- CE, Ass., 10 octobre 1996, p. 397 Case S.A. Cabinet Revert et Badelon
- 30 October 1996
- Translated by:
- Professor John Bell FBA
- Professor B. S. Markesinis
Considering that, on the one hand, in the light of art. 1 of the Sixth Directive of the Council of the European Communities of 17 May 1977, member states should take the necessary measures by 1 January 1978 at the latest in order to adapt their regime of VAT to the objectives of the Directive; as, even if the Ninth Directive of the Council of 26 June 1978, notified to France on 30 June 1978, authorised it only to implement the Sixth Directive by 1 January 1979, this Directive does not have any retroactive effect according to the interpretation given by the European Court of Justice; as this could not therefore cover the failure before 30 June 1978 of the French authorities to take measures consistent with the objectives of the Sixth Directive;
Considering that, on the other hand, arts. 256 and 261-4, para. 1, of the General Taxation Code, resulting from the Law of 6 January 1966 and remaining in force until their amendment by the Law of 29 December 1978, because they retain the subjection to VAT of business conducted by insurance brokers when they are not remunerated by commissions or charges fixed by laws or decrees, do not comply with the objectives of art. 13 B a) of the Sixth Directive, which exonerates from tax all activities of insurance and reinsurance carried out by brokers of insurance agents; as thus it is necessary to disapply in this measure the provisions of arts. 256 and 264-4, para. 1, during the period from 1 January 1978 to 30 June 1978; as it follows therefore that SA Cabinet Revert et Badelon, which conducts the activity of an insurance broker, is justified in claiming that there is no legal foundation to the claim made against it for VAT covering the periods from 1 to 29 February 1978 and 1 April to 30 June 1978;
Considering that, on the other hand, that for the period from 1 July to 31 December 1978, the company cannot claim that the articles 256 and 261-4, para. 1, of the General Taxation Code , do not comply with the objectives of art. 13 B a) of the Sixth Directive, since the deadline for implementation given to France was delayed by the Ninth Directive until 1 January 1979; as, in consequence, the claimant company has been charged correctly VAT for the period of 1 July to 30 June 1978 on the basis of the provisions of arts. 256 and 261-4, para. 1, of the General Taxation Code, remaining in force;
Considering that it follows from what has been said that SA Cabinet Revert et Badelon is only justified in claiming that the tribunal administratif of Paris wrongly rejected its claim for the periods going from 1 April to 30 June 1978 in the challenged judgment;….
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