Opinion of the Advocate General — ECLI:EU:C:1997:94
Date: 1997-02-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment
Tax provisions — Harmonization of laws — Turnover taxes — Common system of value added
tax — Basis of assessment — Reduced in the case of total or partial non-payment — Member
States permitted to derogate therefrom — Extent to which so permitted — Refund of the tax
excluded in case of non-payment where consideration paid in kind — Not permissible
(Council Directive 77/388, Art. 11C(1), second subpara.)
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SUMMARY — CASE C-330/95
The derogation provided for in the second
subparagraph of Article 11C(1) of the Sixth
Directive 77/388 does not authorize a Mem­
ber State which enacts provisions for the
refund of VAT in the case of total or partial
non-payment of the consideration to refuse
that refund where the unpaid consideration
is in kind, when it permits a refund where
the consideration is expressed in money.
On the one hand, since such provisions alter
the taxable amount in a manner which goes
beyond what is strictly necessary in order to
avoid the risk of tax evasion, they cannot be
justified by the aim of preventing such a risk.
On the other hand, those provisions lead to
discrimination against transactions in which
consideration is paid in kind as compared
with those in which the consideration is
expressed in money, by discouraging traders
from entering into barter contracts, when the
two situations, which are economically and
commercially speaking identical, are treated
in the same way by the Sixth Directive.
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