Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. The questions referred to the Court for a preliminary ruling by the Tribunal Superior de Justicia de Andalucía concern the interpretation of Article 4(1), (4) and (5) of the Sixth Council Directive (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 (which I shall hereinafter refer to as the Sixth Directive) The national court asks, in particular, whether under the provisions of the Sixth Directive the activities of a tax collector must be regarded as dependent or independent, and if independent, whether they must in any event be exempted from value added tax since they are activities engaged in as a public authority.
2. A recent reform of the Spanish tax system, in essence, gave responsibility for the collection of taxes — both State taxes and those of autonomous bodies — to the State finance authorities. As a consequence, the tax-collection activities entrusted to third parties were abolished. However, local authorities, including communes, may assume responsibility for the collection of certain taxes and appoint collectors and enforcement agents for that purpose.
3. When the tax collectors of the first and second zones of the Commune of Seville calculated the amount of the collection premium, they added on VAT. The Commune contested the passing on of VAT before the Tribunal Económico-Administrativo Provincial, Seville, which, having regard to the administrative instructions laid down by the Directorate-General of Taxes, dismissed the action on the ground that tax collectors were to be regarded as independent professionals since they engaged in their activities regularly and independently, and for valuable consideration; they were therefore taxable persons for the purposes of VAT.
4. With its first question, the national court seeks an interpretation of Article 4(1) and (4) of the Sixth Directive on VAT in order to determine whether the activities of tax collectors are carried out independently and are therefore chargeable to tax.
5. In my view, tax collectors are certainly not employed persons or bound to the tax authorities by a contract of employment in the narrow sense. Therefore, in order to establish whether an activity of the kind described above can be considered to be exempt from VAT, it is necessary to determine whether the relationship between the tax collector and the tax authorities takes the form of a legal tie creating the relationship of employer and employee as regards working conditions, remuneration and liability.
6. With regard to working conditions, the first thing to be determined is whether the worker in question forms a part of the employer's organization — in the present case the communal administration — or whether he is free to organize his activity independently, and to what extent. The freedom to organize one's own work independently (to choose colleagues, the structures necessary for the performance of one's tasks and one's working hours), in conjunction with the fact of not forming part of the organization of an undertaking or an administrative authority, are characteristic features of an activity which is carried out independently.
7. By its second question, the national court asks whether the activities carried out by a tax collector are to be regarded as exempt from VAT pursuant to the first subparagraph of Article 4(5) of the Sixth Directive since they are activities engaged in as a public authority. Under that provision, bodies governed by public law are excluded from tax in respect of the activities in which they engage as public authorities.
8. In the light of the foregoing considerations, I therefore propose that the Court should give the following reply to the questions referred by the Tribunal Superior de Justicia de Andalucía:
1 Original language: Iulian.
2 OJ L 145, p. 1.
3 Royal Decree No 1327 of 13 June 1986 (BOE of 2 July 1986).
4 Royal Decree No 1451 of 27 November 1987 (BOE of 28 November 1987).
5 Article 193 of the amended law on the rules governing local authorities, Royal Decree No 781 of 18 April 1986 (BOE of 22 and 23 April 1986).
6 Decree No 3286 of 19 December 1969 (BO del Mo Hac. of 30 December 1969).
7 Judgment in Case 235/85 Commission v Netherlands [1987] ECR 1471, paragraph 14.
8 See in this regard the judgment in Case 235/85, op cit., paragraph 14.
9 Sec the judgments in Case 107/84 Commission v Germany [1985] ECR 2655, paragraph 11 ; Case 235/85, cited above, paragraph 21; and Joined Cases 231/87 and 129/88 Comune de Carpando Piacentino and Others [1989] ECR 3233, paragraph 12.
10 Judgment in Case 235/85, cited above, paragraph 21.