C-267/99 Adam

JUDGMENT OF THE COURT (Second Chamber)

11 October 2001*

In Case C-267/99,

REFERENCE to the Court under Article 234 EC by the Tribunal d'arrondissement de Luxembourg (Luxembourg) for a preliminary ruling in the proceedings pending before that court between

Christiane Urbing-Adam,

and

Administration de l'enregistrement et des domaines,

on the interpretation of Annex F(2) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation 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),

* Language of the case: French.

THE COURT (Second Chamber),

composed of: N. Colneric, President of the Chamber, V. Skouris (Rapporteur) and J.N. Cunha Rodrigues, Judges,

Advocate General: A. Tizzano, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

— Mrs Urbing-Adam, by F. Entringer, avocat,

— l'Administration de l'enregistrement et des domaines, by A. Kronshagen, avocat,

— the Danish Government, by J. Molde, acting as Agent,

— the Commission of the European Communities, by E. Traversa and G. Bersc-heid, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 March 2001,

gives the following

Judgment

Legal context and the dispute

1By judgment of 15 July 1999, received at the Court of Justice on 19 July 1999, the Tribunal d'arrondissement de Luxembourg referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Annex F(2) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation 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) (hereinafter 'the Sixth Directive').

2The two questions have been raised in proceedings between Christiane Urbing-Adam, a managing agent (syndic) of buildings held in co-ownership, and the Luxembourg Administration de l'enregistrement et des domaines (hereinafter 'the Administration'), concerning the rate of value-added tax (hereinafter 'VAT') to be applied to the professional transactions carried out by Mrs Urbing-Adam during the financial years 1991 to 1994.

The legal background

The Sixth Directive

Provisions of the Sixth Directive referring to 'the liberal professions'

3Article 28(3)(b) of the Sixth Directive provides that the Member States may, during the transitional period, 'continue to exempt the activities set out in Annex F under conditions existing in the Member State concerned'.

4Annex F(2) of the Sixth Directive refers to the 'the liberal professions'. This provision is worded thus:

'Services supplied by authors, artists, performers, lawyers and other members of the liberal professions, other than the medical and paramedical professions, in so far as these are not services specified in Annex B to the second Council Directive of 11 April 1967'.

Provisions of the Sixth Directive relating to rates of tax

5In its version prior to 1 January 1993, Article 12 of the Sixth Directive, which governs rates of tax, provided in paragraph 4:

'In certain cases, the supply of goods or services may be made subject to increased or reduced rates. Each reduced rate shall be so fixed that the amount of value added tax resulting from the application thereof shall be such as in the normal way to permit the deduction therefrom of the whole of the value added tax deductible under the provisions of Article 17.'

6Council Directive 92/77/EEC of 19 October 1992 supplementing the common system of value added tax and amending Directive 77/388 (approximation of VAT rates) (OJ 1992 L 316, p. 1), which was to have been transposed by 31 December 1992 at the latest, deleted the first sentence of Article 12(4) of the Sixth Directive, rewrote its Article 28(2), and inserted in it a new Annex H.

7Article 28(2)(e) of the Sixth Directive, in the version resulting from Directive 92/77, which is the relevant provision in this case, provides:

'Member States which at 1 January 1991 applied a reduced rate to supplies of goods and services other than those specified in Annex H may apply the reduced rate or one of the two reduced rates provided for in Article 12(3) to such supplies, provided that the rate is not lower than 12%.'

8The aforementioned Annex H, which sets out a list of supplies of goods and services which are eligible for reduced rates of VAT, does not include the liberal professions among them.

National law

National legislation concerning VAT

9Prior to 1 January 1993, the Grand Duchy of Luxembourg applied a reduced rate of VAT of 6% to the liberal professions.

10Under Article 40(4)(b) of the Law of 5 August 1969, as amended and supplemented by the Law of 12 February 1979 (hereinafter 'the VAT Law'), the reduced rate of VAT applies, within the limits and under the conditions to be established by Grand Ducal regulation, to services provided in the exercise of a liberal profession.

11Article 4 of the Grand Ducal Regulation of 7 March 1980, which establishes the limits and conditions of application of the reduced rate of VAT, provides that services provided in the exercise of a liberal profession covered by Article 40(4)(b) of the VAT Law are the services arising from the activities of lawyers, notaries, bailiffs, property administrators, engineers, architects, quantity survey ors, inspectors, technicians, chemists, inventors, consultants, accountants, veterinary surgeons, journalists, photo-journalists, interpreters, translators, and other similar activities, whether such activities are carried on as primary or secondary occupations by natural or legal persons.

12In compliance with the Community legislation mentioned in paragraph 7 of this judgment, the Grand Duchy of Luxembourg fixed, with effect on 1 January 1993, a reduced 'intermediate' rate of VAT, of 12%, for the liberal professions.

13Article 40(3) of the VAT Law, in its version resulting from the Finance Law of 20 December 1991, provides that the intermediate rate of 12% applies to the goods and services mentioned in Annex C of that law. Paragraph 8 of Annex C covers services provided in the exercise of a liberal profession.

14Article 7(1) of the Grand Ducal Regulation of 21 December 1991, laying down the limits and conditions of application of the reduced, additionally-reduced and intermediate rates of the tax on added value, defines the services arising from the practice of a liberal profession mentioned in Paragraph 8 of Annex C of the VAT Law as amended, in the same terms as Article 4 of the Grand Ducal Regulation of 7 March 1980.

National legislation on the activity of managing agent

15Under the Law of 16 May 1975, governing co-ownership of buildings, all the co-owners of a building or of a group of buildings, the ownership of which is shared by several persons in lots comprising a private part and a share of the common parts, must belong to an association, which is the legal representative of the group endowed with legal personality.

16In accordance with the provisions of the Grand Ducal Regulation of 13 June 1975, laying down the measures for implementing the law on co-ownership, the managing agent, whose duties may be undertaken by any natural or legal person, is appointed by the general meeting of the co-owners. The managing agent is responsible for carrying out the provisions of the legislation on co-ownership and the decisions of the general meeting. He manages the building and attends to its preservation, security and maintenance. In an emergency he must see to the carrying out, on his own initiative, of all the works necessary for the protection of the building. He represents the association in formal legal transactions and, generally after authorisation by the co-owners' meeting, in legal proceedings.

The main proceedings and the questions referred for a preliminary ruling

17Taking the view that her activity involved the parctice of a liberal profession, Mrs Urbing-Adam submitted her VAT returns for the years 1991 and 1992 on the basis of a reduced rate of 6% and those relating to the years 1993 and 1994 on the basis of the intermediate rate of 12%. Since the Administration considered that Mrs Urbing-Adam's activity was not that of a 'property administrator' and was therefore not a liberal profession, but a commercial activity, it adjusted the tax and applied the normal VAT rate of 15% to the transactions in issue.

18Mrs Urbing-Adam appealed against that decision before the Tribunal d'arrondissement. Emphasising the independence enjoyed by managing agents under the Luxembourg legislation in carrying on their activity, she submitted that she practised a liberal profession within the meaning of Article 4 of the Grand Ducal Regulation of 7 March 1980 and Article 7 of the Grand Ducal Regulation of

21 December 1991. She argued that, on that basis, she was entitled to the reduced rate for the years 1991 and 1992, by virtue of Article 40(4)(b) of the VAT Law, and to the intermediate rate for the years 1993 and 1994, by virtue of Article 40(3) of that law, in its version resulting from the Finance Law of 20 December 1991.

19The Administration disputed that the activity of managing agent was a liberal profession as envisaged by the Luxembourg legislation, arguing that it was an activity different from that of property administrator, that its exercise did not require the possession of a special qualification and that it consisted of the simple management of the common parts of a building, under the supervision of the meeting of co-owners.

20Since the Luxembourg legislation relating to VAT does not define the concept of liberal profession but merely lists various activities which constitute liberal professions, as well as 'other similar activities', the Tribunal d'arrondissement de Luxembourg decided that the case before it required an interpretation of Annex F(2) of the Sixth Directive. It therefore decided to refer to the Court for a preliminary ruling the following questions:

'(1) Is the concept of a liberal profession mentioned in Annex F(2) to the Sixth Council Directive (77/388/EEC), on the harmonisation of the laws of the Member States relating to turnover taxes, an independent concept of Community law?

If the answer to the first question is in the affirmative:

(2) Does the concept of a liberal profession cover the activity of a managing agent of buildings in co-ownership?'

Jurisdiction of the Court of Justice

21The Administration argues that Article 28(3) and Annex F(2) of the Sixth Directive, whose interpretation is requested, are not relevant in the main proceedings because they govern VAT exemptions and not the application by the Member States of a reduced rate of VAT. The latter aspect is governed by Articles 12 and 28(2) of the Sixth Directive, as amended by Directive 92/77, and it was precisely on the basis of those provisions that the Grand Duchy of Luxembourg applied a reduced rate of 6% prior to 1 January 1993, and 12% after that date, to the transactions arising from the practice of a liberal profession. Further, the provisions of the Luxembourg legislation applicable to the main proceedings make no reference to the Community legislation.

22The national court has thus requested this Court to give a preliminary ruling on the interpretation of a concept in a provision of Community law which obviously does not apply to the main proceedings. Therefore, in accordance with the judgments in Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 40, Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003, paragraphs 18 and 19, and Case C-28/95 Leur-Bloem [1997] ECR 1-4161, paragraph 26, the Court has no jurisdiction to respond to the questions referred.

23With regard to that argument, it should remembered that it is settled law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38).

24Nevertheless, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal information necessary to give a useful answer to the questions submitted to it (see, inter alia, PreussenElektra, cited above, paragraph 39).

25In this case, it is true that the questions referred involve the interpretation of the concept of liberal profession in a provision of the Sixth Directive relating to VAT exemptions, whereas, in the main proceedings, the meaning of that concept must be established, not with a view to deciding on a VAT exemption, but so as to determine the rate of VAT applicable to the activity of managing agent, which is more a matter for the Luxembourg legislation relating to VAT.

26However, those circumstances do not of themselves lead to the conclusion that the interpretation requested by the national court bears no relation to the main proceedings and that, therefore, the Court of Justice has no jurisdiction to answer the questions referred.

27It follows from the case-law of the Court that where, in regulating internal situations, domestic legislation adopts the same solutions as those adopted in Community law so as to provide for a single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, Case C-130/95 Giloy [1997] ECR I-4291, paragraph 28, and Case C-1/99 Kofisa Italia [2001] ECR I-207, paragraph 32).

28That reasoning applies even more when the national legislation which uses a concept in a provision of Community law has been adopted with a view to the transposition into internal law of the directive of which the said provision forms part.

29It follows that, in such a situation, the fact that the concept of Community law whose interpretation is requested is to be applied, in the context of national law, in circumstances different from those envisaged by the corresponding Community provision does not of itself exclude all links between the interpretation sought and the subject-matter of the main proceedings.

30The national court, in its judgment, states that 'the [Luxembourg] legislation relating to tax on added value transposes into Luxembourg law the relevant Community directives' and that therefore, '[the] Luxembourg legislation on the rates which apply to the practice of the liberal professions must be interpreted in accordance with the provisions of Community law relating to VAT', and in particular Annex F(2) of the Sixth Directive, which includes that concept.

31In those circumstances and in view of the considerations set out in paragraphs 27 to 29 of this judgment, the Administration's argument that there is no connection between the questions referred and the matter being litigated in the main proceedings must be rejected.

32The Court therefore has jurisdiction to reply to the questions referred.

The questions referred for a preliminary ruling

33By its two questions, which can be dealt with together, the referring court is asking essentially whether the liberal professions mentioned in Annex F(2) of the Sixth Directive include an activity such as that of a managing agent of buildings in co-ownership.

34Since the question which arises in the main proceedings is whether such an activity is to be treated, for the purposes of the application of VAT, in the same way as the liberal professions which are subjected to a reduced rate rather than the normal rate of VAT, it should first be explained that Article 12(4) of the Sixth Directive, in its version prior to Directive 92/77, allowed the Member States to apply reduced rates to certain supplies of goods and services and that Article 28(2)(e) of the Sixth Directive, in its version resulting from Directive 92/77, authorised those Member States which, on 1 January 1991, were applying a reduced rate to supplies of goods and services other than those mentioned in Annex H, to continue to apply that rate on condition that it was not lower than 12%. It is an accepted fact that Annex H does not mention the liberal professions as such.

35It follows that the determination and the definition of the transactions to which a reduced rate may be applied under those provisions of the Sixth Directive are matters for the Member States concerned.

36Nonetheless, in exercising that power, the Member States must respect the principle of fiscal neutrality. That principle precludes in particular treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes, so that those goods or supplies must be subjected to a uniform rate (see, to that effect, Case C-481/98 Commission v France [2001] ECR I-3369, paragraph 22).

37That must also be the case for the treatment applied by the Grand Duchy of Luxembourg to the liberal professions, which, in accordance with the provisions of the Sixth Directive mentioned in paragraph 34 of this judgment, were subject, until 31 December 1992, to a reduced rate of 6%, which was raised from 1 January 1993 to 12%.

38As to the meaning of 'liberal professions', it must be noted that the Sixth Directive uses this term in its Annex F(2) without giving any general definition. Further, under Article 28(3)(b) of the Sixth Directive, to which Annex F relates, it is under the conditions existing in the Member State concerned that the transactions referred to in that Annex may, during the transitional period, be exempted from VAT.

39However, with a view to providing guidance to the referring court, certain factors which characterise the liberal professions, within the meaning of Annex F(2) to the Sixth Directive, should be emphasised. As the Commission has pointed out in its written observations, the liberal professions mentioned in that provision are activities which, inter alia, are of a marked intellectual character, require a high-level qualification and are usually subject to clear and strict professional regulation. In the exercise of such an activity, the personal element is of special importance and such exercise always involves a large measure of independence in the accomplishment of the professional activities.

40It is for the referring court to decide whether, having regard to those criteria, the activity of managing agent, as envisaged by the relevant Luxembourg legislation, must be regarded as a liberal profession.

41In view of the foregoing, the questions referred must be answered to the effect that it is for each Member State to determine and define the transactions to which may be applied a reduced rate under Article 12(4) of the Sixth Directive, until 31 December 1992, and under Article 28(2)(e) of the Sixth Directive, as amended by Directive 92/77, as from 1 January 1993, subject to the necessity to respect the principle of VAT neutrality.

The liberal professions mentioned in Annex F(2) to the Sixth Directive are activities which involve a marked intellectual character, require a high-level qualification and are usually subject to clear and strict professional regulation. In the exercise of such an activity, the personal element is of special importance and such exercise always involves a large measure of independence in the accomplishment of the professional activities.

Costs

Costs

42The costs incurred by the Danish Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Tribunal d'arrondissement de Luxembourg by judgment of 15 July 1999, hereby rules:

It is for each Member State to determine and define the transactions to which may be applied a reduced rate under Article 12(4) of the Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, until 31 December 1992, and under Article 28(2)(e) of that directive as amended by Council Directive 92/77/EEC of 19 October 1992 supplementing the common system of value added tax and amending Directive 77/388 (approximation of VAT rates), as from 1 January 1993, subject to the necessity to respect the principle of neutrality of the value added tax.

The liberal professions mentioned in Annex F(2) to the Sixth Directive 77/388 are activities which involve a marked intellectual character, require a high-level qualification and are usually subject to clear and strict professional regulation. In the exercise of such an activity, the personal element is of special importance and such exercise always involves a large measure of independence in the accomplishment of the professional activities.

Colneric Skouris Cunha Rodrigues

Delivered in open court in Luxembourg on 11 October 2001.

R. Grass N. Colneric

Registrar President of the Second Chamber

URBING-AD AM

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 29 March 2001 1

1By decision of 15 July 1999, the Tribunal d'arrondissement de Luxembourg (hereinafter 'the national court') referred to the Court for a preliminary ruling two questions concerning the interpretation of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment 2 (hereinafter 'the Sixth Directive'). In particular, the national court asks the Court to rule on the concept of a liberal profession as referred to in point 2 of Annex F to the Sixth Directive with a view to establishing whether that concept covers the activities of managing agents of buildings in co-ownership and whether, therefore, the reduced rate of VAT provided for the liberal professions by Luxembourg law may be applicable to that activity.

Legal framework

Community law

2As regards Community law, the Sixth Directive, as indicated, is relevant here. In the context of that directive, for reasons that will become clear below, a distinction is to be made between:

— first, the rules governing the reduction of VAT rates on which the Luxembourg legislation on the rates applicable to the liberal professions is based;

— second, the rules governing VAT exemptions, containing the reference to the liberal professions, which are the subject of the present reference for a preliminary ruling.

The rules governing the reduced rates of VAT referred to in Article 12(3) and (4) and Article 28(2)(e) of the Sixth Directive.

3Under Article 12(4) of the Sixth Directive Member States originally were permitted to impose reduced rates of VAT on certain goods or services. The only binding obligation on Member States was to fix the rate so that 'the amount of value added tax resulting from the application thereof shall be such as in the normal way to permit the deduction therefrom of the whole of the value added tax deductible under the provisions of Article 17'.

4Subsequently those rules were partially amended by Council Directive 92/77/EEC of 19 October 1992 supplementing the common system of value added tax and amending Directive 77/388 (hereinafter 'Directive 92/77') 3. Article 12(3)(a) of the Sixth Directive — as amended by Article 1(1) of Directive 92/77 — now provides that 'Member States may also apply either one or two reduced rates. The reduced rates may not be less than 5% and shall only apply to supplies of the categories of goods and services specified in Annex H' (which, for the purposes of the present case, do not include the services supplied by the liberal professions). Article 28 (referring to 'Transitional Provisions') of the Sixth Directive — as amended by Article 1(4)(e) of Directive 92/77 — provides furthermore that 'Member States which at 1 January 1991 applied a reduced rate to supplies of goods and services other than those specified in Annex H may apply the reduced rate or one of the two reduced rates provided for in Article 12(3) to such supplies, provided that the rate is not lower than 12%'.

The rules governing VAT exemptions referred to in Article 28(3)(b) of the Sixth Directive

5Article 28(3)(b) of the Sixth Directive provides that Member States may 'continue to exempt the activities set out in Annex F under conditions existing in the Member State concerned'. Point 2 of Annex F includes in such activities:

'Services supplied by authors, artists, performers, lawyers and other members of the liberal professions, other than the medical and paramedical professions in so far as these are not services specified in Annex B to the second Council Directive of 11 April 1967' (emphasis added).

The rules of Luxembourg law governing VAT rates

6The Luxembourg legislature opted not to apply Article 28(3)(b) of the Sixth Directive in order to exempt from VAT the activities just referred to. Instead, it had recourse to the option to apply reduced rates as permitted by Article 12(3) and (4) and Article 28(2)(e) of the Sixth Directive.

7According to the order for reference, under Article 40(4)(b) of the Grand-Ducal Law of 12 February 1979 on VAT a reduced rate of 6% (instead of the standard rate of 15%) applies to activities pursued in the exercise of a liberal profession, within the limits and under to the conditions laid down by the Grand-Ducal regulation.

8The order for reference also makes clear that Article 4 of the Grand-Ducal Regulation of 7 March 1980 — laying down the limits and conditions for applying VAT at the reduced rate within the meaning of Article 40 of the law of 12 February 1979 — included in the concept of liberal profession the activities of lawyers (avoués and avocats), notaries, process-servers, property administrators or trustees (admin istrateurs de biens), engineers, architects, surveyors, inspectors, technicians, che mists, inventors, consultants, accountants, veterinary surgeons, journalists, photo-journalists, interpreters, translators and any other similar activities.

9Article 40 of the VAT Law was subsequently amended by Article 8 of the Finance Law of 20 December 1991 which fixed — as from 1993 — an intermediate rate of 12% for activities in the exercise of a liberal profession; in relation to those activities, a new Grand-Ducal Regulation of 21 December 1991 reproduced the non-exhaustive list of professions set out in the abovementioned Regulation of 7 March 1980. According to the information supplied by the Commission, that amendment to the rate was connected to the adoption by the Community of Directive 92/77 referred to above.

The activity of a managing agent of buildings in co-ownership in the Grand Duchy of Luxembourg

10As the order for reference also notes, under the Law of 16 May 1975 on the co-ownership of buildings, the co-owners of a building or group of buildings must belong to a co-ownership association which is a legal entity in its own right.

11According to the provisions of the Grand-Ducal Regulation of 13 June 1975 laying down measures for implementing the law on co-ownership, the managing agent is generally appointed by the co-owners in general meeting and any natural person or legal entity may assume the office of managing agent. The managing agent ensure compliance with the co-ownership regulation and the decisions of the general meeting; he manages the building; he attends to its conservation and maintenance; in an emergency, he must, on his own initiative, see to the carrying out of all works necessary for the protection of the building; he normally represents, after authorisation by the meeting, the co-own ership association in civil matters and in legal proceedings.

Facts and questions for a preliminary ruling

12Mrs Christiane Adam is a managing agent of buildings in co-ownership in Luxembourg. In her VAT returns in respect of that activity for the financial years 1991 to 1994 she applied the reduced rate provided for by the Luxembourg law for the liberal professions on the ground that, in her judgment, the activity in point should be included in that category.

13However, this was not the view of the Administration de l'enregistrement et des domaines (Luxembourg administrative authority responsible for VAT) which issued relevant adjustment notices imposing the standard rate of 15%. Mrs Adam's appeals against those notices were in vain, because they were rejected by the Director of that Administration by decisions of 11 and 15 November 1996.

14Mrs Adam then appealed against those decisions to the Tribunal d'arrondissement de Luxembourg claiming that her activities were those of a liberal profession and, as such, according to the Luxembourg tax legislation, were entitled to a reduced VAT rate of 6% for the years 1991 to 1992 and the intermediate rate of 12% for the years 1993 to 1994 instead of the standard rate of 15%.

15In considering the matter, the national court noted at the outset that while Luxembourg legislation relating to VAT contains a list of activities covered by the concept of liberal profession, it does not provide a definition of that concept. Finding, however, that that legislation transposes into Luxembourg law the Community directives relating to VAT, the national court concluded that 'Luxembourg legislation on the rates which apply to the liberal professions must be interpreted in accordance with the provisions of Community law relating to VAT'.

16More specifically, it noted that under the terms of the Sixth Directive the 'standard' VAT rate is established by each Member State; that under Article 12 of the Sixth Directive Member States may apply increased or reduced rates for certain services and, finally, that under the transitional provisions set out in Article 28(3) of the Sixth Directive Member States may continue to exempt from VAT certain services listed in Annex F, including those supplied by 'members of the liberal professions'.

17Specifically on the basis of that latter point, the national court therefore decided to refer to the Court, under Article 234 EC, the following questions for a preliminary ruling:

'1. Is the concept of a liberal profession mentioned in point 2 of Annex F to the Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes an independent concept of Community law?

If the answer to the first question is in the affirmative:

2. Does the concept of a liberal profession cover the activity of managing agent of buildings in co-ownership?'

Arguments of the parties

18In addition to the parties to the main proceedings, the Danish Government and the Commission have submitted observations to the Court. Their conclusions may be summarised as follows.

19Both the administration de l'enregistrement et des domaines and the Commission have pointed out that the Community provision of which an interpretation is sought is not applicable in the present case since the national legislation in question concerns the reduction of VAT rates for the liberal professions, referred to in Article 12(3) and (4) and Article 28(2)(e) of the Sixth Directive, and not VAT exemptions, referred to in Article 28(3)(b), and Annex F to that Directive, referred to in the first question. While the Luxembourg Administration infers from this that the Court has no jurisdiction to rule on the questions referred to it (and only in the alternative suggests a negative reply to both questions), the Commission proposes that a reply be given to both questions referred by the national court, even if only to establish that the Member States are competent to determine the activities eligible for a reduced rate, with the sole proviso that the principle of VAT neutrality be respected.

20For her part, Mrs Adam maintains that the Court has jurisdiction on the grounds that the legislation relating to VAT is 'eminently of a Community nature'. As regards the substance of the matter, she repeats that the activity of a managing agent of buildings in co-ownership should be categorised as a liberal profession.

21Finally, the Danish Government, without dealing the question of the Court's jurisdiction, proposes that a reply be given to the first question to the effect that the concept of liberal profession referred to in point 2 of Annex F to the Sixth Directive constitutes a concept of Community law which, none the less, must be defined in the light of the national law of the Member States. Accordingly, the Danish Government does not deem a reply to the second question necessary, even though it considers, in the alternative, that such reply should be positive.

Legal analysis

On the jurisdiction of the Court

22As has also become clear from the debate between the participants in these proceedings, the question arises, as an inescapable preliminary issue, so it seems to me, whether the conditions for referring a question for a preliminary ruling under Article 234 EC are met. That is to say, initial consideration should be given to whether or not the Community provision (point 2 of Annex F to the Sixth Directive) whose interpretation is sought is relevant to resolving the dispute in the main proceedings and whether therefore it is necessary for the Court to intervene, as required under Article 234 EC, to enable the national court to reach its decision.

23On that point, as we know, the Court has consistently held that in principle 'it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver a judgment and the relevance of the questions which it submits to the Court' .

24As we know, furthermore, the Court retains for itself a certain power of review of the assessments made by national courts which may lead it, in an appropriate case, to find the reference inadmissible. In particular, it has repeatedly held that 'it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, [or] where the problem is hypothetical'. Accordingly, 'if it should appear that the question raised is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment'. For that reason, among others, the Court has excluded its own jurisdiction where 'it is obvious that Community law cannot apply, either directly or indirectly, to the circumstances of the case'.

25In my opinion, in the present case it is difficult to contest the view that the Community provision whose interpretation is sought is not applicable to the main proceedings, as the defendant and the Commission, as well as the other participants in these proceedings, maintain. As has been seen above, the Luxembourg legislation in question is concerned with fixing a reduced VAT rate for the liberal professions; it is not concerned at all with VAT exemptions under Article 28(3)(b) and point 2 of Annex F to the Sixth Directive.

26Moreover, it would appear that the national court is well aware of that and, in its order for reference, it correctly makes a distinction between the rules governing reduced rates (which in the present case provide the premiss for the Luxembourg legislation in question) and those relating to VAT exemptions. However, as noted above, the national court attaches decisive importance to the fact that 'the legislation relating to VAT transposes into Luxembourg law the relevant Community directives'. In particular, it would appear to be a decisive fact that the Community rules governing VAT exemptions, although not applicable to the present case, refer to the concept of liberal professions, as do the relevant national rules in the main proceedings, and that, while they are totally independent of each other, both sets of rules are concerned with VAT. That is why, according to the national court, 'Luxembourg legislation on the rates which apply to the liberal professions must be interpreted in accordance with the provisions of Community law relating to VAT'.

27While appreciating the concern of the Luxembourg court to found its decision in Community law and Community concepts, I must say that the connection between the question discussed in the main proceedings and the Community legislation of which an interpretation is sought seems somewhat slender and, in any event, too slender to support the relevance of the questions referred for a preliminary ruling and thus the Court's jurisdiction to rule on them.

28Above all, I must repeat once more that, while it appears in the same directive, the Community provision of which an interpretation is sought is quite distinct from those provisions which are relevant for the purposes of the national proceedings. Second, while it is true that under Article 12(3) and (4) and Article 28(2)(e) of the Sixth Directive Member States may apply reduced rates to certain activities, it is also true that the decision to avail of that possibility falls within the competence of the Member States and that, as regards the definition of those activities, the Member States are in no way obliged to refer to the list contained in Annex F to the Sixth Directive relating to VAT exemptions. There is thus no possibility, as far as we are concerned here, of establishing an interpretative connection between the national provisions on the activities subject to a reduced rate and those of the Sixth Directive on operations eligible for exemption. It is also clear that no such connection can be based on the general — and, I would say, fortuitous — fact that both the national and Community provisions refer to VAT.

29That being so, it seems to me that in this case that there are not even grounds for hypothesising, as might perhaps be inferred from a reading between the lines of the order for reference, a kind of indirect reference to the Community legislation (in the present case, Annex F to the Sixth Directive) in the national provisions in question. By this I mean that in the case now in question no reliance can be placed upon the well-known decision in Dzozi according to which 'it does not appear either from the wording of Article 177 or from the aim of the procedure introduced by that article that the authors of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the national law of a Member State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State'. 9

30Even without mentioning here the perplexity to which that decision may give rise, in my opinion reliance on it is out of the question with respect to situations such as that now under consideration. That is clear from the judgment in Kleinwort Benson in which the Court held that it had no jurisdiction to interpret a provision of the Brussels Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters in so far as what was involved was 'to enable the national court to decide on the application not of the Convention but of the national law of the Contracting State to which that court belongs'. Over and above the non-binding character of the interpretation sought from the Court, that conclusion was based in particular on the fact that the provisions in question of the Convention were taken as a model and only partly reproduced in the legislation of the State concerned, but did not contain 'a direct and unconditional renvoi to Community law' and therefore had not been rendered applicable as such by the national legislation concerned which was outwith the scope of the Convention.

31But no different conclusions are to be drawn from the subsequent judgments in Leur-Bloem 4 and Giloy in which the Court instead held that it had jurisdiction. In the first of those judgments it held that it 'has jurisdiction under Article 177 of the Treaty to interpret Community law where the situation in question is not governed directly by Community law but the national legislature, in transposing the provision of a directive into domestic law, has chosen to apply the same treatment to purely internal situations and to those governed by the directive, so that it has aligned domestic legislation to Community law'. In that case, in effect, the Court's jurisdiction is affirmed as the national legislature, required to transpose certain Community provisions into domestic law, extended the Community provisions intentionally and in full to purely internal situations.

32In its judgment in Giloy, the Court, in contrast, stated that 'where, in regulating internal situations, domestic legislation adopts the same solutions as those adopted in Community law so as to provide for one single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply'. More specifically, the Court affirmed its own jurisdiction where 'the provisions of domestic law in question apply without distinction to situations governed by domestic law and to situations governed by Community law, and sometimes to both simultaneously' with the result that '[national] law requires that the domestic provisions in question should always be applied in accordance with' the relevant Community provisions. In such a case, the Court's jurisdiction thus derives from the fact that national law requires that the provisions prescribed by Community law be applied to certain internal situations.

33The situation is quite different in the present case. As we have seen:

— the Luxembourg provision governing the application of a reduced VAT rate which applies to activities in the exercise of a liberal profession was adopted autonomously by the authorities of that country, and not to transpose a specific Community provision into domestic law. For the purpose of defining the activities subject to a reduced rate, those authorities were in no way obliged to refer to Community provisions such as those set out in Article 28(3) and Annex F to the Sixth Directive;

— for the purpose of determining the services subject to a reduced rate, the Luxembourg legislation did not refer, either directly or indirectly, to the Community rules, which were therefore not applicable in domestic law. Nor, for the purpose of determining the services subject to reduced rates, did the Luxembourg legislature take as a model the provision of the Sixth Directive on VAT exemption;

— the mere fact that the reference to the liberal professions is contained both in the list of activities exempted from VAT in Annex F to the Sixth Directive and in the list of activities subject to a reduced rate under Article 40 of the Luxembourg law certainly does not mean that the Luxembourg legislature intended to reproduce, even partially, the wording of a Community provision.

34In short, it seems to me that, in the situation just described, any ruling by the Court would risk being merely hypothetical or abstract inasmuch as it would be wholly alien to the factual and legal context of the main proceedings. On the other hand, the concept of a liberal profession referred to in Annex F to the Sixth Directive must be defined, in accordance with well-estab lished principles of interpretation, in the light of the content and aims of the provision incorporating that concept; it cannot be transposed automatically into national law and used to define a similar concept contained in a provision whose content and aims are different.

35In light of the above considerations, I therefore consider that it may be concluded that the questions referred by the Tribunal d'arrondissement de Luxembourg for a preliminary ruling are not relevant for the purpose of resolving the dispute in the main proceedings and that therefore the conditions laid down in Article 234 EC for enabling the Court to rule on the interpretation of the concept of liberal professions referred to in Annex F, point 2, to the Sixth Directive are not met.

On the substance of the questions

36However, if the Court should consider that it must declare itself competent to rule on the questions referred by the Tribunal d'arrondissement de Luxembourg, I consider that the reply to those questions is to be found in the arguments that I have developed above which lead to the same conclusions as those suggested by the Commission. In other words, I consider that this Court should reply to the national case therefore the definition of the latter court that Article 28(3) of and Annex F to operations, including the concept of 'liberal the Sixth Directive are concerned with profession', is a question which in this case operations which are eligible for VAT is not relevant for the purposes of Com exemption and not those, such as the ones in point the main proceedings, which are munity law, but falls within the competence subject to a reduced VAT rate and in that of the Member States.

Conclusion

Conclusion

37In light of the above considerations, I therefore propose that the Court declare that it has no jurisdiction to rule on the questions referred by the Tribunal d'arrondissement de Luxembourg. In any event, Article 28(3) of and Annex F to the Sixth Directive are concerned with operations which are eligible for VAT exemption and not with those, such as the ones in point the main proceedings, which are subject to a reduced VAT rate; as a result, the definition of the latter operations, including the concept of 'liberal profession', is a question which in this case is not relevant for the purposes of Community law, but falls within the competence of the Member States.

Notes

(1) Original language: Italian.

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

(3) OJ 1992 L 316, p. 1.

(4) Case C-36/99 Idéal Tourisme [2000] ECR I-6049, paragraph 20. Also see, inter alia, Cases C-421/97 Tarantik [1999] ECR 1-3633, paragraph 33, and C-415/93 Bosman [1995] ECR 1-4921, paragraph 59.

(5) Idéal Tourisme, cited above, paragraph 20. See also Cases C-437/97 EKW v Wein and Co. [2000] ECR I-1157, paragraph 52; Bosman, cited above, paragraph 61; C-343/90 Lourenço Dias [1992] ECR I-4673, paragraphs 17 and 18, and C-83/91 Meilicke [1992] ECR I-4871, paragraph 25.

(6) Lourenço Dias, cited above, paragraph 20.

(7) Cases C-28/95 Leur-Bloem [1997] ECR I-4161, paragraph 26, and CM 30/95 Gihy ECR I-4291, paragraph 22.

(8) Joined Cases C-297/88 and C-197/89 [1990] ECR I-3763.

(9) Paragraph 36.

(10) See, on that point, Opinion of Advocate General Tesauro in Case C-346/93 Kleinwort Benson [1995] ECR I-615, points 24 and 25, and the Opinion of Advocate General Jacobs in Leur-Bloem and Giloy, cited above, points 75 to

(81) .

(11) Cited above.

(12) Paragraph 14.

(13) Paragraphs 16 and 19.

(14) Cited above.

(15) Cited above.

(16) Paragraph 34.

(17) Paragraph 28.

(18) Paragraph 27.

(19) See, inter alia, Cases C-338/90 Hamlin Electronics [1992] ECR I-2333, paragraph 12, and C-467/93 Analog Devices [1995] ECR I-1403, paragraph 8. In particular, the Court has repeatedly made it clear that two identical expressions inserted into different provisions that have a different ratio may be interpreted differently: see, for example, the well-known Opinion 1/91 on the first draft EFTA Agreement in which it is stated that 'the identical wording of the terms of the provisions of the agreement and the corresponding Community provisions does not mean that they should necessarily be interpreted in the same way' (Opinion 1/91 [1991] ECR I-6079, paragraph 14).