Opinion of the Advocate General — ECLI:EU:C:2006:110
Date: 2006-02-16
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 (Council Directive 92/12) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable amount (Council Directive 77/388, Art. 27(5)) 3. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable amount (Council Directive 77/388, Art. 27(1) and (5)) 4. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Taxable amount (Council Directive 77/388, Art. 27(1) and (5)) 1. Neither Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products nor the principle of proportionality preclude Member States which have made use of the power to require that products released for consumption in their territory are to carry tax markings, from adopting legislation which does not provide for reimbursement of the amount of excise duty paid, where the excise stamps disappeared before having been affixed to tobacco products, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, which thereby places the financial responsibility for the loss of tax stamps on the purchaser. A national law which allowed the purchaser of excise stamps to obtain reimbursement simply by claiming that they had gone missing would be likely to encourage abuse and evasion. The prevention of abuse and evasion is precisely one of the objectives pursued by Community law. Accordingly, national rules which place the financial responsibility for the loss of those stamps on the purchaser where tax stamps go missing, contribute to the achievement of the aim of preventing the fraudulent use of those stamps. (see paras 43-44, 46, operative part 1) 2. Article 27(5) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late. In that connection, late notification of an existing derogating measure cannot entail the same consequences as a failure to notify a new derogating measure which must be authorised by the Council. Article 27(5) of the Sixth Directive does not impose any sanction in respect of the failure to comply with the time-limit for notification. Furthermore, the purpose of that notification is not to obtain the Commission’s authorisation, but simply to enable it to become acquainted with the measure concerned and to evaluate it. (see paras 49-51, operative part 2) 3. Article 27(1) and (5) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that a derogating scheme for collecting value added tax by means of tax stamps is compatible with the requirements laid down by the provisions of the directive and does not exceed what is necessary for the simplification of the procedure for charging the tax. Article 27(1) of the Sixth Directive precludes only measures which might affect, to a non-negligible extent, the amount of tax due at the final consumption stage. The nature of the arguments that the scheme for collecting tax by means of tax stamps may lead to a variation in the tax due at the final consumption stage is not such as to support the conclusion that that scheme might affect to a non-negligible extent the amount of tax due. (see paras 57-58, 60, operative part 3) 4. The absence of an obligation to reimburse amounts paid for the purchase of excise stamps which correspond to value added tax, where those stamps disappeared before having been affixed to the goods concerned, if that disappearance is not attributable to force majeure or to an accident and if it is not established that the stamps have been destroyed or rendered permanently unusable, is not incompatible with Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes and, in particular, with Article 27(1) and (5) thereof. National rules which place the financial responsibility on the purchaser for the loss of those stamps where tax stamps go missing contribute to achieving the aim of preventing the fraudulent use of those stamps. Moreover, those national rules do not exceed what is necessary to pursue that objective, since they do not exclude any possibility of reimbursement or offsetting in other cases, such as the loss of the stamps by accident or force majeure. Furthermore, the tax stamps do not constitute, strictly speaking, the purchaser’s tax debt, but have an intrinsic value. It is therefore reasonable that the purchaser of those tax stamps should take precautions against the risk of their disappearance and, should the case arise, assume the financial consequences of that disappearance, even though that might lead, in certain cases, to double taxation of value added tax in respect of the same goods. (see paras 62-63, operative part 4)