25.6.2011

EN

Official Journal of the European Union

C 186/16

(Case C-189/11)

2011/C 186/27

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: L. Lozano Palacios and C. Soulay, Agents)

Defendant: Kingdom of Spain

Form of order sought

—Declare that

—by applying the special scheme for travel agents in cases where travel services have been sold to a person other than the traveller;

—by excluding from that special scheme sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents;

—by authorising travel agents, in certain circumstances, to charge in the invoice an overall amount that is not related to the actual VAT charged to the customer, and by authorising the latter, where he is a taxable person, to deduct this overall amount from the VAT payable; and

—by authorising travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period;

the Kingdom of Spain has failed to fulfil its obligations under Articles 73, 168, 169, 226 and 306 to 310 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax,

—order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission considers that the application by the Kingdom of Spain of the special scheme for travel agents, insofar as it is not limited to services provided to travellers, as the directive prescribes, but is extended to operations carried out between travel agents, infringes the provisions of the legislation concerning VAT.

Furthermore, the exclusion from that special scheme of sales to the public, by retail agents acting in their own name, of trips organised by wholesale agents is not compatible with the directive either, as such activities, without any doubt in the opinion of the Commission, fall within the activities covered by the special scheme.

Likewise, the Commission considers that the Spanish rules authorising travel agents, without any basis in that directive, to charge in the invoice an overall VAT amount that is not related to the actual VAT charged to the customer, or that authorise the latter, where he is a taxable person, to deduct this overall amount from the VAT payable, or that allow travel agencies, insofar as they benefit from the special scheme, to make an overall determination of the basis of assessment of the tax for each tax period, infringe the VAT directive.

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