Judgment — ECLI:EU:C:2011:871
Date: 2011-12-21
Language of the case: Dutch
Court formation: Seventh Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Persons liable to pay the tax – The right of Member States to hold jointly and severally liable for the tax a person other than the person liable to pay the tax (Article 21(3) of the Sixth Directive) (Council Directive 77/388, Art. 21(3)) Article 21(3) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 2001/115, must be interpreted as not authorising the Member States to provide that a warehouse-keeper other than a customs warehouse-keeper is jointly and severally liable for the value added tax which is owing on a supply of goods made for valuable consideration, and released from the warehouse, by the owner of the goods who is liable for the tax on those goods, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him. National measures which bring about, de facto, a system of strict joint and several liability go beyond what is necessary to preserve the public exchequer’s rights. Imposing responsibility for paying value added tax on a person other than the person liable to pay that tax, even where that person is an authorised tax warehouse-keeper, without allowing him to escape liability by providing proof that he had nothing whatsoever to do with the acts of the person liable to pay the tax must, therefore, be considered contrary to the principle of proportionality. It would clearly be disproportionate to hold that person unconditionally liable for the shortfall in tax caused by acts of a third party over which he has no influence whatsoever. The fact that the person other than the person liable to pay the tax acted in good faith, exhibiting all the due diligence of a circumspect trader, that he took every reasonable measure in his power and that his participation in fraud is excluded are important points in deciding whether that person can be obliged to account for the value added tax owed. (see paras 24, 26, 28, operative part)