C-338/97

PELZL AND OTHERS

OPINION OF ADVOCATE GENERAL ALBER delivered on 18 March 1999 *

A — Introduction question are not such as may be introduced or maintained in force under Article 33 of the Sixth Directive.

1. This case raises the question whether tourism taxes may be characterised as turnover taxes which, under Community law, may neither be introduced nor main- 3. The Sixth Directive, as amended by tained in force. Consequently, the Verwal- Council Directive (91/680/EEC) of tungsgerichtshof Wien (Administrative 16 December 1991 supplementing the Court, Vienna) has referred to the Court common system of value added tax and certain questions relating to the compat- amending Directive 77/388 with a view to ibility of taxes levisd in the Tyrol, Carinthia the abolition of fiscal frontiers2 provides: and Styria to develop tourism with Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment1 (herein- '1. Without prejudice to other Community after 'the Sixth Directive'). These taxes are provisions, in particular those laid down in referred to in Styria as 'interested party the Community provisions in force relating contributions', in the Tyrol as 'compulsory contributions' and in Carinthia as 'tourism to the general arrangements for the hold- levies'. I shall use the term 'tourism taxes' ing, movement and monitoring of products to refer to all the charges at issue. subject to excise duty, this Directive shall not prevent a Member State from main- taining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided however that those taxes, 2. The plaintiffs in the main proceedings all duties or charges do not, in trade between seek annulment of the relevant tax Member States, give rise to formalities demands on the ground that the taxes in connected with the crossing of frontiers.'3

7. Assessment of the tourism tax is based 5. The communes are graded (A, B, C or D) on the turnover of the individual under- or classified as 'chartered towns' according taking. Under Paragraph 31 of the Steier- to their importance for the purposes of märkiscbes Tourismusgesetz, the taxable tourism, which is measured, inter alia, by turnover is 'the sum of the taxable transac- the number of overnight stays spent per tions, within the meaning of... the Umsatz- head of population and the 'specific tour- steuergesetz (Law on Turnover Tax), ism turnover'. Communes which do not achieved in the last year but one'. The qualify for classification as communes of amount is fixed in accordance with tables importance for the purposes of tourism are which take account of the relevant tax graded in category D. Those graded A, Β or bracket and turnover of the taxable person C or classified as chartered towns are and the classification of the tourism com- mune in which he is liable for tax. There is a minimum and a maximum contribution. 4 — In the version published in Landesgesetzblatt No 55/1994. Provision is made for certain exceptions.

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8. Tyrol: Under the Tiroler Tourismusge- the charge to promote tourism), indepen- setz 1991 5 (Tourism Law of the Land of dent undertakings 'which derive benefit Tyrol), membership of a tourist association from tourism' must pay an annual tourism is compulsory for all traders, within the tax. An independent undertaking is deemed meaning of the Umsatzsteuergesetz 1994, to derive benefit from tourism if it is who have a 'direct or indirect' interest in engaged in any activity — or similar activ- tourism in the Tyrol. Thus, the taxes consist ity — listed in the Annex to that Law. That of compulsory contributions to one of the presumption is not, however, irrebuttable. local tourist associations and to the tourism development fund.

10. Carinthia: Under Paragraph 3(1) of the Kärntner Fremdenverkehrsabgabegesetz 1994 6 (Law of the Land of Carinthia on 'Does Article 33(1) of the Sixth Council Directive of 17 May 1977 on the harmo- 5 — Landesgesetzblatt No 24 in the version of the legislation nisation of the laws of the Member States published in LandesgHetzblatt No 71/1992 and 111/1994. relating to turnover taxes — Common 6 — Landesgesetzblatt fiit Kärnten No 59/1994 (in the version published in Landesgesetzblatt flir Kärnten No 89/1994). system of value added tax: uniform basis

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OPINION OF MR ALBER — JOINED CASES C-338/97, C-344/97 AND C-390/97

of assessment (77/388/EEC) preclude, on Case C-344/97 (Tyrol): the ground that it is in the nature of a turnover tax, the maintenance in force of a tax which is payable in a Bundesland (Regional State) of a Member State of the European Communities

'Is Article 33(1) of the Sixth Council Directive of 17 May 1977 on the harmo- nisation of the laws of the Member States relating to turnover taxes (77/388/EEC) to be interpreted with regard to the descrip- tion "characterised as turnover taxes" as — in respect of each calendar year by all precluding the imposition on traders by a undertakings directly or indirectly Member State of a tourism levy (contribu- involved in tourism which have their tion) which has the following features: registered office or a place of business within certain closely defined areas, where the sum of those areas comprises almost the whole area of the Bundes- land, and — it is payable by traders with a direct or indirect interest in the tourist industry and therefore by a large number of, but not all, traders;

area covered by the legislation (a system of value added tax: uniform basis of Bundesland ol: a Member State com­ assessment (77/388/EEC) preclude, on the posed of federal States) and not services ground that it is in the nature of a turnover to final customers, and turnover related tax, the maintenance in force of a tax to other services in so far as they are which is payable in a Bundesland (Regional not supplied exclusively or primarily State) of a Member State of the European within the area covered by the legisla­ Communities in respect of each calendar tion (the Bundesland of the Member year by all undertakings directly or in­ State); directly involved in tourism which have their registered office or a place of business within that Regional State, and the amount of which is essentially proportional to the turnover achieved by the undertaking in that Regional State within a calendar year, but where the rate of contribution varies — the amount of the levy varies according to the benefit deemed by the legislature according to the degree of benefit which the to be derived from tourism by the legislature deems the commercial sector in sector to which the taxpayer belongs; question (occupational group) to derive from tourism, and where no provision is made for the deduction of input tax?'

— the amount of the levy is higher in tourist areas than in others, and Β — Analysis

13. Several preliminary points must be — no provision is made for deduction of made concerning Article 33 of the Sixth input tax?' Directive.

14. As the Court has made clear on several Case C-390/97 (Carinthia): occasions (for example, in Kerrutt, Wisse­ link and Giant), Article 33 precludes sys­ tems of taxation which are concurrent with the system of VAT, 7and whose charging

may result in double taxation of the actions in a way comparable to VAT. 11 It is transaction concerned, only where such settled law (see, for example, Bozzi and taxes or duties can be characterised as Dansk Denkavit), that all taxes, duties and turnover tax. 8 charges which exhibit the essential charac­ teristics of VAT must be regarded as taxing the movement of goods and services in a way comparable to VAT. Thus, Article 33 does not preclude taxes, duties or charges which do not have the essential character­ istics of VAT.12 As regards those essential 15. The delimitation criteria, and the characteristics, the Court of Justice has wording of Article 33, must be considered repeatedly held that: in the light of the role of that provision in the harmonised system of turnover tax, which takes the form of a common system of VAT.9 Under Article 2 of the First VAT Directive, 10 the principle of that system involves the application to goods and services — up to and including the retail — VAT applies generally to transactions stage — of a general tax on consumption relating to goods or services. exactly proportional to the price of the goods and services, whatever the number of transactions which take place in the pro­ duction and distribution process before the stage at which tax is charged. However, on each transaction, VAT is chargeable only after deduction of the amount of VAT borne directly by the various cost compo­ — it is proportional to the price of those nents. goods or services.

16. In that context Article 33 of the Sixth — it is charged at each stage of the Directive seeks to prevent the functioning production and distribution process of the common system of VAT from being and thus added to the prices of the compromised by domestic fiscal measures goods and services and definitively levied on the movement of goods and borne by the final customer; 1 3 services and charged on commercial trans­

17. Some of the defendants in the main proceedings contend that those individual characteristics alone do not conclusively 20. The plaintiffs in the main proceedings determine compatibility with Article 33. take the view that the tourism taxes apply Rather, the tax at issue should be consid- generally. That is clear from the informa- ered in its entirety in the light of Article 33. tion provided by the national court accord- However, the essential characteristics of ing to which, in the Tyrol, for example, a VAT which have been laid down by the large number of occupational groups, but Court and normally examined to determine not all, have to pay the relevant contribu- compatibility with Article 33 must also be tions. The plaintiffs maintain that the tested for in thi«, case. If necessary, an accuracy of this information is beyond additional general assessment of the tour- doubt. ism taxes at issue may be made thereafter. Accordingly, it must first be determined whether those taxes exhibit the essential characteristics described above.

22. Even though the applicable legislation that is to say, turnover in Austria as a whole provides for exemptions, it is virtually with the exception of Vienna. The few impossible — according to the plaintiffs — objective exceptions make no difference to adduce the necessary evidence, since an since even the legislation on turnover tax indirect interest in the tourist industry is in provides for certain exceptions. According itself sufficient to make payment of the tax to the plaintiffs, this case is to be distin- compulsory. Even lawyers and doctors, for guished on its facts from SPAR 15 in which example, are deemed to possess a commer- the Court ruled that an Austrian levy to cial interest in tourism and liable to tax. support chambers of commerce was com- The criteria of benefit derived from tourism patible with the Sixth Directive. Whereas in does not restrict the range of taxpayers; it that case the tax attached to transactions merely determines the amount payable. For effected by suppliers, the tourism tax is that reason no sizeable occupational group based on transactions effected by the trader in any of the Austrian Bundesländer is himself. exempt.

23. Moreover, the plaintiffs maintain that 25. Lastly, the plaintiffs point out that, such tourism taxes are levied throughout even in terms of procedural law, there is a the federal territory — that is to say in close link with the law on turnover tax. For Austria as a whole — and thus they are example, the amendments to the Umsatz- levied across the board on all traders, steuergesetz were reproduced in the Tyrol whether or not they have any link with legislation on tourism tax. Also, a copy of tourism. The fact that the individual taxes the turnover tax assessment notice is sub- are laid down by the legislation of the mitted to calculate the tax. Bundesländer is irrelevant in that connec- tion. Unless the Sixth Directive is applied to the legislation of all the various Bundes- länder, it will very easily be circumvented.

27. However, the Federal Government of Austria and the Bundesländer concerned take the view that ::he tourism tax does not 30. The defendants also contend at several constitute a general charge on goods and junctures that the assigning of an occupa- services. In contrast with turnover tax, the tional group to a particular tax bracket taxable product is limited. The tourism tax merely means that the group in question is is levied only on benefit derived from deemed to derive a certain benefit from tourism, which may be regarded as value tourism. That does not mean, however, that created from tourism and therefore, more all those belonging to that occupational or less, as an added value specific to group — in the Tyrol, for example — are tourism. also compulsorily members of the local tourist association. Rather, such member- ship is based on the actual link between the trader and tourism. Moreover, special rules have been devised for entire commercial sectors since taxable turnover is not an appropriate criterion for determining tax- 28. In fiscal terms the tourism tax should ability in those cases. Moreover, in the case not be regarded as a tax on consumption, of 38% of compulsory members (around 21,000 traders), turnover is not taken as that is to say, as an indirect tax. From a the basis of assessment — they simply pay commercial point of view, turnover tax is a flat-rate contribution. always charged to final customers whereas the tourism tax, albeit calculated on the basis of turnover, is levied solely on the benefit derived by the trader.

only those transactions can properly be where it is levied on all commercial trans- regarded as at least indirectly related to actions in the Member State concerned. tourism there. In addition, although certain According to the case-law, a tax cannot be activities, such as the letting of accommo- characterised as a general tax if it applies dation to non-tourists, are subject to turn- only to certain goods, activities or cate- over tax, they are completely exempt from gories of person. Upon examining the tourism tax. legislation at issue, the Commission main- tains that it is not possible to determine with accuracy the number of communes and occupational groups actually taxed. It is possible to say, however — according to the Commission — that the tourism tax is not limited to certain goods, activities or 32. Tourism tax may be further distin- categories of person. guished from turnover tax by the fact that the latter also applies to foreign undertak- ings, whereas only persons with a registered office within the area covered by a parti- cular tourist association must become members of that association.

36. It is necessary, therefore, to determine 38. The Court gave a similar judgment in whether or not the tourism tax is levied on respect of a tax introduced by a commune all commercial transactions in any given under which any person who habitually or Bundesland. I agree with the plaintiffs that occasionally organised public performances such an analysis must be based on the or entertainments within the commune and information provided by the national court. required those attending or participating to It is clear from the orders for reference, at pay an entrance fee had to pay a special tax least in respect of Tyrol, that many, but not on the gross amount of all receipts. It was all, occupational groups have to pay the tax not regarded as a general tax since it at issue. It cannot: be said,' however — as applied only to a limited category of goods the national court goes on to point out — and services. 17 that it is levied only on certain individual transactions. Even on the basis of that information, however, it is still not clear whether the test for general applicability is satisfied. In other words, the question of the general applicability of the tourism tax must also be examined in the case of the Tyrolean legislation. In the case of both 39. Finally, a supplementary contribution Carinthia and Styria, such an exercise is to a lawyers' insurance fund, of which all unavoidable, as the information provided avvocati in continuous practice in Italy are by the national court is markedly less clear. required to be members, was not consid- ered to be a charge of a general nature. Any person whose name appeared on the pro- fessional register had to subscribe a per- centage of all fees used to calculate annual turnover for VAT purposes. In that case, too, the Court held that the supplementary contribution was not a generally applicable charge, on the ground that only avvocati were affected and, moreover, the charge was not levied on all fees, only on those pertaining to court work. 18

42. Furthermore, the assessment as to gen- eral applicability is not affected by the fact that, as was stated at the hearing, the Carinthia legislation does not levy the tax on traders within the meaning of the Umsatzsteuergesetz but only on certain independent businesses which derive bene- fit from tourism and obtain certain income within the meaning of the Einkommens- steuergesetz (Income Tax Law). It may be that the range of those liable to pay is somewhat narrower than in the other 41. That conclusion is substantiated by the Bundesländer. As demonstrated, 19 how- fact that, as the parties observe, the notion ever, that does not reverse the ratio between of 'indirect benefit' is construed very rule and exception. The fact remains that broadly. Even doctors and lawyers are the tax does not apply only to certain regarded as indirect beneficiaries of tour- categories of person and activity. That ism, even when, in the case of the former, conclusion is not invalidated by the fact they are able to prove that there are no that exemption may be gained simply by tourists among their patients. In this con- making a case that no benefit is derived text, mention must also be made of the from tourism, since such exemptions may subsidiary clause in the Styria legislation, be applied only in isolated cases. under which all professions are initially assigned to a special tax bracket. Even though the assignation of a profession to a tax bracket reflects nothing more than a presumption and all persons may apply for exemption — if this is not made too difficult — such exemptions can be made 43. It is submitted that general applicabil- only in isolated cases. The same is true of ity cannot be assumed on the basis of transactions effected outside the Tyrol, annual turnover alone. That argument which are not taken into account in the relies on Rousseau Wilmot, in which the calculation of the tourism tax. Essentially, Court held that the purpose of Article 33 the tax must be assumed to apply to a large cannot be to prohibit the Member States number of occupational groups. Likewise, from maintaining or introducing duties or the fact that certain communes can have charges which are not fiscal but have been themselves exempted can constitute no introduced specifically in order to finance more than an exception. In other words, the tax is levied on vast sectors of the economy. That does not satisfy the test laid 19 — See point 40 above.

44. It must therefore be concluded that the tourism tax applies generally. It is uncer- tain, however, whether it applies generally to goods and services, and therefore taxes consumption. That is probably the case as it is levied on the annual turnover of the 46. Another special feature of this case undertaking concerned. The contention must be addressed. The issue here is not that turnover is used only to calculate the whether the legislation of a Member State tax changes nothing in itself. The use of is compatible with the Sixth Directive, but turnover as the basis of calculation cannot whether the legislation of certain Bundes- be compatible with the Sixth Directive if it länder within a Member State is compati- results in turnovei being taxed in a manner ble. This, also, must be compatible with the which is inconsistent with Article 33. Simi- Sixth Directive. In that connection the larly, the existence of certain exceptions Commission rightly refers to the judgment cannot alter the fact that transactions are in Giant.21 In that case the Court went so taxed generally. far as to examine the compatibility of a district tax with the Sixth Directive. It follows that taxes levied by Bundesländer ought certainly to be compatible with the Sixth Directive and the localised nature of the Styria tourism tax — a point relied upon by the defendants — alters nothing. Accordingly, I shall now examine whether or not the legislation enacted by the various 45. However, there could be doubts as Austrian Bundesländer to govern tourism regards Carinthia and Styria since in both tax is compatible with the Sixth Directive.

48. The plaintiffs maintain that the tax at issue is proportional. They claim that the base figure to be established for the purpose of calculation is a percentage of the taxable 50. As regards the Styrian legislation, the turnover. The fact that the amount payable defendants state that the starting-point in depends on the tax bracket and locality each tax bracket is a fixed rate expressed in rating does not alter the relationship of thousandths. However, since the benefit strict proportion between turnover and the derived from tourism is the point of amount of tourist tax payable. They argue reference, that rate will be higher, the that the plethora of base figures, tax greater the perceived benefit. The tax is brackets and locality ratings merely gives not proportional, therefore, but progres- rise to a large number of tax rates. They sive. Lastly, in the case of certain tax also point out that fixed rates are applied in brackets and locality ratings in Styria, a only very limited sectors. fixed amount may be payable, which means that the charge is not proportional.

49. With regard to the Tyrol, for example, the defendants contend that the tax is not proportional because certain transactions have to be deducted from the total taxable turnover. Furthermore, the base figures 51. By contrast, the plaintiffs reiterate that, used to calculate the latter represent a although the rates may vary depending on percentage of turnover, which varies with the locality, the rate applied to each indi- each tax bracket. As a result, the tax — vidual trader remains constant and may therefore be regarded as strictly propor- tional. The fact that it is rounded off to a 22 — See footnote 10 above. flat rate at the lower contribution levels

55. As regards determination of the base figures, these, too, represent a percentage of the turnover, which in turn is propor- tional to the transactions made. The asser- 53. Before making a legal assessment of the tion that the purpose of determining those arguments put forward by the parties, it figures is to base the tax only on the share must first be noted that a tax based on the of proceeds attributable to tourism demon- benefit derived from tourism can neverthe- strates an intention to apply a certain less be proportional within the meaning of degree of weighting. Thus, the individual the Umsatzsteuergesetz. In order to evalu- goods and services — or, rather, the corre- ate that benefit, the tourism tax is based on sponding prices — are to be taxed at turnover related to tourism. This, too, can different rates. However, those base figures be taxed proportionately, like VAT. I shall are fixed according to the tax bracket and now examine whether that is the case here. the benefit which that group is deemed to derive from tourism. If, however, it is assumed that certain services are always provided by the same occupational group, the tax levied on those services ought to remain constant. However, the fact that — in the Tyrol, for example — the classifica- 54. I cannot agree with the defendants' tion of the locality must also be taken into contention that, because the total taxable account means that a particular transaction turnover does not include certain transac- or service may be taxed differently in tions, such as those relating to exports, the certain circumstances. As the plaintiffs tax is not proportional. The question at rightly observe, the t a x nevertheless issue is whether the tax is exactly propor- remains the same for each individual trader tional to the taxable transactions. The fact and is always proportional to the price of that certain transactions are not taxable the goods concerned.

57. It is also argued that the tourism tax 60. Thus, the exact proportionality cannot be an exactly proportional charge required under the common system of since the sole point of reference is the VAT is not a feature of the tourism tax. In taxpayer's total turnover. However, that is the Tyrol, for example, where a fixed not completely true. Although VAT is minimum amount is paid in over one-third charged proportionately on each transac- of cases, the number of traders concerned is tion at the retail stage, that is to say, when not insignificant. No exact figures are passed to the final consumer, the VAT available for Carinthia and Styria. How- payable by the trader as a person subject ever, it is clear from the parties' submissions to VAT is also calculated on the basis of the that proportional calculations are made in total turnover, as the plaintiffs correctly all but very few cases. It is ultimately for submitted at the hearing. Thus, the differ- the referring court to examine that ques- ence between the calculation of the tourism tion. However, in principle it is sufficient tax and calculation of VAT does not appear that the individual rules provide for mini- to be so great that the tourism tax cannot mum and maximum contributions and be regarded as proportional. rounding off to flat rate amounts to note

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that what we have here is not an exactly by the national legislation. Furthermore, it proportional charge as provided for in the is not necessary for an invoice to be issued. system of VAT. If account is also taken of The plaintiffs conclude from this that the the fact that it is uncertain whether the passing on of the charge in the same way as customer is taxed in a way comparable VAT is not a necessary condition for with the system of VAT, it must be noted classifying it as turnover tax within the that the contributions in this case are not meaning of Article 33 of the Sixth Direc- proportional. tive.

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64. The Commission makes that point and The fact that the tax is incorporated as a adds that, in contrast to VAT the tourism factor in the calculation of the price does tax is paid not by the final consumer but by not mean that it can be characterised as a the trader. Tourism taxes do not apply to turnover tax. Attempts are even made to deliveries to final customers. I concur with pass on income tax in a similar manner. Commission where it adds that, even if the tax were charged to the consumer (as part of the cost) that would not constitute passing-on within the meaning of the Directive. It does not involve direct passing on, but at most the incorporation of costs in the price. Only the proportional charging 66. The assertion that the trader is unable of a tax or levy on the transaction con- to determine the charge levied on his cerned — as in the case of VAT — can transactions may be rejected in cases where constitute direct taxation of the final con- the tax constitutes a proportional charge sumer within the meaning of the Sixth which does not vary from year to year. Directive. None of the parties has suggested However, as we have already seen, the that the tourism tax is passed on to the tourism tax is not always calculated pro- consumer in such a manner. The fact that portionately. the costs may be incorporated in the calculation of the price is not sufficient.

Charging the tax at each stage of the production and distribution process

Possibility of deduction of input tax 69. Since the tour:.sm tax is not passed on the final consumer, it must be concluded that it is not charged at each stage — down to the final customer. The plaintiffs' argu- ment that the tax is imposed on an extremely broad range of traders and is therefore charged at each stage of the 71. If the last of the essential criteria laid production process does not alter this. down by the Court is to be satisfied, it must Admittedly, a particular trader on whose be possible to deduct the tax already paid activities the tax is levied receives, for his on goods and services from the turnover part, goods and services on which tourism tax so that it is levied only on the added tax has already been paid. That does not value provided by the trader. mean, however, that the final stage, that is to say, delivery to the final consumer, is included in that.

72. In that respect reference must first be made to the information provided by the national court. This shows that none of the 7 0 . T h e C o m m i s s i o n also refers t o tourism taxes at issue provide for deduction Giant,28 in which the Court ruled that a of input tax. However, since all the parties c o n c e r n e d have c o m m e n t e d on this point — with different conclusions — each 28 — Case C-109/90, cited in footnote 7. submission must be examined here.

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73. Some of the plaintiffs in the main mission adds that the tourism tax in both proceedings maintain that it is possible to Styria and the Tyrol is levied on the gross deduct input tax in the context of tourism amount of all receipts (and on factors not tax. The tourism tax is fixed as a propor- relating to turnover such as inclusion in a tion expressed in thousandths of the base occupational group or locality class), not figure, constituted by the taxable annual on the value added at each transaction. To turnover. Clearly, therefore, added value is corroborate that contention it refers finally included. to the questions referred for a preliminary ruling which show that the Verwaltungs- gerichtshof also considers that no provision is made for the deduction of input tax.

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79. Even though the grounds given in the judgment in Giant, to which the Commis- 82. If the only taxes prohibited were those sion refers, are not very comprehensive, it is which provide for the possibility of deduct- evident from the foregoing that the deduc- ing input tax, the legislature could easily tion of input tax is not possible in respect of circumvent the prohibition on other taxes the tourism taxes. similar to turnover tax contained in

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Article 33 by refusing to allow the deduc- referred to above, 32 in Giant the Court also tion of input tax. examined whether the district tax at issue made possible the deduction of input tax. It cannot be assumed, therefore, that the Court intended to exclude the possibility of deducting input tax from the essential characteristics of VAT.

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when appraising a tax in the light of pared with traders from other Member Article 33, 3 3 the possibility of deducting States. In that connection it must again be input tax must be regarded as an essential noted that the Court has consistently held characteristic of VAT. that Member States may apply taxes along- side VAT to the same transaction, provided that such taxes cannot be characterised as turnover taxes. Thus, the aim of Article 33 is not to prevent Member States from subjecting transactions to other charges in addition to VAT.

86. Nevertheless, since, as we have seen, the tourism tax does not satisfy all the other essential criteria laid down by the Court, there is r..o need to examine this point further. 88. As regards the competitive disadvan- tages suffered by Austrian traders in rela- tion to those in other Member States, it should be noted that the taxes are used principally to improve tourism, thus cer- tainly making the latter more attractive and justifying the 'extra cost'. Moreover, a greater financial burden on residents does not infringe the prohibition on discrimina- Additional overall examination tion contained in the Treaty, or competition law. The question whether the amount of the tax is warranted at national level is a separate issue and need not be examined here.

C — Conclusion

90. For the above reasons, I propose that the Court reply as follows to the questions referred to it:

Case C-338/97:

Article 33(1) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment does not preclude the maintenance in force of a tax which is payable in a Bundesland (Regional State) of a Member State of the European Communities

— in respect of each calendar year by all undertakings with as direct or indirect interest in tourism which have their registered office or a place of business within certain closely defined areas, where those areas together comprise almost the entire Bundesland, and

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— it is paid to a local tourist association to finance the development of the tourist industry or to a fund to be used for the whole region (Land); I - 3345

OPINION OF MR ALBER — JOINED CASES C-338/97, C-344/97 AND C-390/97

— the basis of assessment is the annual turnover with certain exceptions, in particular turnover related to services to customers whose place of residence (seat) is outside the area covered by the legislation — in so far as those services are not for a business situated within the area covered by the legislation (a Bundesland of a Member State composed of federal States) and are not services to final customers — and turnover related to other services in so far as these are not supplied exclusively or primarily within the area covered by the legislation (the Bundesland of the Member State);

— the amount of the levy varies according to the benefit deemed by the legislature to be derived from tourism by the sector to which the taxpayer belongs;

— the amount of the levy is higher in tourist areas than in others, and

— no provision is made for deduction of input tax.