Opinion of Advocate General

Mr President,

Members of the Court,

1. The Gerechtshof te Amsterdam has thought it necessary, in a case pending before it, to obtain a decision on whether a given taxable activity is covered by Article 26 of the Council's Sixth Directive on VAT, which lays down a special system for travel agents. In that connexion it has referred two questions to the Court for a preliminary ruling.

2. The background to the case is a dispute between the Netherlands tax authorities and a Netherlands tour operator (hereinafter Van Ginkel). The dispute relates to that part of Van Ginkel's operations which consists in arranging so-called motoring holidays. For such holidays the traveller himself arranges for transport to the holiday destination, where Van Ginkel makes holiday accommodation available. The dispute concerns only the case in which the holiday accommodation is owned by a third party and is situated in the Netherlands. The traveller purchases the service, that is, a short-term stay in the holiday accommodation, direct from Van Ginkel or through another travel agent. Van Ginkel pays the owner of the house and charges in that connexion a commission of 20% of the rent. Van Ginkel paid VAT on the amount of the commission under the impression that the commission was the correct taxable amount. The tax authority demanded a supplementary payment because, in its view, the taxable amount was the full letting price.

3. The special system for travel agents applies, in accordance with Article 26 of the directive, when certain conditions are met and involves on a number of points exceptions to the general rules of the directive on the calculation and levying of the VAT.

4. The Gerechtshof te Amsterdam, in its judgment referring the questions to the Court, took as its basis the fact that Van Ginkel trades as a tour operators and operates travel agencies and that the company therefore meets that condition for the application of Article 26(1). The Gerechtshof also accepted that Van Ginkel deals with customers in its own name within the meaning of Article 26 and that the company did not act as an intermediary. However, the Gerechtshof is in doubt on a single point as to whether the conditions for the application of Article 26 are met in this specific case. On that point it states:

5. The Netherlands Government claims that there are reasonable grounds for a negative answer to that question. It observes inter alia that transport represents a characteristic feature of a journey. It refers also to the fact that Article 26 must pre-suppose that the service sold to the traveller consists of a group of services. In that connexion the government refers to the fact that Article 26 speaks logically of the provision of services and must therefore pre-suppose that the travel agent supplies more than one service. The government refers also to paragraph (2), according to which transactions performed by the travel agent are to be treated as a single service.

6. Van Ginkel, the German and United Kingdom Governments and the Commission all agree that Article 26 does not pre-suppose that the services sold by the travel agent include transport. They also state that Article 26 does not involve a supposition that the service sold covers a group of services.

7. In my view there can be no doubt that the answer to the question raised must be that the letting by travel agents of holiday accommodation owned by third parties to travellers providing their own transport to and from the destination are also covered by Article 26.

8. These reasons are in my view sufficient to establish that the answer to the question referred to the Court must be that Article 26 must also apply even where the customer himself provides transport to the holiday accommodation and I do not therefore think it necessary to go into the other arguments put forward in favour of that interpretation and set out in the report for the hearing.

9. The Gerechtshof has raised a further question worded as follows:

Conclusion

10. I therefore propose that the Court of Justice reply as follows to the questions referred to it by the Gerechtshof te Amsterdam:

1 Original language: Dutch.

2 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 (OJ 1977 L 145, p. 1).

3 On 15 September 1992 I delivered an Opinion in Case C-74/91 Commission v Germany, the subject of which was Article 26(3) of the Sixth Directive on VAT. This case relates particularly to the provisions of Article 26(1) and (2).

4 That committee was set up in pursuance of Article 29 of the directive. It consists of representatives of the Member States and the Commission. Its opinions are not binding.