Opinion of the Advocate General — ECLI:EU:C:2024:700
Date: 2024-09-05
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-331/23 – 1 
Case C-331/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 May 2023 
Referring court: 
Rechtbank van eerste aanleg Oost-Vlaanderen Afdeling Gent 
(Belgium) 
Date of the decision to refer: 
22 May 2023 
Applicant: 
Dranken Van Eetvelde NV 
Defendant: 
Belgische Staat 
  
Subject matter of the main proceedings 
The dispute in the main proceedings concerns VAT fraud involving falsified 
invoices. 
Subject matter and legal basis of the request 
In the present request for a preliminary ruling under Article 267 TFEU, the 
referring court essentially asks the Court of Justice to rule on Article 51bis(4) of 
the Belgische btw-wetboek (Belgian VAT Code; ‘the WBTW’) in the light of the 
principles of proportionality and neutrality and Article 205 of the VAT Directive. 
It also seeks to ascertain whether the cumulation of administrative and criminal 
penalties in the present case is compatible with the principle ne bis in idem 
enshrined in Article 50 of the Charter. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-331/23 
 
2  
Questions referred for a preliminary ruling 
1. Does Article 51bis(4) of the WBTW infringe Article 205 of Directive 
2006/112 in conjunction with the principle of proportionality in so far as that 
provision provides for unconditional overall liability and does not allow the 
court to assess liability on the basis of each person’s contribution to the tax 
fraud? 
2. Does Article 51bis(4) of the WBTW infringe Article 205 of Directive 
2006/112 on the common system of VAT, read in conjunction with the 
principle of VAT neutrality, if that provision is to be interpreted as meaning 
that a person is jointly and severally liable to pay VAT in the place of the 
legal debtor, without any account having to be taken of the deduction of 
VAT that can be claimed by the legal debtor? 
3. Must Article 50 of the Charter of Fundamental Rights of the European 
Union be interpreted as not precluding national legislation which permits the 
cumulation of (administrative and criminal) penalties of a criminal nature, 
resulting from different proceedings, in respect of offences which are 
materially identical yet occurred over consecutive years (but which, in 
criminal law, would be regarded as a continuing offence with unity of 
purpose), and where the offences are subject to administrative prosecution in 
respect of one year and criminal prosecution in respect of another year? Are 
those offences not regarded as inseparable because they occurred over 
consecutive years? 
4. Must Article 50 of the Charter of Fundamental Rights of the European 
Union be interpreted as not precluding national legislation under which 
proceedings may be brought against a person for the imposition of an 
administrative fine of a criminal nature in respect of an offence for which he 
or she has already been finally convicted under criminal law, the two sets of 
proceedings being conducted entirely independently of one another and the 
only guarantee that the gravity of the entirety of the penalties imposed is 
commensurate with the gravity of the offence in question consisting in the 
fact that the tax court may carry out a substantive review of proportionality, 
even though the national legislation does not lay down any rules in that 
regard, nor does it lay down any rules allowing the administrative authority 
to take account of the criminal penalty already imposed? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Article 50 (ne bis in idem). 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Article 205 (joint and several liability for payment of VAT). 
DRANKEN VAN EETVELDE 
 
3 
Provisions of national law relied on 
Grondwet (the Constitution), Articles 10 (principle of equality), 11 (prohibition of 
discrimination) and 172 (principle of fiscal equality). 
Btw-wetboek (VAT Code), Article 51bis(4) (joint and several liability for 
payment of VAT), Article 70(1) and (2) (fines), Article 84ter (mandatory 
notification of suspicions of tax evasion in the case of an extended limitation 
period), Article 85(1) (recovery). 
Wetboek van strafvordering (Code of Criminal Procedure), Article 29(3) (the tax 
authorities must report indications of fraud to the public prosecutor’s office). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a drinks merchant. The Belgian tax authorities examined its VAT 
returns for the financial year 2011. Irregularities were found during this process. 
The applicant is alleged to have issued false invoices for the supply of drinks to 
private individuals. In reality, the drinks were supplied to taxable customers (hotel 
and restaurant operators) who resold them on the black market. 
2 The same infringements had already been found during two previous tax 
inspections (for the financial years 2001 to 2002 and 2004), and the applicant had 
been convicted in that respect by judgments of 10 April 2008 and 17 November 
2008. On each occasion, a fine was imposed on the applicant. 
3 On 21 December 2018, the applicant lodged an objection with the referring court 
to an enforcement order issued on 10 December 2018 to recover VAT and fines 
due. 
The essential arguments of the parties in the main proceedings 
4 The applicant argues that, in accordance with the case-law of the Court of Justice, 
no one can be held unconditionally liable for someone else’s fraud (as is 
nevertheless the case with Article 51bis(4) of the WBTW). Such strict liability 
goes beyond what is necessary to safeguard the public exchequer’s rights and to 
combat tax fraud (see judgments of the Court of Justice of the European Union of 
21 December 2011 and of 11 May 2006 and other case-law referred to in those 
judgments). This infringes the principle of proportionality. 
5 The defendant considers that unconditional liability for the payment of the VAT 
debt is not contrary to the principles of proportionality and VAT neutrality and 
that the principle ne bis in idem is not infringed. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-331/23 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
6 Since Article 51bis(4) of the WBTW provides for an unconditional liability for the 
payment of VAT, this provision could be contrary to the principle of 
proportionality and/or the principle of VAT neutrality. 
7 Moreover, the principle ne bis in idem has also been raised. According to that 
principle, the same person cannot be tried a second time in criminal proceedings 
for the same offence, following a first definitive trial of a criminal nature. That 
principle would be applied differently depending on whether it relates to income 
tax or VAT. 
8 Finally, the issue of the cumulation of an administrative penalty and a criminal 
penalty linked to the unity of intention is also an important question of law which 
must be assessed in the light of the general principles of EU law. 
9 An answer to those questions is important in order to determine whether the 
applicant must pay the taxes evaded.