C-317/86 Lambert and Others v Directeur des services fiscaux de l'Orne and Others
Judgment · Court of Justice · France · 15 March 1989
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Fixed licence charge on gaming machines and the ban on other turnover taxes
What is the case?
France levied a charge on automatic games machines made available to the public. The amount varied according to the type of machine and, potentially, its location, but it was fixed and did not depend on the takings generated. Operators and traders in several French departments, some of whom imported the machines, challenged the charge before the regional courts, arguing that it was an unlawful turnover tax alongside VAT and that it discriminated against machines imported from other Member States.
What is the Court asked?
Whether Article 33 of the Sixth Directive prevents a Member State from imposing, alongside VAT, a fixed charge on the making available of gaming machines to the public. Whether Article 95 of the EEC Treaty applies to taxation on the use of products imported solely for that use, and whether a scale graduated by machine category infringes it. Whether Article 30 of the Treaty can apply in addition.
The Court’s decision
Article 33 bars only taxes, duties or charges characterisable as turnover taxes. A charge assessed exclusively on the placing of a machine at the disposal of the public, without regard to the revenue it could generate, is not such a tax, even if the amount varies with the machine's characteristics or location. Article 95 does cover taxation on the use of products imported solely for that use, but a scale graduated by machine category pursuing legitimate social objectives and giving no advantage to domestic products is compatible. Article 30 does not apply where Article 95 governs. Confirms that fixed licence or authorisation charges on gaming and amusement machines can coexist with VAT. Relevant to operators of gaming and amusement machines and to advisers assessing local or sectoral levies for Article 33 compatibility.
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Legislation interpreted
Record
- Court
- Court of Justice
- Case number
- C-317/86
- ECLI
- ECLI:EU:C:1989:125
- Official texts
- Judgment of 15 March 1989 (61986CJ0317)
Opinion of the Advocate General of 28 February 1989 (61986CC0317) - Cite as
- Judgment of 15 March 1989, Lambert and Others v Directeur des services fiscaux de l'Orne and Others, C-317/86, EU:C:1989:125
Judgment of 15 March 1989
Text as published by the Court on EUR-Lex, CELEX 61986CJ0317.
JUDGMENT OF THE COURT (Second Chamber)
15 March 1989 *
In Joined Cases 317/86, 48, 49, 285 and 363 to 367/87, 65 and 78 to 80/88
REFERENCES to the Court under Article 177 of the EEC Treaty
(1) in Case 317/86 by the tribunal de grande instance (Regional Court), Argentan, for a preliminary ruling in the proceedings pending before that court between
Philippe Lambert, a trader, residing in Flers,
and
Directeur des services fiscaux de l'Orne,
(2) in Cases 48 and 49/87 by the tribunal de grande instance, Verdun, for a preliminary ruling in the proceedings pending before that court between
Marie-Thérèse Charbonelle, a trader, residing in Flize (Case 48/87),
Willot SARL, whose registered office is in Vandceuvre-les-Nancy (Case 49/87),
and
Directeur des services fiscaux de la Meuse,
(3) in Case 285/87 by the tribunal de grande instance, Nîmes, for a preliminary ruling in the proceedings pending before that court between
Etablissements Dico SARL, whose registered office is in Avignon,
and
Directeur des services fiscaux du Gard,
* Language of the case: French.
LAMBERT AND OTHERS v DIRECTEUR DES SERVICES FISCAUX DE L'ORNE AND OTHERS
(4) in Cases 363 to 367/87 and 78 to 80/88 by the tribunal de grande instance, Bonneville, for a preliminary ruling in the proceedings pending before that court between
Sofel SARL, whose registered office in in Sallanches (Cases 363 and 366/87 and 79/88),
Jean-Pierre Auber, a trader, residing in Megève (Cases 364 and 365/87),
Pellerey Display SARL, whose registered office is in Sallanches (Cases 367/87 and 78/88),
Jean Mentreau, a trader, residing in Chatel (Case 80/88),
and
Directeur des services fiscaux de la Haute-Savoie,
(5) in Case 65/88 by the tribunal de grande instance, Nîmes, for a preliminary ruling in the proceedings pending before that court between
Louis Garcia, a trader, residing in Nîmes,
and
Directeur des services fiscaux du Gard,
on the interpretation of Article 33 of the Sixth Council Directive on value-added tax and Articles 30 and 95 of the EEC Treaty,
THE COURT (Second Chamber),
composed of: T. F. O'Higgins, President of Chamber, G. F. Mancini and F. A. Schockweiler, Judges, (the grounds of the judgment are not reproduced)
in answer to the questions submitted to it by the tribunaux de grande instance, Argentan, Verdun, Nîmes and Bonneville, by judgments of 6 November 1986, 12 February 1987, 29 June 1987, 24 July 1987, 28 October 1987 and 13 January 1988, hereby rules:
(1) Article 33 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 (VAT): uniform basis of assessment — must be interpreted as meaning that as from the introduction of the common system of VAT the Member States are no longer entitled to impose on the supply of goods, the provision of services or imports liable to VAT, taxes, duties or charges which can be characterized as turnover taxes.
(2) A charge which, although providing for different amounts according to the characteristics of the taxed article and possibly its location, is assessed exclusively on the basis of the placing thereof at the disposal of the public, without in fact taking account of the revenue which could be generated thereby, may not be regarded as a charge which can be characterized as a turnover tax.
(3) Article 95 of the EEC Treaty also applies to internal taxation which is imposed on the use of imported products where those products are essentially intended for such use and have been imported solely for that purpose.
(4) A system of taxation graduated according to the various categories of automatic games machines, which is intended to achieve legitimate social objectives and which procures no fiscal advantage for domestic products to the detriment of similar or competing imported products, is not incompatible with Article 95 of the EEC Treaty.
(5) Article 30 of the EEC Treaty does not apply to the taxation of products originating in other Member States the compatibility of which with the Treaty falls under Article 95 thereof.
Opinion of the Advocate General of 28 February 1989
Text as published by the Court on EUR-Lex, CELEX 61986CC0317.
LAMBERT AND OTHERS v DIRECTEUR DES SERVICES FISCAUX DE L'ORNE AND OTHERS
OPINION OF THE ADVOCATE GENERAL
Mr Advocate General Tesauro delivered his Opinion on 28 February 1989. ''' He concluded as follows:
(i) in the case of the State tax, the answer is expressly set out in the judgment in Bergandi;
(ii) in the case of the municipal tax, it is for the national court to determine whether it exhibits the same characteristics as the State tax, obviously bearing in mind that, according to the judgment in Bergandi, the status of the authority which collects the tax, whether it be the State or a municipality, is irrelevant and it is the of the tax that matters.
structure
* Original language. Italian