Europees recht – Ursala Becker

Facts

The Finanzgericht Munster referred to the Court of Justice a preliminary question concerning a Sixth Council Directive (77/388/EEC) on the harmonization of the laws of the Member States relating to turnover taxes.

The reason for this question was that a dispute had arisen between the German tax authorities and Ursula Becker. Ursula Becker was a self-employed credit negotiator and relied on the Sixth Council Directive, which stated that the conciliation on credits had to be exempted from value-added tax.

She applied for exemption from tax in respect of her transactions, claiming that Article 13 b (d) 1 compelled the Member States to exempt from value-added tax “the granting and the negotiation of credit” and that that directive had been part of national law since January 1st, 1979.
The Finanzamt rejected her claim and requested her to pay the turnover tax, because the directive had not yet been implemented at the time of the events (March – June 1979).

The Finanzgericht referred to the Court the following question: “Has the provision contained in Article 13b (d) 1 of the Sixth Council Directive of 17 May 1977 on the harmonization of laws of the Member States relating to turnover taxes – Common system of value- added tax: uniform basis of assessment, concerning the exemption from turnover tax of transactions consisting of negotiation of credit, been directly applicable in the Federal Republic of Germany as from January 1st, 1979?”

Court of Justice

Whilst the directive confers upon the Member States discretion as regards to implementing certain of its provisions, individuals may not for that reason be denied the right to rely on any provisions which owing to their particular subject-matter are capable of being severed from the general body of provisions and applied separately. Member States may not deny any effect to those provisions which in view of their subject- matter may be relied upon to good purpose before a court even though the directive as a whole has not been implemented.

In other words, a Member State may not rely, as against a taxpayer who is able to show that his tax position actually falls within one of the categories of exemption laid down in the directive, upon its failure to adopt the very provisions which are intended to facilitate the application of that exemption. After January 1st, 1979, a credit negotiator could rely on the exemption from turnover tax, even though the directive had not yet been implemented. A requirement is that the credit negotiator did not pass the value-added tax on to its customers.