Case C-382/02

Cimber Air A/S

v

Skatteministeriet

(Reference for a preliminary ruling from the Vestre Landsret)

(Sixth VAT Directive – Article 15(6), (7) and (9) – Exemption of exports outside the Community – Meaning of aircraft used by airlines operating chiefly on international routes – Exemption for fuelling and provisioning of domestic flights)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth Directive – Exemption for certain transactions relating to aircraft used by airlines operating for reward chiefly on international routes – Scope – Transactions relating to aircraft operating domestic routes – Included – Concept of airlines operating chiefly on international routes – Assessment by the national courts

(Council Directive 77/388, Art. 15(6), (7) and (9))

The provisions of Article 15(6), (7) and (9) of Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes regarding the exemption from value added tax for certain transactions relating to aircraft used by airlines operating for reward chiefly on international routes must be interpreted as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate on domestic routes but are used by those airlines are exempt from value added tax.

As regards the question whether an airline operates chiefly on international routes within the meaning of Article 15(6) that concept must be considered, in any event, as including a company whose operations on non-international routes are found to be considerably less extensive than its international activities. In that respect, it is for the national courts to assess the extent of the international business and the extent of the non-international business of that company. In doing so, they may take account of all information which indicates the relative importance of the type of operations concerned, in particular turnover.

(see paras 30, 39-40, operative part 1-2)

JUDGMENT OF THE COURT (Second Chamber) 16 September 2004 (1)

(Sixth VAT Directive – Article 15(6), (7) and (9) – Exemption of exports outside the Community – Meaning of ‘aircraft used by airlines operating chiefly on international routes’ – Exemption for fuelling and provisioning of domestic flights)

In Case C-382/02,REFERENCE for a preliminary ruling under Article 234 ECfrom the Vestre Landsret (Denmark), made by decision of 9 October 2002, received at the Court on 23 October 2002, in the proceedings

v

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), J.N. Cunha Rodrigues and N. Colneric, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure and further to the hearing on 4 March 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 25 March 2004,

gives the following

‘Without prejudice to other Community provisions Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse:

...

...

…’

‘The following supplies of goods and services shall be exempt from tax:

...

...

–

–

–

–

represent the ‘supplies of goods’ and ‘supplies of services’ referred to in Article 15(7) and (9) of the Sixth Directive and are VAT exempt only if they are for a flight bound abroad.

‘1.

2.On those grounds, the Court (Second Chamber) rules as follows:

Signatures.