33The German Government maintains that the action is unfounded, in the first place because Article 2 of the Sixth Directive is neither an obligation nor a prohibition. That provision, which provides that the transactions mentioned are to be ‘subject’ to VAT, does no more than define the basis of assessment, that is, what is taxable (‘Steuerbarkeit’), and not liability to tax (‘Steuerpflichtigkeit’) (see Case C-158/98 Coffeeshop ‘Siberië’ [1999] ECR I-3971, paragraphs 14, 21 and 23). It is not possible to infringe a provision which contains only a mere definition. The liability to tax of the activities referred to in Article 2 is possible only where that provision is read in conjunction with Article 13(A) of the Sixth Directive, which sets out the criteria for the exemptions laid down for certain activities. Therefore the complaint advanced by the Commission in its application cannot be upheld.
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