C-267/99
ECLI:EU:C:2001:190
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URBING-AD AM
OPINION OF ADVOCATE GENERAL TIZZANO delivered on 29 March 2001 1
1. By decision of 15 July 1999, the Tribu- the context of that directive, for reasons nal d'arrondissement de Luxembourg that will become clear below, a distinction (hereinafter 'the national court') referred is to be made between: to the Court for a preliminary ruling two questions concerning the interpretation 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 assess- — first, the rules governing the reduction ment 2(hereinafter 'the Sixth Directive'). In of VAT rates on which the Luxem- particular, the national court asks the Court bourg legislation on the rates applic- to rule on the concept of a liberal profes- able to the liberal professions is based; sion as referred to in point 2 of Annex F to the Sixth Directive with a view to establish- ing whether that concept covers the activ- ities of managing agents of buildings in co- ownership and whether, therefore, the reduced rate of VAT provided for the liberal professions by Luxembourg law may be — second, the rules governing VAT applicable to that activity. exemptions, containing the reference to the liberal professions, which are the subject of the present reference for a preliminary ruling.
Legal framework
The rules governing the reduced rates of Community law VAT referred to in Article 12(3) and (4) and Article 28(2)(e) of the Sixth Directive.
2. As regards Community law, the Sixth Directive, as indicated, is relevant here. In
1 — Original language: Italian. 3. Under Article 12(4) of the Sixth Direc- 2 —OJ 1977 L 145, p. 1. tive Member States originally were permit-
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ted to impose reduced rates of VAT on provides furthermore that 'Member States certain goods or services. The only binding which at 1 January 1991 applied a reduced obligation on Member States was to fix the rate to supplies of goods and services other rate so that 'the amount of value added tax than those specified in Annex H may apply resulting from the application thereof shall the reduced rate or one of the two reduced be such as in the normal way to permit the rates provided for in Article 12(3) to such deduction therefrom of the whole of the supplies, provided that the rate is not lower value added tax deductible under the than 12%'. provisions of Article 17'.
The rules governing VAT exemptions re- ferred to in Article 28(3)(b) of the Sixth Directive
4. Subsequently those rules were partially amended by Council Directive 92/77/EEC 5. Article 28(3)(b) of the Sixth Directive of 19 October 1992 supplementing the provides that Member States may 'continue common system of value added tax and to exempt the activities set out in Annex F amending Directive 77/388 (hereinafter under conditions existing in the Member 'Directive 92/77') 3. Article 12(3)(a) of the State concerned'. Point 2 of Annex F Sixth Directive — as amended by Arti- includes in such activities: cle 1(1) of Directive 92/77 — now pro- vides that 'Member States may also apply either one or two reduced rates. The reduced rates may not be less than 5% and shall only apply to supplies of the categories of goods and services specified in Annex H' (which, for the purposes of the present case, do not include the services supplied by the liberal professions). Arti- 'Services supplied by authors, artists, per- cle 28 (referring to 'Transitional Provi- formers, lawyers and other members of the sions') of the Sixth Directive — as amen- liberal professions, other than the medical ded by Article 1(4)(e) of Directive 92/77 — and paramedical professions in so far as these are not services specified in Annex B to the second Council Directive of 11 April 3 — OJ 1992 L 316, p. 1. 1967' (emphasis added).
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The rules of Luxembourg law governing journalists, interpreters, translators and VAT rates any other similar activities.
9. Article 40 of the VAT Law was subse- 6. The Luxembourg legislature opted not quently amended by Article 8 of the to apply Article 28(3)(b) of the Sixth Finance Law of 20 December 1991 which Directive in order to exempt from VAT fixed — as from 1993 — an intermediate the activities just referred to. Instead, it had rate of 12% for activities in the exercise of recourse to the option to apply reduced a liberal profession; in relation to those rates as permitted by Article 12(3) and (4) activities, a new Grand-Ducal Regulation and Article 28(2)(e) of the Sixth Directive. of 21 December 1991 reproduced the non- exhaustive list of professions set out in the abovementioned Regulation of 7 March 1980. According to the information sup- plied by the Commission, that amendment to the rate was connected to the adoption by the Community of Directive 92/77 7. According to the order for reference, referred to above. under Article 40(4)(b) of the Grand-Ducal Law of 12 February 1979 on VAT a reduced rate of 6% (instead of the standard rate of 15%) applies to activities pursued in the exercise of a liberal profession, within the limits and under to the conditions laid The activity of a managing agent of build- down by the Grand-Ducal regulation. ings in co-ownership in the Grand Duchy of Luxembourg
10. As the order for reference also notes, 8. The order for reference also makes clear under the Law of 16 May 1975 on the co- that Article 4 of the Grand-Ducal Regula- ownership of buildings, the co-owners of a tion of 7 March 1980 — laying down the building or group of buildings must belong limits and conditions for applying VAT at to a co-ownership association which is a the reduced rate within the meaning of legal entity in its own right. Article 40 of the law of 12 February 1979 — included in the concept of liberal profession the activities of lawyers (avoués and avocats), notaries, process-servers, property administrators or trustees (admin- 11. According to the provisions of the istrateurs de biens), engineers, architects, Grand-Ducal Regulation of 13 June 1975 surveyors, inspectors, technicians, che- laying down measures for implementing the mists, inventors, consultants, accountants, law on co-ownership, the managing agent veterinary surgeons, journalists, photo- is generally appointed by the co-owners in
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general meeting and any natural person or 14. Mrs Adam then appealed against those legal entity may assume the office of decisions to the Tribunal d'arrondissement managing agent. The managing agent de Luxembourg claiming that her activities ensure compliance with the co-ownership were those of a liberal profession and, as regulation and the decisions of the general such, according to the Luxembourg tax meeting; he manages the building; he legislation, were entitled to a reduced VAT attends to its conservation and mainte- rate of 6% for the years 1991 to 1992 and nance; in an emergency, he must, on his the intermediate rate of 12% for the years own initiative, see to the carrying out of all 1993 to 1994 instead of the standard rate works necessary for the protection of the of 15%. building; he normally represents, after authorisation by the meeting, the co-own- ership association in civil matters and in legal proceedings.
15. In considering the matter, the national court noted at the outset that while Lux- embourg legislation relating to VAT con- tains a list of activities covered by the Facts and questions for a preliminary ruling concept of liberal profession, it does not provide a definition of that concept. Find- ing, however, that that legislation trans- poses into Luxembourg law the Commu- 12. Mrs Christiane Adam is a managing nity directives relating to VAT, the national agent of buildings in co-ownership in court concluded that 'Luxembourg legisla- Luxembourg. In her VAT returns in respect tion on the rates which apply to the liberal of that activity for the financial years 1991 professions must be interpreted in accor- to 1994 she applied the reduced rate dance with the provisions of Community provided for by the Luxembourg law for law relating to VAT'. the liberal professions on the ground that, in her judgment, the activity in point should be included in that category.
16. More specifically, it noted that under 13. However, this was not the view of the the terms of the Sixth Directive the 'stan- Administration de l'enregistrement et des dard' VAT rate is established by each domaines (Luxembourg administrative Member State; that under Article 12 of authority responsible for VAT) which the Sixth Directive Member States may issued relevant adjustment notices impos- apply increased or reduced rates for certain ing the standard rate of 15%. Mrs Adam's services and, finally, that under the transi- appeals against those notices were in vain, tional provisions set out in Article 28(3) of because they were rejected by the Director the Sixth Directive Member States may of that Administration by decisions of 11 continue to exempt from VAT certain and 15 November 1996. services listed in Annex F, including those
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supplied by 'members of the liberal profes- the Commission have submitted observa- sions'. tions to the Court. Their conclusions may be summarised as follows.
17. Specifically on the basis of that latter point, the national court therefore decided to refer to the Court, under Article 234 EC, the following questions for a preliminary 19. Both the administration de l'enregistre- ruling: ment et des domaines and the Commission have pointed out that the Community provision of which an interpretation is sought is not applicable in the present case since the national legislation in question concerns the reduction of VAT rates for the '1. Is the concept of a liberal profession liberal professions, referred to in Arti- mentioned in point 2 of Annex F to the cle 12(3) and (4) and Article 28(2)(e) of Sixth Council Directive 77/388/EEC on the Sixth Directive, and not VAT exemp- the harmonisation of the laws of the tions, referred to in Article 28(3)(b), and Member States relating to turnover Annex F to that Directive, referred to in the taxes an independent concept of Com- first question. While the Luxembourg munity law? Administration infers from this that the Court has no jurisdiction to rule on the questions referred to it (and only in the alternative suggests a negative reply to both questions), the Commission proposes that a If the answer to the first question is in the reply be given to both questions referred by affirmative: the national court, even if only to establish that the Member States are competent to determine the activities eligible for a reduced rate, with the sole proviso that the principle of VAT neutrality be 2. Does the concept of a liberal profession respected. cover the activity of managing agent of buildings in co-ownership?'
20. For her part, Mrs Adam maintains that the Court has jurisdiction on the grounds Arguments of the parties that the legislation relating to VAT is 'eminently of a Community nature'. As regards the substance of the matter, she repeats that the activity of a managing 18. In addition to the parties to the main agent of buildings in co-ownership should proceedings, the Danish Government and be categorised as a liberal profession.
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21. Finally, the Danish Government, with- 23. On that point, as we know, the Court out dealing the question of the Court's has consistently held that in principle 'it is jurisdiction, proposes that a reply be given solely for the national court before which to the first question to the effect that the the dispute has been brought, and which concept of liberal profession referred to in must assume responsibility for the subse- point 2 of Annex F to the Sixth Directive quent judicial decision, to determine in the constitutes a concept of Community law light of the particular circumstances of the which, none the less, must be defined in the case both the need for a preliminary ruling light of the national law of the Member in order to enable it to deliver a judgment States. Accordingly, the Danish Govern- and the relevance of the questions which it ment does not deem a reply to the second submits to the Court' 4 . question necessary, even though it consid- ers, in the alternative, that such reply should be positive.
24. As we know, furthermore, the Court Legal analysis retains for itself a certain power of review of the assessments made by national courts which may lead it, in an appropriate case, to find the reference inadmissible. In parti- cular, it has repeatedly held that 'it cannot give a preliminary ruling on a question submitted by a national court where it is On the jurisdiction of the Court quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its 22. As has also become clear from the purpose, [or] where the problem is hypo- debate between the participants in these thetical'. 5 Accordingly, 'if it should appear proceedings, the question arises, as an that the question raised is manifestly irre- inescapable preliminary issue, so it seems levant for the purposes of deciding the case, to me, whether the conditions for referring the Court must declare that there is no need a question for a preliminary ruling under to proceed to judgment'. 6 For that reason, Article 234 EC are met. That is to say, among others, the Court has excluded its initial consideration should be given to whether or not the Community provision (point 2 of Annex F to the Sixth Directive) 4 — Case C-36/99 Idéal Tourisme [2000] ECR I-6049, para- graph 20. Also see, inter alia, Cases C-421/97 Tarantik whose interpretation is sought is relevant to [1999] ECR 1-3633, paragraph 33, and C-415/93 Bosman [1995] ECR 1-4921, paragraph 59. resolving the dispute in the main proceed- 5 — Idéal Tourisme, cited above, paragraph 20. See also Cases ings and whether therefore it is necessary C-437/97 EKW v Wein and Co. [2000] ECR I-1157, paragraph 52; Bosman, cited above, paragraph 61; for the Court to intervene, as required C-343/90 Lourenço Dias [1992] ECR I-4673, para- under Article 234 EC, to enable the graphs 17 and 18, and C-83/91 Meilicke [1992] ECR I-4871, paragraph 25. national court to reach its decision. 6 — Lourenço Dias, cited above, paragraph 20.
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own jurisdiction where 'it is obvious that concept of liberal professions, as do the Community law cannot apply, either relevant national rules in the main proceed- directly or indirectly, to the circumstances ings, and that, while they are totally of the case'. 7 independent of each other, both sets of rules are concerned with VAT. That is why, according to the national court, 'Luxem- bourg legislation on the rates which apply to the liberal professions must be inter- preted in accordance with the provisions of Community law relating to VAT'. 25. In my opinion, in the present case it is difficult to contest the view that the Com- munity provision whose interpretation is sought is not applicable to the main proceedings, as the defendant and the Commission, as well as the other partici- pants in these proceedings, maintain. As 27. While appreciating the concern of the has been seen above, the Luxembourg Luxembourg court to found its decision in legislation in question is concerned with Community law and Community concepts, fixing a reduced VAT rate for the liberal I must say that the connection between the professions; it is not concerned at all with question discussed in the main proceedings VAT exemptions under Article 28(3)(b) and and the Community legislation of which an point 2 of Annex F to the Sixth Directive. interpretation is sought seems somewhat slender and, in any event, too slender to support the relevance of the questions referred for a preliminary ruling and thus the Court's jurisdiction to rule on them.
26. Moreover, it would appear that the national court is well aware of that and, in its order for reference, it correctly makes a distinction between the rules governing reduced rates (which in the present case 28. Above all, I must repeat once more provide the premiss for the Luxembourg that, while it appears in the same directive, legislation in question) and those relating to the Community provision of which an VAT exemptions. However, as noted above, interpretation is sought is quite distinct the national court attaches decisive impor- from those provisions which are relevant tance to the fact that 'the legislation for the purposes of the national proceed- relating to VAT transposes into Luxem- ings. Second, while it is true that under bourg law the relevant Community direc- Article 12(3) and (4) and Article 28(2)(e) tives'. In particular, it would appear to be a of the Sixth Directive Member States may decisive fact that the Community rules apply reduced rates to certain activities, it is governing VAT exemptions, although not also true that the decision to avail of that applicable to the present case, refer to the possibility falls within the competence of the Member States and that, as regards the definition of those activities, the Member 7 —Cases C-28/95 Leur-Bloem [1997] ECR I-4161, para- graph 26, and CM 30/95 Gihy ECR I-4291, paragraph 22. States are in no way obliged to refer to the
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list contained in Annex F to the Sixth 30. Even without mentioning here the Directive relating to VAT exemptions. perplexity to which that decision may give There is thus no possibility, as far as we rise, 10 in my opinion reliance on it is out of are concerned here, of establishing an the question with respect to situations such interpretative connection between the as that now under consideration. That is national provisions on the activities subject clear from the judgment in Kleinwort to a reduced rate and those of the Sixth Benson 11 in which the Court held that it Directive on operations eligible for exemp- had no jurisdiction to interpret a provision tion. It is also clear that no such connection of the Brussels Convention of 27 Septem- can be based on the general — and, I ber 1968 on jurisdiction and enforcement would say, fortuitous — fact that both of judgments in civil and commercial the national and Community provisions matters in so far as what was involved refer to VAT. was 'to enable the national court to decide on the application not of the Convention but of the national law of the Contracting State to which that court belongs'. 12 Over and above the non-binding character of the interpretation sought from the Court, that conclusion was based in particular on the fact that the provisions in question of the Convention were taken as a model and only partly reproduced in the legislation of 29. That being so, it seems to me that in the State concerned, but did not contain 'a this case that there are not even grounds for direct and unconditional renvoi to Com- hypothesising, as might perhaps be inferred munity law' and therefore had not been from a reading between the lines of the rendered applicable as such by the national order for reference, a kind of indirect legislation concerned which was outwith reference to the Community legislation (in the scope of the Convention. 13 the present case, Annex F to the Sixth Directive) in the national provisions in question. By this I mean that in the case now in question no reliance can be placed upon the well-known decision in Dzozi 8 according to which 'it does not appear either from the wording of Article 177 or from the aim of the procedure introduced by that article that the authors of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific 31. But no different conclusions are to be case where the national law of a Member drawn from the subsequent judgments in State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that 10 — See, on that point, Opinion of Advocate General Tesauro State'. 9 in Case C-346/93 Kleinwort Benson [1995] ECR I-615, points 24 and 25, and the Opinion of Advocate General Jacobs in Leur-Bloem and Giloy, cited above, points 75 to 81. 11 — Cited above. 8 —Joined Cases C-297/88 and C-197/89 [1990] ECR I-3763. 12 — Paragraph 14. 9 — Paragraph 36. 13 — Paragraphs 16 and 19.
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Leur-Bloem 1 4and Giloy 15 in which the distinction to situations governed by Court instead held that it had jurisdiction. domestic law and to situations governed In the first of those judgments it held that it by Community law, and sometimes to both 'has jurisdiction under Article 177 of the simultaneously' with the result that Treaty to interpret Community law where '[national] law requires that the domestic the situation in question is not governed provisions in question should always be directly by Community law but the applied in accordance with' 18 the relevant national legislature, in transposing the Community provisions. In such a case, the provision of a directive into domestic law, Court's jurisdiction thus derives from the has chosen to apply the same treatment to fact that national law requires that the purely internal situations and to those provisions prescribed by Community law governed by the directive, so that it has be applied to certain internal situations. aligned domestic legislation to Community law'. 16 In that case, in effect, the Court's jurisdiction is affirmed as the national legislature, required to transpose certain Community provisions into domestic law, extended the Community provisions inten- 33. The situation is quite different in the tionally and in full to purely internal present case. As we have seen: situations.
— the Luxembourg provision governing the application of a reduced VAT rate which applies to activities in the exer- cise of a liberal profession was adopted 32. In its judgment in Giloy, the Court, in autonomously by the authorities of contrast, stated that 'where, in regulating that country, and not to transpose a internal situations, domestic legislation specific Community provision into adopts the same solutions as those adopted domestic law. For the purpose of in Community law so as to provide for one defining the activities subject to a single procedure in comparable situations, reduced rate, those authorities were in it is clearly in the Community interest that, no way obliged to refer to Community in order to forestall future differences of provisions such as those set out in interpretation, provisions or concepts taken Article 28(3) and Annex F to the Sixth from Community law should be interpreted Directive; uniformly, irrespective of the circumstances in which they are to apply'. 17 More specifically, the Court affirmed its own jurisdiction where 'the provisions of domestic law in question apply without — for the purpose of determining the services subject to a reduced rate, the 14 — Cited above. 15 — Cited above. 16 — Paragraph 34. 17 — Paragraph 28. 18 — Paragraph 27.
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Luxembourg legislation did not refer, concept contained in a provision whose either directly or indirectly, to the content and aims are different.19 Community rules, which were there- fore not applicable in domestic law. Nor, for the purpose of determining the services subject to reduced rates, did the Luxembourg legislature take as a model the provision of the Sixth Direc- 35. In light of the above considerations, I tive on VAT exemption; therefore consider that it may be concluded that the questions referred by the Tribunal d'arrondissement de Luxembourg for a preliminary ruling are not relevant for the purpose of resolving the dispute in the main proceedings and that therefore the condi- tions laid down in Article 234 EC for enabling the Court to rule on the interpre- tation of the concept of liberal professions — the mere fact that the reference to the referred to in Annex F, point 2, to the Sixth liberal professions is contained both in Directive are not met. the list of activities exempted from VAT in Annex F to the Sixth Directive and in the list of activities subject to a reduced rate under Article 40 of the Luxembourg law certainly does not mean that the Luxembourg legislature intended to reproduce, even partially, the wording of a Community provi- On the substance of the questions sion.
36. However, if the Court should consider that it must declare itself competent to rule on the questions referred by the Tribunal d'arrondissement de Luxembourg, I con- sider that the reply to those questions is to be found in the arguments that I have 34. In short, it seems to me that, in the developed above which lead to the same situation just described, any ruling by the conclusions as those suggested by the Court would risk being merely hypothetical Commission. In other words, I consider or abstract inasmuch as it would be wholly that this Court should reply to the national alien to the factual and legal context of the main proceedings. On the other hand, the concept of a liberal profession referred to in 19 — See, inter alia, Cases C-338/90 Hamlin Electronics [1992] Annex F to the Sixth Directive must be ECR I-2333, paragraph 12, and C-467/93 Analog Devices defined, in accordance with well-estab- [1995] ECR I-1403, paragraph 8. In particular, the Court has repeatedly made it clear that two identical expressions lished principles of interpretation, in the inserted into different provisions that have a different ratio may be interpreted differently: see, for example, the well- light of the content and aims of the known Opinion 1/91 on the first draft EFTA Agreement in provision incorporating that concept; it which it is stated that 'the identical wording of the terms of the provisions of the agreement and the corresponding cannot be transposed automatically into Community provisions does not mean that they should necessarily be interpreted in the same way' (Opinion 1/91 national law and used to define a similar [1991] ECR I-6079, paragraph 14).
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court that Article 28(3) of and Annex F to case therefore the definition of the latter the Sixth Directive are concerned with operations, including the concept of 'liberal operations which are eligible for VAT profession', is a question which in this case exemption and not those, such as the ones is not relevant for the purposes of Com- in point the main proceedings, which are munity law, but falls within the competence subject to a reduced VAT rate and in that of the Member States.
Conclusion
37. In light of the above considerations, I therefore propose that the Court declare that it has no jurisdiction to rule on the questions referred by the Tribunal d'arrondissement de Luxembourg. In any event, Article 28(3) of and Annex F to the Sixth Directive are concerned with operations which are eligible for VAT exemption and not with those, such as the ones in point the main proceedings, which are subject to a reduced VAT rate; as a result, the definition of the latter operations, including the concept of 'liberal profession', is a question which in this case is not relevant for the purposes of Community law, but falls within the competence of the Member States.
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