Keywords
Summary

Keywords

1. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Supply of services for consideration - Definition - Provision of roads infrastructure on payment of a toll - Whether included

(Council Directive 77/388, Art. 2, para. 1)

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Taxable persons - Bodies governed by public law - Activities in the exercise of public authority not taxable - Definition

(Council Directive 77/388, Art. 4(5))

3. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for the letting of immovable property - Definition - Provision of roads infrastructure on payment of a toll - Whether excluded

(Council Directive 77/388, Art. 13B(b))

4. Own resources of the European Community - Resources accruing from value added tax - Arrangements for collection - Corrections to the annual statement - Time-limit - Initiation by the Commission of the procedure for failure to fulfil obligations seeking the retrospective payment of such resources - Application by analogy - Justified by considerations of legal certainty

(Council Regulation No 1553/89, Art. 9(2))

Summary

1. The provision of roads infrastructure on payment of a toll constitutes a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes. Use of the road depends on payment of a toll, the amount of which varies inter alia according to the category of vehicle used and the distance covered. There is, therefore, a direct and necessary link between the service provided and the financial consideration received.

( see paras 45-46 )

2. In order for the exemption from value added tax for bodies governed by public law, provided for by the first subparagraph of Article 4(5) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, to apply as regards activities or transactions in which they engage as public authorities, two conditions must be fulfilled: the activities must be carried out by a body governed by public law and they must be carried out by that body acting as a public authority. As regards the latter condition, activities pursued as public authorities are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private traders.

( see paras 49-50 )

3. Leaving aside the specific cases expressly listed in Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, the term letting of immovable property must be construed strictly since it constitutes an exception to the general VAT rules contained in that directive. Accordingly, that term cannot be considered to cover contracts, such as those for the provision of roads infrastructure on payment of a toll, in which the parties have not agreed on any duration for the right of enjoyment of the immovable property, which is an essential element of a contract to let.

( see paras 67-68 )

4. Despite the absence of a limitation period for the recovery of VAT in either the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes or in the legislation relating to the Communities' own resources, the fundamental requirement of legal certainty may have the effect of preventing the Commission from indefinitely delaying, in the course of a procedure for failure to fulfil obligations seeking the retrospective payment of own resources, a decision to bring proceedings. Article 9(1) of Regulation No 1553/89 on the definitive uniform arrangements for the collection of own resources accruing from value added tax does not refer to the situation in which the procedure for failure to fulfil obligations under Article 169 of the Treaty (now Article 226 EC) has been initiated, but demonstrates none the less the requirements pertaining to legal certainty in budgetary matters by ruling out any correction to the annual statement after four budgetary years have elapsed. It is clear that the same considerations of legal certainty justify the application by analogy of the rule laid down by that provision where the Commission decides to initiate the procedure for failure to fulfil obligations in order to seek retrospective payment of own resources accruing from VAT.

( see paras 80-81, 84-85 )