# C_2011194EN.01000901.xml

| 2.7.2011 | EN | Official Journal of the European Union | C 194/9 |
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2.7.2011

EN

Official Journal of the European Union

C 194/9

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Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 4 April 2011 — Daňové riaditeľstvo Slovenskej republiky v Profitube spol. s.r.o.

(Case C-165/11)

2011/C 194/12

Language of the case: Slovak

Referring court

Referring court

Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Daňové riaditeľstvo Slovenskej republiky (Tax Directorate of the Slovak Republic)

Applicant:

Defendant: Profitube spol. s.r.o.

Defendant:

Questions referred

Questions referred

| 1. | In a situation where, in 2005 and 2006, goods from a non-Member State of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not to release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is the said sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by the said sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), (1) i.e. is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive? |
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1.

In a situation where, in 2005 and 2006, goods from a non-Member State of the European Union (Ukraine) were placed in a public customs warehouse in the territory of a Member State of the European Union by an importer from that Member State, were subsequently processed in an inward processing suspension procedure in that customs warehouse, and the resulting product was not immediately exported within the meaning of Article 114 of Regulation No 2913/92 but instead was sold in that same warehouse by the processor of the goods to another company from that Member State, which did not to release it from the customs warehouse for free circulation, but subsequently returned it to the customs warehousing procedure, is the said sale of goods within the same customs warehouse still subject solely to Community customs rules, or has the legal situation been changed by the said sale to the extent that the transaction is now subject to the system under the Sixth Council Directive of 17 May 1977 (77/388/EEC), (1) i.e. is it possible, for the purpose of the system of value added tax under the Sixth Directive, to regard a public customs warehouse located in the territory of a Member State as part of the territory of the Community, or the territory of that Member State, in accordance with the definitions provided in Article 3 of the Sixth Directive?

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| 2. | In light of the doctrine of abuse of rights developed by the Court of Justice of the European Union and concerning the application of the Sixth Directive (C-255/02 Halifax), is it possible to treat the above as a situation where the applicant, by selling goods in a public customs warehouse located in the territory of the Slovak Republic, has already made supply for consideration in the Slovak Republic? |
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2.

In light of the doctrine of abuse of rights developed by the Court of Justice of the European Union and concerning the application of the Sixth Directive (C-255/02 Halifax), is it possible to treat the above as a situation where the applicant, by selling goods in a public customs warehouse located in the territory of the Slovak Republic, has already made supply for consideration in the Slovak Republic?

| 3. | If the reply to the first question is in the affirmative, in that the transaction in question is now subject to the system under the Sixth Directive, is that transaction then a chargeable event






  (a) | under Article 10(1) and (2) of the Sixth Directive, with the tax becoming chargeable as a result of the delivery of the goods in the customs warehouse located in the territory of the Slovak Republic; or |
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3.

If the reply to the first question is in the affirmative, in that the transaction in question is now subject to the system under the Sixth Directive, is that transaction then a chargeable event

(a)

under Article 10(1) and (2) of the Sixth Directive, with the tax becoming chargeable as a result of the delivery of the goods in the customs warehouse located in the territory of the Slovak Republic; or

| (b) | on the ground that, after the goods were imported from a third country (Article 10(3) of the Sixth Directive), the customs procedure ended while the goods were held in storage in that customs warehouse upon sale thereof to another person from the Member State? |
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(b)

on the ground that, after the goods were imported from a third country (Article 10(3) of the Sixth Directive), the customs procedure ended while the goods were held in storage in that customs warehouse upon sale thereof to another person from the Member State?

| 4. | Are the objectives of the Sixth Directive as expressed in the preamble thereof, or the objectives of the GATT (WTO), fulfilled if the sale of goods imported from a third country to a customs warehouse and then processed therein and sold to another person from that Member State in the customs warehouse in the territory of the Member State of the European Community is not subject to value added tax in that Member State? |
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4.

Are the objectives of the Sixth Directive as expressed in the preamble thereof, or the objectives of the GATT (WTO), fulfilled if the sale of goods imported from a third country to a customs warehouse and then processed therein and sold to another person from that Member State in the customs warehouse in the territory of the Member State of the European Community is not subject to value added tax in that Member State?

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(1)  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

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OJ 1977 L 145, p. 1.

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