Keywords
Summary

Keywords

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1. Actions against Member States for failure to fulfil obligations ° Disregard of obligations deriving from a directive ° Pleas in defence ° Allegation that the directive is unlawful ° Inadmissibility ° Limits ° Non-existent measure

(EEC Treaty, Arts 169, 170, 173 and 175)

2. Tax provisions ° Harmonization of laws ° Turnover tax ° Common system of value added tax ° Special scheme for travel agents ° National rules providing for exemptions not limited to transactions performed outside the Community ° Not permissible

(Council Directive 77/388, Art. 26)

Summary

1. The system of remedies set up by the Treaty distinguishes between the remedies provided for in Articles 169 and 170, which permit a declaration that a Member State has failed to fulfil its obligations, and those contained in Articles 173 and 175, which permit judicial review of the lawfulness of measures adopted by the Community institutions, or the failure to adopt such measures. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of a directive as a defence in an action for a declaration that it has failed to fulfil its obligations under it.

The position could be different only if the measure in question contained such particularly serious and manifest defects that it could be deemed non-existent.

2. A Member State which applies to travel agents' margins a value added tax scheme which, for certain transactions performed by third parties for the agent, provides for exemptions which, contrary to Article 26 of the Sixth Directive, are not limited to transactions performed outside the Community but also relate to all international air or sea transport operations or those carried out exclusively outside the national tax territory, is in breach of its obligations under the Treaty.

Although exemptions could be maintained by a Member State under the transitional measures provided for in Article 28 of the directive, provided that the conditions laid down by that article were satisfied, they cannot be maintained by a Member State which has not, for the various transactions performed by travel agents, maintained the general value added tax scheme but, on the contrary, has adopted a special scheme based on the rules laid down by Article 26 of the directive.