# C_2006212EN.01000502.xml

| 2.9.2006 | EN | Official Journal of the European Union | C 212/5 |
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2.9.2006

EN

Official Journal of the European Union

C 212/5

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Judgment of the Court (Third Chamber) of 15 June 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Heintz van Landewijck SARL v Staatssecretaris van Financiën

(Case C-494/04) (1)

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(Tax provisions - Harmonisation of laws - Directive 92/12/EEC - Excise duty - Tax stamps - Sixth VAT Directive - Articles 2 and 27 - Disappearance of excise stamps)

(2006/C 212/09)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Heintz van Landewijck SARL

Applicant:

Defendant: Staatssecretaris van Financiën

Defendant:

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 27(1) and (5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Ninth Directive 78/583/EEC (OJ 1978 L 194, p. 16) — Interpretation of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) — Compatibility of national law with Community law — Tax labels for tobacco products — Disappearance before use

Operative part of the judgment

The Court:

| 1. | Neither Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products nor the principle of proportionality preclude Member States from adopting legislation which does not provide for reimbursement of the amount of excise duty paid, where the excise stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, which thereby places the financial responsibility for the loss of tax stamps on the purchaser. |
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1.

Neither Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products nor the principle of proportionality preclude Member States from adopting legislation which does not provide for reimbursement of the amount of excise duty paid, where the excise stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, which thereby places the financial responsibility for the loss of tax stamps on the purchaser.

| 2. | Article 27(5) of Sixth 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 must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late. |
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2.

Article 27(5) of Sixth 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 must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late.

| 3. | Article 27(1) and (5) of Sixth Directive 77/388 must be interpreted as meaning that a derogating scheme for collecting VAT by means of tax stamps, such as that established by Article 28 of the Law on turnover tax of 28 June 1968 (Wet op de omzetbelasting), is compatible with the requirements laid down by the provisions of the directive and does not exceed what is necessary for the simplification of the procedure for charging the tax. |
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3.

Article 27(1) and (5) of Sixth Directive 77/388 must be interpreted as meaning that a derogating scheme for collecting VAT by means of tax stamps, such as that established by Article 28 of the Law on turnover tax of 28 June 1968 (Wet op de omzetbelasting), is compatible with the requirements laid down by the provisions of the directive and does not exceed what is necessary for the simplification of the procedure for charging the tax.

| 4. | The absence of an obligation to reimburse amounts paid for the purchase of excise stamps which correspond to VAT, where those stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, is not incompatible with Sixth Directive 77/388 and, in particular, with Article 27(1) and (5) thereof. |
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4.

The absence of an obligation to reimburse amounts paid for the purchase of excise stamps which correspond to VAT, where those stamps disappeared before having been affixed to the tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, is not incompatible with Sixth Directive 77/388 and, in particular, with Article 27(1) and (5) thereof.

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(1)  OJ C 45, 19.02.2005.

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