Important legal notice

61990C0035

European Court reports 1991 Page I-05073

Opinion of the Advocate-General

Mr President, Members of the Court, 1. This application is for a declaration that, by exempting from value added tax the professional services, including those whose consideration consists in copyright, provided by figurative artists, writers, literary contributors, newspaper and magazine illustrators and photographers, musical composers, playwrights and persons responsible for the plot, adaptation, script or dialogue of audio-visual works, the Kingdom of Spain has infringed Article 2(1) of the Sixth Council Directive (No 77/388/EEC) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (Official Journal 1977 L 145, p. 1, hereinafter referred to as "the directive") and has therefore failed to fulfil its obligations under the Treaty.

2. I shall remind you briefly of certain circumstances in the present case which are important for what I have to say and as regards the rest refer to the Report for the Hearing. Article 7(2) of the Spanish Law No 30 of 2 August 1985 which introduced the scheme of value added tax made the aforementioned professional services liable to VAT at the reduced rate of 6%. However, two years later a law on intellectual property (Law No 22 of 11 November 1987) exempted those services from VAT. That exemption, which the Commission considers to be contrary to the principle in Article 2(1) of the directive that VAT should have general application, is the subject of the present action.

4. The Commission rejects that view for two reasons. In the first place, it considers that in view of the derogating nature of the rule, in the absence of a specific provision in the Act of Accession, Article 28(3) cannot apply to States which joined the Community subsequently. In its view, that is confirmed a contrario by the fact that in the case of Portugal the right to exempt from VAT certain transactions referred to in Article 28(3)(b) is expressly mentioned in the Act of Accession. On the other hand, the Act of Accession of Spain contains no reference to the provision in question so that the possibility of relying on Article 28(3)(b) for the purposes of justifying the exemptions in question must be regarded as excluded. In the second place the Commission argues that even assuming that Spain may rely on the derogation in question, in any event the exemption which is the subject of the present proceedings falls outside the scope of that provision and is not justified by it. According to the Commission, the provision, as is clearly apparent from its terms, allows a Member State only to "continue to exempt" specific activities. It thus allows only an existing exemption to be continued, but once VAT has been applied to specific services it prohibits their being subsequently granted exemption. In the present case it is common ground that in Spain the activities in question were subjected to the general scheme of VAT pursuant to the Sixth Directive by Law No 30 of 2 August 1985 until the entry into force of Law No 22 of 11 November 1987, that is, for more than two years. The exemption provided for by the aforementioned 1987 law thus obviously constitutes a new exemption which is quite unjustified by Article 28(3)(b).

6. In view of those observations, I think it is possible to grant the present application without it being necessary to go further into the other argument put forward by the Commission that since the Act of Accession is silent on the subject, Spain may not rely on Article 28(3)(b). Moreover, that argument does not seem to be convincing since in the absence of specific limits or reservations the State which joins accepts all the rights and obligations resulting from the acquis communautaire which as regards the Sixth Directive necessarily includes the provisions of Article 28.

(*) Original language: Italian.