# C_2005217EN.01001302.xml

| 3.9.2005 | EN | Official Journal of the European Union | C 217/13 |
| --- | --- | --- | --- |

3.9.2005

EN

Official Journal of the European Union

C 217/13

---

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 14 July 2005

in Case C-435/03: Reference for a preliminary ruling from the Hof van Beroep te Antwerpen in British American Tobacco International Ltd, Newman Shipping & Agency Company NV v Belgian State (1)

1

(Sixth VAT Directive - Articles 2 and 27(5) - Turnover tax - Scope - Chargeable event and taxable amount - Supply of goods for consideration - Theft of goods from a tax warehouse)

(2005/C 217/25)

Language of the case: Dutch

In Case C-435/03: reference for a preliminary ruling under Article 234 EC from the Hof van Beroep te Antwerpen (Belgium), made by decision of 7 October 2003, received at the Court on 14 October 2003, in the proceedings between British American Tobacco International Ltd, Newman Shipping & Agency Company NV and Belgian State — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg Barthet, A. La Pergola, J.-P. Puissochet (Rapporteur) and J. Malenovský, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 14 July 2005, in which it ruled:

| 1. | The theft of goods does not constitute a supply of goods for consideration within the meaning of Article 2 of the 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, and therefore cannot as such be subject to value added tax. The circumstance that goods are, like those at issue in the main proceedings, subject to excise duty does not affect that conclusion. |
| --- | --- |

1.

The theft of goods does not constitute a supply of goods for consideration within the meaning of Article 2 of the 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, and therefore cannot as such be subject to value added tax. The circumstance that goods are, like those at issue in the main proceedings, subject to excise duty does not affect that conclusion.

| 2. | An authorisation to apply measures facilitating monitoring of the charging of value added tax, granted to a Member State on the basis of Article 27(5) of the Sixth Directive 77/388, does not empower that State to subject transactions to that tax other than those set out in Article 2 of the Directive. Such an authorisation thus cannot provide a legal basis for national legislation subjecting to value added tax the theft of goods from a tax warehouse. |
| --- | --- |

2.

An authorisation to apply measures facilitating monitoring of the charging of value added tax, granted to a Member State on the basis of Article 27(5) of the Sixth Directive 77/388, does not empower that State to subject transactions to that tax other than those set out in Article 2 of the Directive. Such an authorisation thus cannot provide a legal basis for national legislation subjecting to value added tax the theft of goods from a tax warehouse.

---

(1)  OJ C 304 of 13.12.2003.

1

---