Strasbourg, 17 January 2007

Dear Mr I.,

On 6 October 2005, you lodged a complaint with the European Ombudsman against the European Commission, concerning the handling of your correspondence and the interpretation of EC legislation by this institution.

On 10 October, 17 November and 13 December 2005, you submitted additional information.

On 15 December 2005, I informed the President of the Commission of your complaint and asked him to submit an opinion by 31 March 2006.

On 6 April 2006, the Commission sent its opinion in English.

On 24 April 2006, you requested information about the Commission's opinion. You were informed, on the same date, that the Commission had not yet sent the translation of its opinion in Spanish and that the translation would be forwarded to you as soon as it would be available.

On 6 June 2006, you inquired about the Commission's opinion on your case. On 8 June 2006, my services informed you that they had not yet received the Spanish translation and that they had recently contacted the Commission in this respect.

On 8 June 2006, the Commission sent a translation of its opinion in Spanish, which was forwarded to you on 12 June 2006, with an invitation to make observations.

On 12 June 2006, you sent me your observations. On the same date, you sent additional observations, which my services acknowledged on 13 June 2006. On 20 June 2006, you sent an annex to your observations.

On 11, 18 and 19 September 2006, you requested information about the handling of your complaint, which was provided to you on 21 September 2006.

On 20 October 2006, you sent additional information.

On 5 December 2006, you inquired about the handling of your complaint. On 12 December 2006, you were informed accordingly.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The facts of the case according to the complainant are, in summary, as follows:

On 27 October 2003, the complainant addressed a letter to the European Commission concerning an alleged violation of EC law by the Spanish authorities. He explained that, according to a decision of 5 March 2003 adopted by the Spanish administrative authorities(1), Value Added Tax ("VAT") could only be deducted in connection with the sale of goods upon presentation of (i) a complete invoice, which should include an invoice number, or (ii) the specific documents mentioned in Article 97 of the Spanish VAT legislation(2). Accordingly, no other documents pertaining to the transaction, such as the contract of sale or a public document proving the existence of the transaction, were acceptable when requesting the deduction of VAT.

In the complainant's view, proper evidence of the legal act, such as that provided by the contract itself, or by a public document incorporating all the requirements of an invoice, except for the invoice number, should be sufficient for the purposes of VAT deduction. He mentioned that 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(3) (the "Sixth VAT Directive") left Member States free to establish the necessary requirements for invoices as regards VAT deduction. However, according to the case-law of the Community Courts, these requirements should not, by their number or technical nature, render practically impossible or extremely difficult the exercise of the right of deduction.

The complainant considered that the decision of the Spanish authorities was contrary to the principles of tax neutrality and proportionality and that it was based on an excessive interpretation of the freedom granted by the Sixth VAT Directive to the Member States to determine the characteristics of an invoice. He referred to Spanish case-law, according to which strict formal requirements should not impede or render impossible the right to VAT deduction(4) and to a Spanish report according to which an invoice should not be considered the only means of proof. He claimed that the Commission should start infringement proceedings against Spain.

By letter of 2 December 2003, the Commission explained that the situation described in the complainant's letter did not reveal an infringement of EC law. The Commission first clarified that, prior to the entry into force of Directive 2001/115/EC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of valued added tax(5) ("Directive 2001/115/EC"), Member States had the power to lay down the requirements which should be included in a document for VAT deduction purposes. According to the case-law of the Community Courts, failure to present an invoice incorporating certain requirements by the taxable person entitled the Member States, under certain conditions, to deny the right to deduct VAT(6). The Commission pointed out that Directive 2001/115/EC would harmonise VAT invoicing requirements as of 1 January 2004. In accordance with Directive 2001/115/EC, the possession of a standard invoice with an invoice number would be required for VAT deduction purposes. In other words, a standard invoice with an invoice sequential number based on one or more series would not simply be one of the additional requirements that Member States could ask for, but would constitute an essential requirement for VAT deduction purposes. In any case, the Commission concluded that the invoice number by no means rendered it impossible or extremely difficult to exercise the right to deduct VAT.

Further letters on the same subject were sent by the complainant on 18 December 2003 and 19 April 2004, which the Commission answered on 3 February and 6 May 2004, respectively.

In his letter of 18 December 2003, the complainant asked the Commission to reconsider its decision, or alternatively, to amend the Sixth VAT Directive. He considered that failure to include one of the requirements established by the Sixth VAT Directive in an invoice should not render VAT deduction impossible, as this would be contrary to the principle of proportionality. He considered that alternative less onerous sanctions should be envisaged in the event of failure to comply with such formal requirements. The Commission informed the complainant, on 3 February 2004, that the possibility to accept other documents had already been the subject of a debate among the Member States on the occasion of the approval of Directive 2001/115/EC, and that it was too early to raise this issue again with them.

In its letter of 19 April 2004, the complainant argued that the Commission's position was inconsistent with the ruling of the European Court of Justice (the "ECJ") in Case C-90/02 Finanzamt Gummersbach(7), according to which other documents should be accepted for VAT deduction purposes. However, the Commission pointed out, in its letter of 6 May 2004, that the scope of Case C-90/02 Finanzamt Gummersbach was limited to the specific situation where the "reverse charge procedure"(8) applies. The complainant, in contrast, did not refer to the specific situation of the "reverse charge procedure", but rather to the general VAT deduction situation(9). The Commission pointed out that the Sixth VAT Directive required a standard invoice for the general VAT deduction situation. Therefore, it confirmed its earlier position and restated its intention not to open an infringement procedure against Spain.

In his complaint to the Ombudsman, the complainant argued that the presentation of an invoice was a mere formal obligation and that refusing a VAT deduction in the absence of such an invoice was contrary to the principle of proportionality. He referred to extensive case-law of the Community Courts on the principle of proportionality(10). He also referred to several decisions of the Spanish courts concerning flexibility in the interpretation of formal requirements for VAT deduction(11). He also expressed his view as regards the possible legislative measures the Commission should take, such as modifying the Sixth VAT Directive.

The complainant subsequently informed the Ombudsman of several arguments included in a report adopted by the European Economic and Social Committee on 28 September 2005 in relation to the improvement in the application of EU law and of two recent rulings by the ECJ in relation to the principle of proportionality(12). The complainant also sent a report drafted by him concerning non-judicial proceedings designed to control the application of EU law.

The allegation on which the Ombudsman asked the Commission to submit an opinion is the following:

The complainant alleged, in summary, that the Commission had failed to deal appropriately with his correspondence of 27 October and 18 December 2003, and 19 April 2004.

In support of his allegation, the complainant argued that the Commission's interpretation of the Sixth VAT Directive, whereby, for VAT deduction purposes, Member States must request the specific invoice relating to the transaction (which must include an invoice number) to the exclusion of any other type of evidence (such as the contract of sale) was not in conformity with the case-law of the Community Courts, and was incompatible with the principle of proportionality set out in Article 5 of the EC Treaty.

The Ombudsman asked the Commission to include, in its opinion, an explanation of the reasons why the complainant’s correspondence did not appear to have been registered as a complaint, in accordance with the Commission's Communication of 10 October 2002 to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law (the "2002 Communication")(13).

THE INQUIRY

The Commission’s opinion

In its opinion submitted to the Ombudsman, the Commission briefly described the background of the case and addressed first the complainant's allegation that it had failed to deal appropriately with his correspondence. The Commission thereafter referred to the Ombudsman's request for explanations concerning the non-registration of the complainant's correspondence as a complaint, in accordance with the 2002 Communication.

As regards the complainant's first communication of 27 October 2003, in which he requested the Commission to initiate infringement proceedings against Spain, the Commission explained that it had replied by letter dated 2 December 2003. In this letter, the Commission apologised for the delay in responding and explained that, prior to Directive 2001/115/EC(14), Member States had the power to lay down the information requirements that should be included in a document for VAT deduction purposes and that this power had to respect the general VAT principles, as clarified by the ECJ in Joined Cases 123/1987 and 330/1987(15).

The Commission went on to point out that, as of 1 January 2004, EC legislation would directly establish the specific information to be included in invoices for VAT deduction purposes. It also noted that it considered that mention of the invoice number based on one or more series did not render the exercise of the right to VAT deduction practically impossible or excessively difficult. In light of the above, the Commission concluded that the complainant's letter did not reveal an infringement of EC law.

Concerning the complainant's e-mail of 18 December 2003, in which he insisted on the points contained in his previous letter, reiterated his claim that the Commission should initiate infringement proceedings against Spain and suggested that the Sixth VAT Directive should be amended, the Commission explained that it had replied to the e-mail in two different letters.

The complainant was informed, by letter of 21 January 2004, that, given that he had not raised new arguments, the Commission maintained its position that it should not start infringement proceedings against Spain. The complainant was also informed that his correspondence had been transferred to the responsible services in the Directorate-General for Taxation and Customs Union ("DG TAXUD"), so that they could assess whether a legislative modification of the Sixth VAT Directive was necessary.

DG TAXUD wrote to the complainant on 3 February 2004. The letter noted that there was no possibility of amending the Sixth VAT Directive for the timebeing. DG TAXUD explained that the possibility to accept other documents for VAT deduction purposes had been subject to debate among the Member States on the occasion of the approval of Directive 2001/115/EC. Member States, on that occasion, had agreed as regards certain requirements in relation to VAT which must be included in invoices. During these discussions, Member States had considered the invoice number based on one or more series to be an essential requirement for the purposes of tax control. As a result, the Commission considered that it was too early to raise this issue again with the Member States. It explained that, in any case, a revision of the Sixth VAT Directive was expected by the end of 2008.

In the opinion forwarded to the Ombudsman, the Commission expressed regrets for the delays in responding to the complainant.

The Commission thereafter explained that the complainant sent a further communication to the Commission on 19 April 2004 in which he requested the Commission to review its position in light of a recent ruling by the ECJ(16). In its reply of 6 May 2004, the Commission clarified that this case referred to a very specific situation(17) and concluded that the criteria laid down in that case were of no assistance in relation to the complainant's case. The Commission enclosed, with its opinion, a copy of the complainant's correspondence and its replies to this correspondence.

As regards the Ombudsman's request for explanations concerning its failure to register the complainant's correspondence as a complaint(18), the Commission argued that Article 3 of the 2002 Communication(19) included several exceptions to the obligation to register correspondence as a complaint. In particular, the Commission pointed out that, according to this article, correspondence that sets out a grievance with respect to which the Commission has adopted a clear, public and consistent position, shall not be investigable as a complaint and shall, therefore, not be recorded in the central registry of complaints(20). Such a position shal l be communicated to the complainant.

On the basis of this exception, the Commission considered that it had taken a clear, public and consistent position with regard to the fact that, in order to exercise the right to deduct VAT, a taxable person must necessarily be in possession of an invoice meeting all the requirements set out in the Sixth VAT Directive, and in particular, those referring to the items of information which must appear in a document in order to be considered as an invoice for VAT purposes. Therefore, the Commission took the view that the correspondence received from the complainant could be dealt with by informing him of that position in detail, and that it was not necessary to register it as a complaint.

The Commission further explained that its consistent opinion on the complainant's subject had been expressed, inter alia, in the explanatory memorandum of the Sixth VAT Directive, in a number of infringement proceedings initiated against Member States on the issue and on DG TAXUD's website, which provides information on invoicing available to the general public and contains a memo on "Most Frequently Asked Questions" with regards to invoicing rules. The Commission included, in its opinion, the Internet link to the two last documents.

In light of the above, the Commission argued that, by letter of 2 December 2003, it communicated to the complainant its clear, public and consistent position on the requirements for VAT deduction and that it confirmed its position in its subsequent letters of 21 January and 6 May 2004.

The Commission concluded that it had dealt properly with the complainant's correspondence.

The complainant's observations

In his observations, the complainant stressed that the primary purpose of his complaint to the Ombudsman was to emphasise that the Commission had failed to apply the principle of proportionality in the formulation of its legislative proposals on VAT, in its handling of infringement proceedings and in its replies to information requests.

As to the Commission’s statement that it had taken a clear, public and consistent position with regards to the requirements concerning invoices set up in the Sixth VAT Directive, in particular, those appearing in an invoice for VAT deduction purposes, the complainant considered that this position itself was contrary to the principle of proportionality and the case-law of the Community Courts. Therefore, in his view, the Commission's position was an instance of maladministration, as it implied an inappropriate interpretation of VAT legislation(21). He reiterated his comments on the value of public documents as instruments of proof and on the paramount importance of the principle of proportionality in the Commission's legislative initiatives.

The complainant considered that an interpretation of the Sixth VAT Directive in such a way as to authorise Member States to refuse the right to deduct VAT to taxable persons not being in possession of a standard invoice did not comply with the proportionality standards. He emphasised that more proportionate sanctions should be applied in the event of a failure to respect this formal requirement.

The complainant argued that, in its opinion, the Commission had avoided taking a position as regards whether EC legislation should respect the principle of proportionality and referred to case law of the Community Courts according to which this principle is one of the general principles of Community law(22).

THE DECISION

1 Preliminary remark

1.1 The complainant alleged that the Commission failed to deal appropriately with his correspondence of 27 October 2003, 18 December 2003 and 19 April 2004. In support of this allegation, he argued that the Commission's interpretation of 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 (the "Sixth VAT Directive")(23) was not in conformity with the case-law of the Community Courts and the principle of proportionality set out in Article 5 of the EC Treaty.

1.2 In his observations, the complainant stressed that the primary purpose of his complaint was to emphasise that the Commission had failed to apply the principle of proportionality. In this context, the complainant mentioned the formulation of the Commission’s legislative proposals on VAT and argued that the Commission had avoided taking a position on whether Community legislation should respect the principle of proportionality.

The Ombudsman does not understand the complainant’s observations as a new allegation, but as emphasising the substantive aspect of his original allegation.

1.3 In his decision, the Ombudsman will deal, first, with the procedural aspects of the complainant’s allegation, namely, the Commission's failure to register the complainant's correspondence as a complaint and its handling of the complainant's correspondence. The Ombudsman will thereafter address the substantive aspect of the allegation, which relates to the Commission's interpretation of the Sixth VAT Directive.

2 Procedural aspects of the allegation

2.1 In his communications to the Commission dated 27 October 2003, 18 December 2003 and 19 April 2004 the complainant alleged that the Spanish authorities had infringed the Sixth VAT Directive and claimed that the Commission should start infringement proceedings against Spain.

The Ombudsman requested the Commission to include, in its opinion, an explanation of the reasons why the complainant’s correspondence did not appear to have been registered as a complaint, in accordance with the Commission's Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law ("the 2002 Communication")(24).

2.2 In its opinion, the Commission argues that it had replied to the complainant’s correspondence by letters of 2 December 2003, 21 January, 3 February and 6 May 2004, and that it had apologised for the late reply of some of this correspondence. The Commission explains that it had transferred the complainant’s communication of 18 December 2003, claiming that the Sixth VAT Directive should be amended, to the Directorate-General for Taxation and Customs Union («DG TAXUD»), which was responsible for this issue, so that it could appropriately evaluate the arguments raised by the complainant.

As regards the non-registration of the complainant’s correspondence as a complaint , the Commission argues, in summary, that one of the exceptions to the general obligation to register applied, since the Commission had adopted a clear, public and consistent position as regards the requirement to present an invoice. The Commission referred, in particular, to the explanatory memorandum of the Sixth VAT Directive, to a number of infringement proceedings initiated against Member States and to DG TAXUD's website. The Commission also argued that its correspondence had communicated this position to the complainant.

The Commission provided a copy of its correspondence with the complainant.

2.3 As regards the question of non-registration of the correspondence as a complaint, the Ombudsman notes that DG TAXUD's website includes detailed information concerning EC rules on VAT invoicing. In particular, he notes that in its section «VAT: Traders», it includes the document «VAT Invoicing Rules», which provides an extensive explanation of the modifications introduced by Directive 2001/115/EC on the invoicing system and on the creation of a simplified set of rules valid throughout the EU (which would replace different national legislation). This document expressly states that Directive 2001/115/EC establishes «a list of ten mandatory general items of information that must be included on every invoice (...).» Moreover, Section 1(1) of the document entitled «Frequently Asked Questions for Traders», which is also available on DG TAXUD's website, defines an invoice as any document in paper or electronic form that may serve to obtain a VAT deduction for a taxable person, provided that the conditions laid down in the Sixth VAT Directive are fulfilled. Section 1(4)(1) of this document lists the obligatory information for all invoices, which includes a sequential number that uniquely identifies the invoice. This information is also referred to in the Commission's memo of 27 January 2004 (MEMO/04/15), which is also available on DG TAXUD's website. Finally, the Ombudsman also notes that recital 4 to Directive 2001/115/EC mentions that, in order for the internal market to function properly, it is necessary to draw up a harmonised list, at the Community level, of the information that must appear on invoices for the purpose of VAT.

In light of the above, the Ombudsman considers the Commission's explanation of the reasons why it did not register the complainant's correspondence to be reasonable.

2.4 As regards the handling of the complainant’s correspondence, the Ombudsman notes that Article 14 of the European Code of Good Administrative Behaviour ("the European Code") provides that:

"[e]very letter or complaint to the Institution shall receive an acknowledgement of receipt within a period of two weeks, except if a substantive reply can be sent within that period."

Furthermore, the Commission's Code on Good Administrative Behaviour, in Section 4 ("Dealing with Enquiries") sets out that:

"[a] reply to a letter addressed to the Commission shal l be sent within 15 working days from the date of receipt of the letter by the responsible Commission department."

2.5 The Ombudsman also notes that, from the information available, it appears that, on 2 December 2003 and 21 January 2004 respectively, the Commission replied to the complainant's correspondence of 27 October and 18 December 2003, and that it provided him with detailed explanations as regards his concerns. The Ombudsman also notes that the Commission transferred the complainant's correspondence of 18 December 2003 to the responsible services in DG TAXUD, so that his considerations could be properly assessed and that these services provided him with a detailed explanation on 3 February 2004. The Ombudsman also notes that, on 6 May 2004, the Commission replied in detail to the complainant’s communication of 19 April 2004.

2.6 In light of the above, and taking into account that the Commission has apologised for any delays there might have been in replying to the complainant's correspondence, the Ombudsman considers that it is not necessary to make further inquiries as regards this aspect of the case.

3 The substantive aspect of the allegation

3.1 In support of his allegation that the Commission had failed to deal appropriately with his correspondence, the complainant argues that the Commission's interpretation of the Sixth VAT Directive, whereby, for the deduction of VAT, Member States must request the specific invoice of the transaction (with an invoice number) and not any other type of evidence (such as a contract of sale), does not conform to the case-law of the Community Courts and is incompatible with the principle of proportionality set out in Article 5 of the EC Treaty. In his view, proper evidence of the transaction, such as that provided by a contract or by a public document, should be sufficient for the purposes of VAT deductions. He mentions that, although the Sixth VAT Directive leaves Member States free to establish the necessary requirements for invoices as regards VAT deductions, these requirements should not, according to the case-law of the Community Courts, render, by their number or technical nature, practically impossible or extremely difficult the exercise of the right to deduct VAT. The complainant expresses his views concerning a potential modification of the Sixth VAT Directive.

3.2 In its opinion, the Commission does not expressly address the question of the interpretation of the Sixth VAT Directive. However, in its correspondence with the complainant, it clarified that, prior to the effective application of Directive 2001/115/EC(25), Member States were free to lay down the information requirements that should be included in a document for VAT deduction purposes and that this power had to respect the general VAT principles, as clarified by the European Court of Justice (the "ECJ") in Joined Cases 123/87 and 330/87 Jeunehomme(26). However, the Commission explained that, as of 1 January 2004, the date by which Directive 2001/115/EC had to be transposed, the items of information to be included in invoices for VAT deduction purposes were harmonised.

The Commission considered that mentioning the invoice number based on one or more series does not render the exercise of the right to VAT deduction practically impossible or excessively difficult. It explains that the possibility to accept other documents was debated on the occasion of the approval of Directive 2001/115/EC and that Member States considered the invoice number to be an essential requirement for tax control purposes. The Commission concluded that, given that this issue had recently been the subject of debate with the Member States, it was too early to raise this issue again with them.

3.3 The Ombudsman notes that, according to the Preamble of Directive 2001/115/EEC, the conditions previously in force for invoicing listed in Article 22(3) of the Sixth VAT Directive(27) were relatively few in number and the Member States were empowered to define the most important conditions. However, in the report on the second phase of the SLIM exercise («Simpler Legislation for the Internal Market»), the Commission recommended that a study be carried out to determine which details should be required for VAT purposes when drawing up an invoice. Therefore, in order to ensure that the internal market would work properly, Member States decided to draw up a list of the information that should appear on invoices for the purposes of VAT(28).

The Ombudsman notes that Article 18(1)(a) of the Sixth VAT Directive, includes the rules governing the exercise of the right to deduct VAT in the general case. Paragraph 1(a) sets out the following:

"[t]o exercise his right to deduct, the taxable person must:

(a) in respect of deductions under Article 17(2)(a), hold an invoice, drawn up in accordance with Article 22(3)".

The Ombudsman notes that, before being amended by Directive 2001/115/EC, Article 22(3) of the Sixth VAT Directive set out that the Member States should determine the criteria for considering whether a document served as an invoice in respect of the goods or services supplied by one taxable person to another. However, Article 22(3)(b) of Directive 77/388/EEC, as modified by Directive 2001/115/EC sets out the following:

"[w]ithout prejudice to the specific arrangements laid down by this Directive, only the following details are required for VAT purposes on invoices issued under the first, second and third subparagraphs of point (a):

(...)

-a sequential number, based on one or more series, which uniquely identifies the invoice,

(...)."

3.4 The Ombudsman notes that the Commission has justified its position not to pursue further inquiries into the complainant's allegations on the grounds that the Spanish authorities did not appear to have infringed the relevant EC VAT provisions. From the information available, it appears that, before 1 January 2004, Member States had freedom to require, if they so wished, an invoice number for VAT deduction purposes. The Ombudsman therefore, takes the view that the Commission was entitled to conclude that the Spanish administrative decision of 5 March 2003, according to which the presentation of a complete invoice with an invoice number was required for VAT deduction purposes, was in compliance with EC legislation at that time.

The Ombudsman also notes that, as from 1 January 2004, Directive 2001/115/EC harmonised, at the Community level, the information that must appear on invoices for the purposes of VAT. A sequential number, based on one or more series, is one such piece of information.

The Ombudsman is mindful of the fact that no information has been produced in the course of his inquiry which could lead him to question the Commission's interpretation of Directive 77/388/EEC and its conclusion that the Spanish authorities have acted in accordance with EC law. In particular, the Ombudsman notes that the case-law of the Community Courts has indicated, that, even before the modification of the Sixth VAT Directive, Member States could make the right to a VAT deduction subject to the presentation of an invoice containing certain information, provided that, by doing so, they do not render impossible or excessively difficult the exercise of the right to a VAT deduction(29). The Ombudsman notes that the Commission considers that the invoice number, based on one or more series, does not render impossible or excessively difficult the exercise of the right to a VAT deduction, but rather, they act as tax control elements.

In light of the above, the Ombudsman takes the view that the Commission's interpretation of the Sixth VAT Directive appears to be reasonable and in conformity with the case-law of the Community Courts and the principle of proportionality. The Ombudsman recalls, however, that the Court of Justice is the highest authority as regards the interpretation of Community law.

Conclusion

On the basis of the Ombudsman's inquiries into this case, the Ombudsman finds no maladministration as regards the complainant's allegation.

The Ombudsman finds no maladministration as regards the Commission's failure to register the complainant's correspondence.

The Ombudsman therefore closes the case.

The President of the Commission will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Decision of 5 March 2003 by the Spanish Central Economic and Administrative Court ("Tribunal Económico-Administrativo Central"), published in Gaceta Fiscal, n° 224, in October 2003.

(2) Spanish legislation on VAT (Ley 37/1992 de 28 de diciembre del Impuesto sobre el Valor Añadido).

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

(4) Sentencia de la Audiencia Nacional de 11 de marzo de 2003, published in Impuestos, n°20, October 2003.

(5) OJ 2002 L 15, p. 24.

(6) Joined Cases 123/87 and 330/87 Jeunehomme, and Others v Belgium [1988] ECR 4517.

(7) Case C-90/02 Finanzamt Gummersbach v Gerhard Bockemühl [2004] ECR I-3303.

(8) Under the so-called "reverse charge procedure", the purchaser of the goods or services, rather than the seller of the goods or the provider of services, wil l be liable to account for the VAT on the sale of goods or the provision of the services.

(9) Under the general regime, the seller of the goods, or the provider of services, wil l be liable to account for the VAT on the sale of goods or the provision of the services.

(10) Case C-262/99 Paraskevas Louloudakis v Greece [2001] ECR I-5547; Case C-36/94 Siesse [1995] ECR I-03573; Case C-123/99 Andrade [2000] ECR I-11083.

(11) Judgment of the Spanish Supreme Court of 16 July 2003; Judgment of the Audiencia Nacional of 11 March 2003; Judgement of the High Court of Castilla-León of 29 April 2005; Judgment of the High Court of Asturias of 22 March 2005; Judgment of the High Court of Madrid of 27 May 2004, among others.

(12) Case C-320/03 Commission v Austria [2005] ECR I-9871; Case C-446/03 Marks & Spencer [2005] ECR I-10837.

(13) OJ 2002 C 244, p. 5.

(14) OJ 2002 L 15, p. 24.

(15) Joined Cases 123/1987 and 330/1987 Jeunehomme and Others v Belgium [1988] ECR 4517.

(16) Case C-90/02 Finanzamt Gummersbach v Gerhard Bockemühl [2004] ECR I-3303.

(17) The ruling referred to the "reverse charge procedure" rather than to the general VAT regime.

(18) The Commission explained that, according to Article 3 of the 2002 Communication: "[a]ny correspondence which is likely to be investigated as a complaint shal l be recorded in the central registry of complaints kept by the Secretariat-General of the Commission."

(19) OJ 2002 C 244, p. 5.

(20) According to Article 3 of the 2002 Communication: "[c]orrespondence shall not be investigated as a complaint by the Commission, and shall therefore not be recorded in the central registry of complaints, if: (. . .) it sets out a grievance with regards to which the Commission has adopted a clear, public and consistent position, which shal l be communicated to the complainant."

(21) The complainant referred to the Protocol on the application of the principles of subsidiarity and proportionality and to the conclusions of the European Council of 15 and 16 June 2006. The complainant considered that, on the basis of these documents, the Commission should apply both the principle of subsidiarity and the principle of proportionality in the new legislative proposals, as well as in the EU legislation in force.

(22) Joined Cases C-177/99 and C-181/99 Ampafrance S.A. [2000] ECR I-7013.

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

(24) OJ 2002 C 244, p. 5.

(25) OJ 2002 L 15, p. 24.

(26) Joined Cases 123/87 and 330/87 Jeunehomme and Others v Belgium [1998] ECR 4517.

(27) In the version given in Article 28h of the Sixth VAT Directive, as last amended by Directive 2001/4/EC (OJ 2001 L22, p. 17).

(28) Fourth paragraph of the Preamble to Directive 2001/115/EC.

(29) Joined Cases 123/87 and 330/87 Jeunehomme and Others v Belgium [1988] ECR 4517.