European Court of Justice VAT cases 2006-3 - empcom.gov.in

equivalent to a customs duty on imports within the meaning of
Articles 12 and 13(2) of the Treaty.
2. VAT which a Member State levies on the importation of products
from another Member State supplied by a private person
where no such tax is levied on the supply of similar products
by a private person within the territory of the Member State of
importation constitutes internal taxation in excess of that
imposed on similar domestic products within the meaning of
Article 95 of the Treaty, to the extent to which the residual
part of the VAT paid in the Member State of exportation which
is still contained in the value of the product on importation is
not taken into account. The burden of proving facts which
justify the taking into account of the tax falls on the importer.
3. Article 2(2), of the Sixth Directive [...] is compatible with the
treaty and therefore valid since it must be interpreted as not
constituting an obstacle to the obligation under Article 95 of
the Treaty to take into account, for the purpose of applying
VAT on the importation of products from another Member
State supplied by a private person where no such tax is levied
on the supply of similar products by a private person within
the territory of the Member State of importation, the residual
part of the VAT paid in the Member State of exportation and
still contained in the value of the product when it is imported.
4. Article 95 of the treaty prohibits Member States from imposing
VAT on the importation of products from other Member States
supplied by a private person where no such tax is levied on
the supply of similar products by a private person within the
territory of the Member State of importation, to the extent to
which the residual part of the VAT paid in the Member State
of exportation and still contained in the value of the product
when it is imported is not taken into account.
[1982] ECR 1409
Case 255/81
10 June 1982
R. A. Grendel S Finanzamt für Körperschaften in Hamburg
As from 1 January 1979 it was possible for the provision concerning
the exemption from turnover tax of transactions consisting of
the negotiation of credit contained in Article 13(B)(d)(1) of the
Sixth Directive [...] to be relied upon, in the absence of the
implementation of that Directive, by a credit negotiator where he
had refrained from passing that tax on to persons following him
in the chain of supply, and the state could not claim, as against
him, that it had failed to implement the Directive.
[1982] ECR 2301
Case 222/81
1 July 1982
B.A.Z. Bausystem AG S Finanzamt München für Körperschaften
The basis of assessment referred to in Article 8(a) of the Second
Directive [...] does not include interest awarded to an undertaking
by a judicial decision where such interest has been awarded
to it by reason of the fact that the balance of the consideration
for the services provided has not been paid in due time.
[1982] ECR 2527
Case 70/83
22 February 1984
Gerda Kloppenburg S Finanzamt Leer
In the absence of the implementation of the Sixth Directive [...],
it was possible for the provision concerning the exemption of the
negotiation of credit contained in Article 13(B)(d)(1) of that
Directive to be relied upon by a credit negotiator in relation to
transactions carried out between 1 January and 30 June 1978
where he had refrained from passing that tax on to persons
following him in the chain of supply.
[1984] ECR 1075
Case 294/82
28 February 1984
Senta Einberger S Hauptzollamt Freiburg
Article 2 of the Sixth Directive [...] must be interpreted as meaning
that no import turnover tax arises upon the unlawful importation
into the community of drugs not confined within economic
channels strictly controlled by the competent authorities for use
for medical and scientific purposes. That interpretation applies
Judgments of the Court of Justice – 2
© 2006 IBFD
also to Article 2 of the Second Directive on the harmonization of
VAT.
[1984] ECR 1177
Case 324/82
10 April 1984
Commission of the European Communities – Kingdom of
Belgium
1. By retaining the catalogue price as the basis for charging VAT
on cars, as a special measure derogating from Article 11 of
the Sixth Directive, when the requirements laid down in
Article 27(5) of the Directive are not fulfilled, the Kingdom of
Belgium has failed to fulfil its obligations under the EEC Treaty;
1)
2. The remainder of the application is dismissed;
3. The Kingdom of Belgium is ordered to pay the costs.
[1984] ECR 1861
1)
As regards the Belgian system for taxing the use of “voitures de direction”
appropriated by the taxable person for his own private needs, the
Commission has not offered sufficient evidence that it was not a
genuine simplification measure or that it may have affected the amount
of tax due at the final consumption stage to an extent which was more
than negligible.
Case 42/83
10 July 1984
Dansk Denkavit A.p.S. S Ministeriet for Skatter og Afgifter
1. The Sixth Directive [...] does not prevent a Member State
from laying down in respect of VAT on imports accounting
periods and periods for payment which are different from the
periods allowed for payment of the net tax liability under the
internal system.
2. Differences in time-limits laid down by national legislation
with regard to the taxation of imports and taxation of domestic
transactions may, in certain circumstances, constitute an
infringement of Article 95 of the Treaty. Nevertheless, tax
periods which serve as a basis for calculating the net tax
position of each taxable person under the internal system
need not, as community legislation stands at present, be
taken into consideration in the comparison of the periods for
payment. Thus, there is nothing in legislation such as that
described by the national court which is capable of constituting
discrimination within the meaning of Article 95 of the
Treaty.
[1984] ECR 2649
Case 5/84
13 February 1985
Direct Cosmetics Ltd. S Commissioners of Customs and Excise
1. Where national legislation, notified under Article 27(5) of the
Sixth Directive [...] is amended by the deletion of a reference
to the criterion of protection of the national revenue, such an
amendment constitutes a “special measure” within the meaning
of Article 27(1) requiring the Member State to inform the
Commission under Article 27(2).
2. A Member State which has failed to fulfil its obligation under
Article 27(2) of the Sixth Directive by not informing the Commission
of a special measure derogating from the provisions
of Article 11(A)(1)(a) of the Directive and thus requiring the
authorization of the Council under Article 27(1) may not rely
on that measure as against an individual seeking before the
national courts the application of provisions of revenue law
adopted in conformity with Article 11(A)(1)(a) of the Directive.
[1985] ECR 617
Case 268/83
14 February 1985
D.A. Rompelman and E.A. Rompelman-Van Deelen,
Amsterdam S Minister van Financiën
The acquisition of a right to the future transfer of property rights
in part of a building yet to be constructed with a view to letting
such premises in due course may be regarded as an economic
activity within the meaning of Article 4(1) of the Sixth Directive
[...]. However, that provision does not preclude the tax administration
from requiring the declared intention to be supported by
objective evidence such as proof that the premises which it is