ECJ It would be incompatible with the binding effect which article 189 of the EEC treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by it being relied upon by persons concerned. Particularly in cases in which the community authorities have, by means of a directive, placed member states under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of community law. Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the state.
Whilst the sixth council directive 77/388 on the harmonization of the laws of the member states relating to turnover taxes undoubtedly confers upon the member states varying degrees of discretion as regards 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. This minimum guarantee for persons adversely affected by the failure to implement the directive is a consequence of the binding nature of the obligation imposed on the member states by the third paragraph of article 189 of the eec treaty. That obligation would be rendered totally ineffectual if the member states were permitted to annul, as the result of their inactivity, even those effects which certain provisions of a directive are capable of producing by virtue of their subject-matter.
Article 13 c of directive 77/388 does not in any way confer upon the member states the right to place conditions on or to restrict in any manner whatsoever the exemptions provided for by part b. It merely reserves the right to the member states to allow, to a greater or lesser degree, persons entitled to those exemptions to opt for taxation themselves, if they consider that it is in their interest to do so.
The scheme of directive 77/388 is such that on the one hand, by availing themselves of an exemption, persons entitled thereto necessarily waive the right to claim a deduction in respect of input tax and on the other hand, having been exempted from the tax, they are unable to pass on any charge whatsoever to the person following them in the chain of supply, with the result that the rights of third parties in principle cannot be affected.
As from 1 january 1979 it was possible for the provision concerning the exemption from turnover tax of transactions consisting of the negotiation of credit contained in article 13b(d) 1 of directive 77/388 to be relied upon, in the absence of the implementation of that directive, by a credit negotiator where he had refrained from passing that tax on to persons following him in the chain of supply, and the state could not claim, as against him, that it had failed to implement the directive.
Citations:
C-8/81, R-8/81, [1982] EUECJ R-8/81, [1982] ECR 53, [1982] 1 CMLR 499
Links:
Jurisdiction:
European
Cited by:
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Cited – Doughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.
Constitutional
Updated: 26 July 2022; Ref: scu.215034
