Judgment;Summary — ECLI:EU:C:2023:415
Date: 2023-05-17
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation C-365/22 – 1 
Case C-365/22 
Request for a preliminary ruling 
Date lodged: 
7 June 2022 
Referring court: 
Cour de cassation (Belgium) 
Date of the decision to refer: 
16 May 2022 
Appellant: 
IT 
Respondent: 
État belge (Belgian State) 
  
Cour de cassation de Belgique (Court of Cassation, Belgium) 
Judgment 
… 
… IT … [contact details of the appellant], 
appellant in cassation, 
…, [representative of the appellant] 
v 
ÉTAT BELGE (BELGIAN STATE), represented by the Minster for Finance, 
rue de la Loi, 12, Brussels 
respondent in cassation, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 16. 5. 2022 – CASE C-365/22 
 
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… [representative of the respondent] 
I. Procedure before the Cour de Cassation 
The appeal on a point of law has been brought against the judgment delivered on 
1 March 2019 by the Cour d’appel de Liège (Court of Appeal, Liège). 
… [procedural aspects] 
II. Facts of the case and background to the proceedings 
In so far as they are apparent from the judgment under appeal and from the 
documents to which the Cour de Cassation may have regard, the facts of the case 
can be summarised as follows: 
Since 1 October 2013, the appellant has been identified for the purposes of value 
added tax in respect of a business activity consisting in selling second-hand 
vehicles and wrecks; it purchases, among other things, scrapped (written-off) 
vehicles from insurance companies and resells them to third parties as wrecks or 
‘for parts’. 
In 2015, the appellant underwent an inspection which resulted in a statement of 
adjustment on account of infringements of the rules on VAT deduction and of the 
margin scheme; the taxing officer excluded invoices mentioning the words ‘cars 
sold for parts’ or invoices relating to wrecks from the margin scheme. 
The judgment under appeal upholds this position. 
III. The ground of appeal 
In the application for review, … the appellant puts forward a single ground of 
appeal. 
IV. The decision of the Cour de Cassation 
The ground of appeal: 
The second limb: 
ÉTAT BELGE (BELGIAN STATE) 
 
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Under the first subparagraph of Article 1(2) of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax, the principle of the 
common system of value added tax entails the application to goods and services of 
a general tax on consumption exactly proportional to the price of the goods and 
services, however many transactions take place in the production and distribution 
process before the stage at which the tax is charged. 
According to recital 51 of the directive, it is appropriate to adopt a Community 
taxation system to be applied to second-hand goods, works of art, antiques and 
collectors’ items, with a view to preventing double taxation and the distortion of 
competition as between taxable persons. 
Article 311 of the directive defines, in paragraph 1(1), second-hand goods as 
movable tangible property that is suitable for further use as it is or after repair, 
other than works of art, collectors’ items or antiques and other than precious 
metals or precious stones as defined by the Member States and, in paragraph 1(5), 
taxable dealer as any taxable person who, in the course of his economic activity 
and with a view to resale, purchases, or applies for the purposes of his business, or 
imports, second-hand goods. 
Article 313(1) provides that in respect of the supply of second-hand goods carried 
out by taxable dealers, Member States are to apply a special scheme for taxing the 
profit margin made by the taxable dealer under the conditions laid down, 
including the condition that the goods have been supplied to the taxable dealer by 
one of the persons listed in Article 314 of the directive. 
Those provisions are transposed by Article 58(4) of the Code de la taxe sur la 
valeur ajoutée (Value Added Tax Code) and Article 1 of Arrêté royal no 53 du 23 
décembre 199[4] relatif au régime particulier d’imposition de la marge 
bénéficiaire applicable aux biens d’occasion, objets d’art, de collection ou 
d’antiquité (Royal Decree No 53 of 23 December 1994 on the special scheme for 
taxing the profit margin applicable to second-hand goods, works of art, collectors’ 
items or antiques). 
The judgment under appeal holds that the appellant ‘wrongly relies on the 
judgment delivered by the Court of Justice of the European Union on 18 January 
2017 (Sjelle Autogenbrug I/S v Skatteministeriel) in order to claim that its vehicles 
sold “for parts” are not excluded from that scheme’ because ‘the case at issue 
related … to parts first removed by the taxable person before being resold as they 
are, not to vehicles resold “for parts”, without those parts being tailored for 
individual needs’. 
The judgment under appeal notes that although, according to the abovementioned 
judgment, ‘the concept of “second-hand goods” does not exclude “movable 
tangible property that is suitable for further use as it is or after repair, coming from 
other property in which it was incorporated as a component”’ and although ‘in 
order to be characterised as “second-hand goods”, it is only necessary that the 
REQUEST FOR A PRELIMINARY RULING OF 16. 5. 2022 – CASE C-365/22 
 
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used property has maintained the functionalities it possessed when new, and that it 
may, therefore, be reused as it is or after repair’, the appellant ‘did not trade in 
second-hand parts at all, but in cars, even though some of its invoices mentioned 
that the cars were “sold for parts”’. It concludes that ‘it is therefore in respect of 
the goods sold, namely motor vehicles, that it must be ascertained whether they 
have maintained the functionalities they possessed when new and that they are 
therefore suitable for reuse as they are or after repair’. 
It holds, first, that ‘this is clearly not the case for the vehicles sold by [the 
appellant] “for parts” since these words objectively show that the vehicle is in 
principle no longer suitable for reuse as it is’ and that ‘it is indeed the objective 
circumstances in which the resale transaction took place that must be taken into 
account’ and, second, that ‘as far as the other vehicles are concerned, if they have 
been reduced to wrecks, it is not evident how they could be described as “second-
hand goods” as they cannot be put to further use having maintained the 
characteristics they possessed when new and their use can now be limited only to 
the reuse of certain parts and the materials from which they are made’. 
Because a question concerning the interpretation of Article 311(1)(1) of the 
abovementioned directive has been raised, the question set out in the operative 
part of the present judgment should be referred to the Court of Justice of the 
European Union for a preliminary ruling. 
On those grounds, 
The Court 
Stays the proceedings until the Court of Justice of the European Union has given 
an answer to the following question referred for a preliminary ruling: 
Is Article 311(1)(1) of Council Directive 2006/112/EC of 28 November 2006 on 
the common system of value added tax to be interpreted as meaning that end-of-
life motor vehicles purchased from persons referred to in Article 314 of the 
directive by an undertaking selling second-hand vehicles and wrecks, which are 
intended to be sold ‘for parts’ without the parts having been removed from them, 
constitute second-hand goods within the meaning of that provision? 
… [procedural wording]