Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations - Pre-litigation procedure - Subject-matter - Reasoned opinion - Content - Delimitation of the subject-matter of the action

(Art. 226 EC)

2. Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Exemptions provided for by the Sixth Directive - Exemption for the supply of services closely related to university education - Research activities in State universities carried out for consideration - Excluded

(Council Directive 77/388, Articles 2 and 13(A)(1)(i))

Summary

$$1. In infringement proceedings, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the complaints made by the Commission.

The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter.

Accordingly, the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision. Therefore, the application must be based on the same grounds and pleas as the reasoned opinion which must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty.

By invoking for the first time in the application an argument in response to a ground of defence raised also for the first time by the defendant Member State in response to the reasoned opinion, the Commission does not amend either the definition or the basis of the alleged infringement.

( see paras 16-19, 24 )

2. National legislation exempting transactions from value added tax, which is neither covered by an exemption laid down in the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, nor authorised in accordance with an exception provided for by that directive, constitutes an infringement of Article 2 thereof. Therefore a Member State which exempts from value added tax the research activities carried out for consideration by public-sector high-education establishments fails to fulfil its obligations under Article 2 of the Sixth Directive.

Those activities cannot be regarded as a supply of services closely related to university education for the purposes of Article 13(A)(1)(i) of the Sixth Directive.

Although that concept does not require an especially strict interpretation, since the exemption of that supply of services is designed to ensure that access to the benefits of such education is not hindered by the increased costs of providing it that would follow if it, or the supply of services and of goods closely related to it, were subject to value added tax the fact of subjecting research projects carried out by State universities for consideration to value added tax does not have the effect of increasing the cost of university education.

Moreover, although the undertaking of such projects may be regarded as of great assistance to university education, it is not essential to achieve its purpose.

( see paras 40, 47-49, 52, operative part )