Report for the Hearing in Case C-347/90

I — Facts and procedure

A — The relevant legal provisions 0

1. National legislation

1. The Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati et dei Procuratori legali (Lawyers' National Provident Fund, hereinafter the Provident Fund) was created by Law No 6 of 8 January 1952 (Gazzetta Ufficiale della Repubblica Italiana — GURI — No 16 of 19 January 1952). AU avvocati and procuratori legali (hereinafter lawyers) in Italy are required to be members.

2. The contributions to the Provident Fund and the benefits that it provides are governed by Law No 576 of 20 September 1980 (Reform of the lawyers' provident scheme, GURI No 266 of 27 September 1980).

2. Community provisions

3. Article 33 of the Sixth Council Directive 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 (77/388/EEC, OJ L 145, p. 1, hereinafter the Sixth Directive) states:

B — The proceedings in the national court

4. Aldo Bozzi, the plaintiff in the proceedings before the national court, is an avvocato of the Milan Bar. Mr Bozzi brought an action against the Provident Fund before the Milan Magistrates' Court in order to obtain repayment of the sum of LIT 2280390 which he paid the defendant by way of supplementary contributions in accordance with Article 11 of Law No 576/1980.

5. The Milan Magistrate's Court considered that the proceedings involved a question of interpretation of Community law and, by order of 14 December 1989, decided to stay the proceedings pending a preliminary ruling by the Court of Justice on the following question:

6. The order for reference was received at the Court Registry on 28 November 1990.

7. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mr Bozzi, the plaintiff in the main proceedings, of the Milan Bar, representing himself; by the Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e dei Procuratori legali, the defendant in the main proceedings, represented by V. Perrone, of the Milan Bar, and by M. de Stefano, of the Rome Bar; by the Italian Government, represented by F. Favara, acting as Agent; and by the Commission of the European Communities, represented by J. F. Bühl, Legal Adviser, and by E. Traversa, a member of its Legal Service, acting as Agents.

II — Written observations submitted to the Court

1. The plaintiff in the main proceedings observes at the outset that the Court of Justice has interpreted Article 33 of the Sixth Directive as meaning that as from the introduction of the common system of VAT Member States are no longer entitled to impose on the supply of goods, the provision of services or imports liable to VAT, other taxes, duties or charges which can be characterized as turnover taxes (judgment in Case 252/86 Bergandi v Directeur Générale [1988] ECR 1343). Therefore Article 33 allows a Member State to introduce or maintain taxes, duties or charges only if they are not in the nature of turnover taxes.

2. The Provident Fund, the defendant in the main proceedings, first observes that the present dispute was brought before the Milan Magistrate's Court by Mr Bozzi who is contesting the lawfulness of the supplementary contribution which he has already paid to the Provident Fund. The action is therefore not brought by a client who has received services and is refusing to pay the supplementary provident contribution or claiming repayment from the lawyer who provided the services. The Provident Fund has no direct or indirect relationship with the lawyer's client.

3. The Italian Government first observes that the supplementary contribution is a social contribution paid into a provident fund whose aims are similar to those of an insurance company, and it is not a tax or any form of contribution for the benefit of the State or local authorities. Consequendy, the expression taxes, duties or charges used in Article 33 of the Sixth Directive does not apply to the supplementary contribution in question.

4. The Commission expounds the relevant national and Community legislative provisions and the case-law of the Court of Justice which, in the Commission's view, apply to the present case and considers that in order to assess whether the prohibition laid down in Article 33 of the Sixth Directive applies to the supplementary contribution at issue in the present case, it is essential to determine whether or not that contribution is in the nature of a turnover tax within the meaning of the Sixth Directive.

1 Language of the case: Italian.