Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

The Ferrovia del Renon in Bolzano and the Mazzalai firm in Trento entered into an agreement in 1964 pursuant to an invitation to tender for the construction of a suspension cable railway near Bolzano. The construction work was completed in 1967; moreover, some of the instalments were paid until completion. Differences later arose concerning inter alia the total costs and the outstanding balance thereof. The dispute was settled by an enforceable decision of the Appeals Court in Trento of 10 December 1972, in which the outstanding balance was quantified. This amount was then paid after 31 December 1972.

This date is important, because on 1 January 1973, as provided for in the fourth directive 71/401/EEC of 20 December 1971 (OJ 1971, L 283, p. 41), the system of value-added tax was introduced in Italy. This was effected by virtue of the enabling Law No 825 of 9 October 1971 and the Decree of the President No 633 of 26 October 1972. The latter provides that value-added tax is chargeable on the supply of goods and services after 31 December 1972 (Article 76). According to Article 6 of the decree services are deemed to be provided at the moment when the consideration is paid.

Under these provisions Mazzalai had to pay value-added tax at the rate of 12 % on the balance received from Ferrovia del Renon in 1973. It demanded payment of a corresponding amount from Ferrovia del Renon calculated from June 1973. Ferrovia del Renon refused payment; it was only willing to pay turnover tax at the rate of 4 % under the system previously in force.

In the legal proceedings which Mazzalai thereupon brought, Ferrovia del Renon relied on the second Council Directive of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes, and in particular on Article 6 (4) thereof which provides that The chargeable event shall occur at the moment when the service is provided'. It pointed out that Article 5 of the Italian enabling Law of 9 October 1971 already mentioned refers to the directive and states that the rules on value-added tax must be compatible with Community law. However Presidential Decree No 633 of 26 October 1972 is not compatible with it, because under Article 6 thereof services are to be treated as being provided at the moment when the consideration is paid.

In view of these arguments the court seised of the dispute stayed the proceedings and by order of 30 June 1975, which reached the Court of Justice on 24 October 1975, referred the following question to it under Article 177 of the EEC Treaty for a preliminary ruling:

I —. Before I can examine this question I must make some preliminary observations. They are prompted by the submissions of some of the parties to the proceedings relating to the admissibility of the request for a preliminary ruling.

1. The defendant in the main action submits that under Article 90 of Decree No 633 liabilities arising out of relations which came into being before 1 January 1973 are not affected. In its view the entry into force of a new tax law cannot change liabilities which have already arisen. Accordingly the inference to be drawn from Articles 6 and 76 of Decree No 633 is that it cannot be applied to services which were performed before its entry into force.

2. During the proceedings it was also argued that the kind of taxation to be applied was laid down for the national court in this case by a national law. The court is said to be bound to apply this law. It cannot disregard it, even should it take the view that this law is incompatible with a Community directive, because Community measures of this kind cannot by virtue of their legal nature supersede national legal provisions which diverge from them. It is therefore not relevant to the main action to know the meaning and scope of the second directive on value-added tax.

3. A further objection which must also be dealt with as a preliminary point was raised by the Italian Government. It submitted that a national court can only ask for those Community measures to be interpreted, which are directly applicable and which it therefore has to apply. In the view of the Italian Government this principle does not apply to the relevant Council directive. It was issued pursuant to Articles 99 and 100 of the EEC Treaty and its sole purpose is the harmonization of the laws of Member States. It is moreover clear that Article 6 (4) of the second Council directive does not impose any obligation on Member States; it requires in any case supplementary legislation and cannot therefore be regarded as sufficiendy clear and precise in the sense which emerges from the relevant case-law. Consequently the Court should confine itself to finding that the directive is not directly applicable. Further, there is no need for the Court to examine the contents of the directive.

4. Finally there are still two questions to be examined as preliminary points which relate to the interpretation of the directive if not to the problem raised by the court making the reference. I am dealing with them in the present context, because they also refer to the relevance of the question referred to the decision in the main action.

II —. After making these necessary preliminary observations on matters concerning the relevance of the question referred to the decision in the main action, I now turn my attention to the substance of the request for a preliminary ruling. This makes it necessary to consider whether Article 6 (4) of the directive on value-added tax is to be interpreted as meaning that in the case of works contracts the chargeable event occurs at the moment of issue of the invoice or of the receipt of the consideration, even if these events follow the provision of the service.

III —. The question of the Tribunale di Trento should therefore be answered as follows:

1 Translated from the German.