Opinion of Advocate General Van Gerven delivered on 16 March 1994

1 Original language: Dutch.

2 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 valued added tax: uniform basis of assessment, OJ 1977 L 145, p. 1.

3 The national court states in its provisional judgment that (i) until 8 August 1988 the gift was sent to the customer when she had paid for the order or had made the first payment; (ii) from 8 August 1988 to 22 February 1989 the gift was sent to her when Empire Stores had received the order; and (iii) after 23 February 1989 the gift was sent to the customer after she had made her first payment.

4 See inter alia the judgment in Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 34.

5 Judgment in Case 89/81 Hong Kong Trade Development Council [1982] ECR 1277.

6 Case 102/86 Apple and Pear Development Council [19881ECR 1443.

7 Case 154/80 Coöperatieve Aardappelenbewaarplaats [19811 ECR 445.

8 Judgment in Case 230/87 Naturally Yours Cosmetics [19881ECR 6365.

9 Second Council Directive (67/228/EEC) of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax (OJ, English Special Edition 1967, p. 6).

10 This does not detract from its value as a precedent for the present case: as the Court held in Apple and Pear Development Council (cited above, at point 10) and Naturally Yours Cosmetics (cited above, at point 10), the case-law concerning the Second VAT Directive may, in view of the Community aims which underlie both it and the Sixth Directive, provide guidance for the interpretation of the latter directive.

11 Judgment in Case 89/81 Hong Kong Trade [1982] ECR 1277, paragraph 10. See also the recent judgment in Tolsma(judgment of 3 March 1994 in Case C-16/93 [1994] ECR I-743, paragraph 12), where the Court held, with respect to supplies of services, that they were only made for consideration if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (paragraph 14).

12 Hong Kong Trade judgment, paragraph 11.

13 The Court is necessarily obliged to base its answers to questions such as the present on the findings of fact made by the national court concerning the underlying transactions: see inter alia the judgment in Case C-126/88 Boots Company [1990] ECR I-1235, paragraph 11; judgment in Case C-19/92 Bally [1993] ECR I-2871, paragraph 8.

14 Judgment in Coöperatieve Aardappelenbewaarplaats, cited above, at paragraph 12; judgment m Apple and Pear Development Council, cited above, at paragraph 11; judgment in Naturally Yours Cosmetics, cited above, at paragraphs 11 and 12. The latter judgment applied the case-law, which concerned services, to the supply of goods. The Court has recently confirmed that case-law in the judgment in Tolsma, cited above, paragraph 13.

15 Judgment in Coöperatieve Aardappelenbewaarplaats, cited above, paragraph 12; judgment in Naturally Yours Cosmetics, cited above, paragraph 16.

16 Ibid.

17 Page 58 of the provisional judgment.

18 The case concerned an agricultural cooperative which stored potatoes for its members and for two years decided not to make a storage charge. According to the Netherlands tax authorities, the cooperative had none the less charged a consideration for its services consisting in the reduction in value of the shares of its members as a result of the failure to make a charge. The Court held that there was no direct link between the service supplied and the consideration received since an unascertained reduction in the value of shares could not be regarded as consideration received by the cooperative providing services: judgment in Coöperatieve Aardappelenbewaarplaats, cited above, paragraph 12.

19 This case concerned a public law body (the Apple and Pear Development Council) which was set up at the request of fruitgrowers and whose primary function was to advertise, promote and improve the quality of apples and pears produced in England and Wales. The Court gave a negative reply to the question whether that organization supplied services for consideration for the purposes of the Second VAT Directive since it imposed on its members a mandatory contribution dependent on the size of their apple and pear orchards: individual apple and pear growers received benefits from the activities of the organization only indirectly from those accruing generally to the industry as a whole; moreover there was no relationship between the level of the benefits for individual growers and the amount of the mandatory charge: judgment in Apple and Pear Development Council, cited above, paragraph 15.

20 Judgment in Naturally Yours Cosmetics, cited above, at paragraph 14 (my emphasis).

21 I would recall here the aim of that provision, as made clear by the Court in its judgment in Case C-20/91 De Jong [1992] ECR I-2847, paragraph 15, namely to ensure equal treatment as between a taxable person who applies goods forming part of the assets of his Business for private use and an ordinary consumer who buys goods of the same type. In pursuit of that objective, that provision prevents a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping the payment of VAT when he removes those goods from his business for private purposes and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them.

22 Judgment in Boots Company, cited above, at paragraph 18; see also my Opinion on the case [1990] ECR I-1256 to 57, points 11-12.

23 See the judgment in Coöperatieve Aardappelenbewaarplaats, paragraph 12, where the Court held that the taxable amount is everything which is received as consideration for a service.