference to The wording of the provision is extremely the provision in question so that the possi- clear. It allows a Member State only to bility of relying on Article 28(3)(b) for the continue to exempt specific activities 'under purposes of justifying the exemptions in conditions existing in the Member State question must be regarded as excluded. concerned'. Conversely, that provision does not allow exemption to be granted simply to any transaction which was not subject to tax prior to the entry into force of the directive. In other words, once a Member State, like Spain in the present case, in implementation In the second place the Commission argues of the directive has subjected specific acti- that even assuming that Spain may rely on vities to VAT it can no longer subsequently the derogation in question, in any event the rely on Article 28(3)(b) to grant them exemption which is the subject of the exemption from VAT and from the general present proceedings falls outside the scope scheme of liability. Furthermore, to give of that provision and is not justified by it. States such a power, apart from the fact that
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it is quite excluded by the clear terms of the scope of existing exemptions after the date provision in question, would be contrary to of entry into force of the directive'. the principles of general application and neutrality in respect of the tax which are implied in the directive and which, as the 6. In view of those observations, I think it is Commission rightly pointed out, are an possible to grant the present application essential key in interpreting derogating without it being necessary to go further into provisions. the other argument put forward by the Commission that since the Act of Accession is silent on the subject, Spain may not rely In addition, the interpretation which I on Article 28(3)(b). Moreover, that propose seems to be in line with that sanc- argument does not seem to be convincing tioned by the Court in its judgment in Case since in the absence of specific limits or 73/85 Kerrutt v Finanzamt Mönchen- reservations the State which joins accepts all gladbach-Mitte [1986] ECR 2219 where it the rights and obligations resulting from the was stated that the wording of the provision acquis communautaire which as regards the in question precludes 'the introduction of Sixth Directive necessarily includes the new exemptions or the extension of the provisions of Article 28.
7. I therefore propose t h a t the Court grant the application and o r d e r the d e f e n d a n t to pay the costs.
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