C-109/90
ECLI:EU:C:1991:54
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OPINION OF MR JACOBS —CASE C-109/90
O P I N I O N O F M R A D V O C A T E G E N E R A L JACOBS delivered on 7 February 1991 *
My Lords, regulation dated 2 March 1983, approved by the Bestendige Deputatie on 31 December 1983, under which any person who organizes public performances or entertainments within the area of the 1. In this case, the Bestendige Deputatie Commune, and for which those attending (executive branch) of the Provincieraad or participating are required to pay an (Provincial Council) of Brabant, Belgium, entrance fee, is liable to a special tax on the has asked for a preliminary ruling under gross amount of all receipts. The tax in Article 177 of the EEC Treaty on the inter- question is imposed on the total amount of pretation of Article 33 of the Sixth VAT the entrance fees, rents and cloakroom Directive (Directive 77/388/EEC on the charges, proceeds from the sale of harmonization of the laws of the Member programmes or dance cards and States relating to turnover taxes — common refreshments and any other charges. The system of value added tax: uniform basis of claim made by the Commune relates to a assessment, Official Journal 1977 L 145, dance hall operated by Giant and is for tax p. 1). Article 33 provides as follows: on its receipts at the rate of 2 5 % .
'Without prejudice to other Community provisions, the provisions of this Directive shall not prevent a Member State from 3. Giant appealed against this claim to the maintaining or introducing taxes on Bestendige Deputatie of the Provincieraad insurance contracts, taxes on betting and of Brabant, before which it maintained that gambling, excise duties, stamp duties and, the contested tax was in substance a more generally, any taxes, duties or charges turnover tax within the meaning of Article which cannot be characterized as turnover 33 of the Sixth VAT Directive and that the taxes.' Commune was not therefore entitled to levy it. The Bestendige Deputatie has submitted the following question to the Court for a preliminary ruling: The case turns on the meaning of the expression 'turnover taxes' for the purposes of that provision.
'Is the tax regulation of the Commune of Overijse dated 2 March 1983, by which any 2. The main action arises out of a claim person who habitually or occasionally made against NV Giant by the Commune of organizes public performances or enter- Overijse for the payment of tax in respect of tainments within the area of the Commune the year 1988. The claim is based on a local and requires those attending or participating
* Original language: English.
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to pay an entrance fee must pay a special members a Bestendige Deputatie, which acts tax on the amount of all receipts and by under the chairmanship of the governor of which in particular an annual tax of 25% is the province, who is appointed by the King. imposed on dance halls and restaurants The role of the Bestendige Deputatie is connected therewith on the total amount of mainly administrative, but for historical entrance fees, rents and cloakroom charges, reasons it also has jurisdiction in disputes the sale of programmes or dance cards, the over local taxes. In exercising this juris- proceeds from any refreshments and contri- diction, the Bestendige Deputatie holds butions or consideration which may replace public hearings in accordance with an or supplement such fees or prices, as well as adversarial procedure and is required to give any other charges, contrary to the reasons for its decisions. prohibition on the imposition of any taxes on turnover other than VAT laid down by Article 33 of Directive 77/388/EEC, or not?'
7. The jurisdiction of the Bestendige Deputatie in disputes over local taxes is now based on a Belgian Law of 23 December 4. The Court clearly cannot answer this 1986 (Moniteur belge, 12. 2. 1987, question as framed, for it asks for a ruling p. 1993). Article 7 of that Law provides that on the compatibility with the Sixth VAT where the dispute relates to a sum of not Directive of a specific provision of national less than BFR 10 000, appeal from the law. It is well established that the Court has decisions of a Bestendige Deputatie lies to a no jurisdiction in proceedings under Article Cour d'appel. Where the sum in issue is less 177 to give such a ruling. I would therefore than BFR 10 000, a Bestendige Deputatie interpret the question as asking in essence sits as a tribunal of last resort, although its whether a provision possessing the charac- decisions are subject to review on a point of teristics of the contested local regulation is law ('recours en cassation'). compatible with Article 33 of the directive.
8. In the light of these factors, I have no 5. Before examining the substance of the doubt that the Bestendige Deputatie must, question, it is necessary to consider the in the circumstances of the main action, be jurisdiction of the Bestendige Deputatie to regarded as a court or tribunal of a Member make use of the procedure established by State within the meaning of Article 177. Its Article 177. That procedure is available only jurisdiction to make a reference to this to a 'court or tribunal of a Member State' Court under that article is not therefore in and the question arises whether the doubt. Bestendige Deputatie constitutes such a body.
9. As for the substance of the question 6. It appears that, in Belgium, each prov- referred, the Court's case-law makes it clear incial council elects from among its that Community law does not at present
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OPINION OF MR JACOBS —CASE C-109/90
contain any restrictions on the power of the which is exactly proportional to the price of Member States to introduce taxes other the goods and services, irrespective of the than turnover taxes: see Joined Cases 93/88 number of transactions which take place in and 94/88 Wisselink ECR 2671, the production and distribution process paragraph 13, and Case 252/86 Bergandi before the stage at which the tax is charged. [1988] ECR 1343, paragraph 10. However, value added tax is chargeable on Moreover, the fact that a tax is levied on a each transaction only after deduction of the transaction which is already subject to VAT amount of value added tax borne directly by and that double taxation of that transaction the cost of the various price components. may result does not necessarily mean that The procedure for deduction is so the tax constitutes a turnover tax for the arranged . . . that taxable persons are auth- purposes of Article 33 of the Sixth VAT orized to deduct from the value added tax Directive: see Case 73/85 Kerrutt [1986] for which they are liable the value added tax ECR 2219, paragraph 22; Wisselink, cited which the goods have already borne' above, paragraph 14. (paragraph 18).
10. According to the Court's decision in Wisselink, the purpose of Article 33 is 'to 12. As the Commission points out, the prevent the functioning of the common disputed tax differs from VAT in a number system of value added tax from being of respects. In the first place, it is not of compromised by fiscal measures of a general application: it applies only within a Member State levied on the movement of limited geographical area and to a limited goods and services and charged on class of goods and services (see Wisselink, commercial transactions in a way paragraph 20). Moreover, because it is comparable to value added tax' based on gross receipts rather than on the (paragraph 17). It is therefore necessary to value added at the stage of each transaction, determine whether the local tax at issue in it is not possible to establish precisely what these proceedings is levied in a way fraction of the tax on each sale or provision comparable to VAT and whether it conse- of services may be taken to have been quently jeopardizes the functioning of the passed on to the consumer. common system of value added tax.
11. The essential characteristics of the VAT 13. However, there is in my view a more system were described by the Court in Wisselink as follows: basic distinction between the disputed tax and VAT. As the passage from Wisselink set out at paragraph 11 above makes clear, VAT is charged at each stage in the process of production and distribution. Taxable persons may deduct from the amount of tax ‘The principle of the common system of payable the VAT which the goods have value added tax consists... in the already borne. These characteristics, which application to goods and services up to the are fundamental to the VAT system, are not retail stage of a general tax on consumption possessed by the disputed tax.
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14. I conclude that the tax in issue is not does not therefore constitute a turnover tax levied in a way comparable to VAT and that within the meaning of Article 33 of the it is not likely to compromise the func- Sixth VAT Directive. tioning of the VAT system. In my view, it
15. Accordingly, I am of the opinion that the question referred by the Bestendige Deputatie should be answered as follows:
'A local tax imposed annually on dance halls and restaurants connected therewith in respect of entrance fees, rents and cloakroom charges, proceeds from the sale of programmes or dance cards and refreshments and any other receipts which replace or supplement such charges does not constitute a turnover tax within the meaning of Article 33 of Council Directive 77/388/EEC of 17 May 1977.'
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