Case C-33/11

A Oy

(Reference for a preliminary ruling from the Korkein hallinto-oikeus)

‛Sixth Directive — Exemptions — Article 15(6) — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Supply of aircraft to an operator who makes them available to such an undertaking — Concept of ‘operating for reward on international routes’ — Charter flights’

Summary of the Judgment

1. European Union law — Interpretation — Texts in several languages — Consideration of different language versions

2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Independent concepts of European Union law

   (Council Directive 77/388)

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Scope

   (Council Directive 77/388)

4. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Concept of ‘operating for reward on international routes’ — International charter flights to meet demand from undertakings and private persons — Included

   (Council Directive 77/388/EEC, Art. 15(6))

5. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Scope — Acquisition of an aircraft by an operator for the purposes of exclusive use thereof by that airline — Included — Passing on of the charge for the use of the aircraft to the purchaser’s shareholder, who uses that aircraft chiefly for his own business and/or private purposes, with the airline having the opportunity to use it for other flights — No effect — Limits — Prohibition on abusive practices

   (Council Directive 77/388/EEC, Art. 15(6))

1.  See the text of the decision.

   (see para. 24)

2.  See the text of the decision.

   (see paras 31, 47)

3.  See the text of the decision.

   (see paras 32, 33, 48)

4.  The wording ‘operating for reward on international routes’ within the meaning of Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as encompassing also international charter flights to meet demand from undertakings and private persons.

   (see para. 35, operative part 1)

5.  Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as meaning that the exemption for which it provides also applies to the supply of an aircraft to an operator who is not itself an airline operating for reward chiefly on international routes within the meaning of that provision but which acquires that aircraft for the purposes of exclusive use thereof by such an undertaking.

   The fact that the purchaser of the aircraft passes on the charge corresponding to its use to an individual who is its shareholder and who uses that aircraft essentially for his own business and/or private purposes, with the airline also having the opportunity to use it for other flights, are not such as to affect this interpretation.

   It is, however, for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of European Union law is not undermined, whether action constituting such an abusive practice has taken place in the case before it. The application of the European Union rules cannot be extended to cover abusive practices by economic operators, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by European Union law.

   (see paras 57, 62, 65, 66, operative part 2 and 3)

Case C-33/11

A Oy

(Reference for a preliminary ruling from the Korkein hallinto-oikeus)

‛Sixth Directive — Exemptions — Article 15(6) — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Supply of aircraft to an operator who makes them available to such an undertaking — Concept of ‘operating for reward on international routes’ — Charter flights’

Summary of the Judgment

1. European Union law — Interpretation — Texts in several languages — Consideration of different language versions

2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Independent concepts of European Union law

   (Council Directive 77/388)

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Scope

   (Council Directive 77/388)

4. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Concept of ‘operating for reward on international routes’ — International charter flights to meet demand from undertakings and private persons — Included

   (Council Directive 77/388/EEC, Art. 15(6))

5. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption for the supply of aircraft used by airlines operating for reward chiefly on international routes — Scope — Acquisition of an aircraft by an operator for the purposes of exclusive use thereof by that airline — Included — Passing on of the charge for the use of the aircraft to the purchaser’s shareholder, who uses that aircraft chiefly for his own business and/or private purposes, with the airline having the opportunity to use it for other flights — No effect — Limits — Prohibition on abusive practices

   (Council Directive 77/388/EEC, Art. 15(6))

1.  See the text of the decision.

   (see para. 24)

2.  See the text of the decision.

   (see paras 31, 47)

3.  See the text of the decision.

   (see paras 32, 33, 48)

4.  The wording ‘operating for reward on international routes’ within the meaning of Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as encompassing also international charter flights to meet demand from undertakings and private persons.

   (see para. 35, operative part 1)

5.  Article 15(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as meaning that the exemption for which it provides also applies to the supply of an aircraft to an operator who is not itself an airline operating for reward chiefly on international routes within the meaning of that provision but which acquires that aircraft for the purposes of exclusive use thereof by such an undertaking.

   The fact that the purchaser of the aircraft passes on the charge corresponding to its use to an individual who is its shareholder and who uses that aircraft essentially for his own business and/or private purposes, with the airline also having the opportunity to use it for other flights, are not such as to affect this interpretation.

   It is, however, for the national court to verify in accordance with the rules of evidence of national law, provided that the effectiveness of European Union law is not undermined, whether action constituting such an abusive practice has taken place in the case before it. The application of the European Union rules cannot be extended to cover abusive practices by economic operators, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages provided for by European Union law.

   (see paras 57, 62, 65, 66, operative part 2 and 3)