EN

Official Journal of the European Union

C 204/15

(Case C-193/11)

2011/C 204/28

Language of the case: Polish

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

—declare that, by applying the special VAT scheme for travel agents in cases involving the sale of travel services to persons who are not travellers, as provided for in Article 119(3) of the Law of 11 March 2004 on the taxation of goods and services (the Polish Law on VAT), the Republic of Poland has failed to comply with its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

—order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the Commission’s view, the application by the Republic of Poland, on the basis of Article 119 of the Polish Law on VAT, of the special VAT scheme for travel agents also to cases in which the recipient of travel services is not a traveller is incompatible with Articles 306 to 310 of Directive 2006/112/EC as currently in force.

In support of its contention, the Commission submits that Articles 306 to 310 of Directive 2006/112/EC correspond to the wording previously set out in Article 26 of the Sixth VAT Directive. Five out of the six official language versions at that time (that is to say, all of the language versions except for the English) were entirely consistent and consistently used the term ‘traveller’ throughout the text of Article 26. The use of the term ‘customer’ [‘nabywca’] is found solely in a number of language versions of Article 306 of Directive 2006/112/EC which are based on the English-language version. In those cases, however, the further provisions relating to the special scheme (Articles 307 to 310) use the notion of ‘traveller’, which indicates that the notion of ‘customer’ was wrongly used in Article 306.

Furthermore, even if it were to be agreed that the purpose of the special VAT scheme for travel agents, that is to say, the simplification of account settling, would be more effectively achieved by an interpretation which took account of customers, it appears from the Court’s case-law that application of that scheme based exclusively on a purposive construction, contrary to the unequivocal decision of the European Union legislature which follows from the content of the provisions currently in force, cannot be supported.

(1) OJ 2006 L 347, p. 1.