Provisional text
JUDGMENT OF THE COURT (Ninth Chamber)
12 December 2024 (*)
( Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 205 – Joint and several liability for tax debts owed by a third party – Conditions and scope of liability – Fight against VAT fraud – Joint and several liability for the payment of VAT which does not allow an assessment to be made on the basis of the contribution of each taxable person in the tax evasion – Principle of proportionality – Article 50 of the Charter of Fundamental Rights of the European Union – Principle non bis in idem – Criteria for application – Facts relating to different tax years against which administrative or criminal proceedings are brought – Continuing offence with unity of purpose – Facts not identical )
In Case C‑331/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium), made by decision of 22 May 2023, received at the Court on 25 May 2023, in the proceedings
Dranken Van Eetvelde NV
v
Belgische Staat,
THE COURT (Ninth Chamber),
composed of C. Lycourgos (Rapporteur), President of the Third Chamber, acting as President of the Ninth Chamber, S. Rodin and O. Spineanu-Matei, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Dranken Van Eetvelde NV, by H. Vandebergh, advocaat,
–        the Belgian Government, by P. Cottin, A. De Brouwer and C. Pochet, acting as Agents,
–        the European Commission, by N. Cambien and M. Herold, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 5 September 2024,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 205 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’), the principles of proportionality and fiscal neutrality and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2        The request has been made in proceedings between Dranken Van Eetvelde NV and Belgische Staat, Federale Overheidsdienst Financiën (Federal Public Finance Service, Belgium) (‘SPF Finances’), concerning the joint and several liability of Dranken Van Eetvelde for the payment of value added tax (VAT).
Legal context
European Union law
3        Article 193 of the VAT Directive states:
‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199b and Article 202.’
4        Articles 194 to 200 and 202 to 204 of that directive provide, in essence, that persons other than a taxable person carrying out a taxable supply of goods or services may or shall be regarded as liable for VAT.
5        Under Article 205 of that directive, ‘[i]n the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT’.
Belgian law
6        Article 51bis(4) of the wet tot invoering van het Wetboek van de belasting over de toegevoegde waarde (Law establishing the Value Added Tax Code) of 3 July 1969 (Belgisch Staatsblad,
17 July 1969, p. 7046), in the version applicable to the dispute in the main proceedings (‘the VAT Code’), provides:
‘4.      Taxable persons shall be jointly and severally liable, with the person who owes the tax on the basis of Article 51(1) and (2), for the payment of the tax if, at the time when they effected a transaction, they knew or should have known that non-payment of the tax with the intention of evading the tax was occurring or would occur in the chain of transactions.’
7        Article 70(1) and (2) of the Consumer Code provides:
‘1.      In respect of any infringement of the obligation to pay the tax, a fine equal to twice the tax evaded or paid late shall be incurred.
That fine shall be owed individually by each person with an obligation to pay the tax on the basis of Article 51(1), (2) and (4), Articles 51bis, 52, 53, 53ter, 53nonies, 54, 55 and 58 or the decrees implementing those articles.
…
2.      If the invoice or equivalent document required under Articles 53, 53decies and 54 or the decrees implementing those articles was not issued or contains incorrect information regarding the identification number, name or address of any of the parties to the transaction, regarding the nature or quantity of the goods supplied or services provided, or regarding the price or ancillary costs, a fine shall be incurred amounting to twice the tax due on that transaction or EUR 50, whichever is higher.
That fine shall be payable individually by the supplier or service provider and by the other party to the contract. However, it shall not be applied if the irregularities are to be considered purely accidental, in particular by reason of the number and scale of the transactions for which no proper document was issued compared with the number and scale of the transactions which were the subject of proper documents, or where the supplier or service provider has no serious reasons to doubt the other party’s status as a non-taxable person.
Where a person incurs both the fine provided for in paragraph 1 and the fine provided for in paragraph 2 in respect of the same infringement, only the latter shall be applicable.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
8        The Belgian tax authorities carried out a tax investigation at Dranken Van Eetvelde, a company governed by Belgian law active in the wholesale and retail trade in beverages, concerning the application of VAT for the period from 1 January to 31 December 2011. They found a number of infringements of VAT legislation and regulations, which were notified to that company on 3 December 2018.
9        Dranken Van Eetvelde was then the subject of a demand for payment, issued on 10 December 2018 and declared enforceable on 11 December 2018, by which it was ordered to pay an additional VAT assessment of EUR 173 512.56 (that is to say, EUR 141 665.30 in respect of joint and several liability and EUR 31 847.26 for the refund of VAT on the basis of improperly issued credit notes), a fine of EUR 347 000 (that is to say, EUR 173 512.56 x 200%) in respect of false information on the invoices issued, and a fine of EUR 283 320 (that is to say, 141 665.30 x 200%) for non-payment of VAT.
10      In the report drawn up by the enforcement officer in the course of that investigation, it was stated that Dranken Van Eetvelde had already been the subject of previous audits, taxation and court sentences in respect of the same infringements relating to the periods from 1 January 2000 to 31 December 2002 and from 1 January 2003 to 31 December 2004. In that regard, by judgments of 10 April and 17 November 2008, it was recognised that that company had organised a system of issuing false invoices under which the goods mentioned on those invoices were delivered not to the customers mentioned on those invoices, but to taxable customers, who were operators of cafés, hotels or restaurants. Those proceedings led to the imposition of fines on that company, which have become final.
11      On 21 December 2018, Dranken Van Eetvelde lodged an objection to the demand for payment of 10 December 2018 before the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium), which is the referring court.
12      In parallel, criminal proceedings were brought against that company for offences committed in the years 2012 to 2014. By judgment of 18 June 2019, the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling
(Court of First Instance, East Flanders, Dendermonde Division, Belgium), sitting in proceedings relating to criminal matters, ordered that company to pay a fine of EUR 20 000 for tax forgery and use of false documents during the years 2012 to 2014 in relation to VAT and income tax, as well as for failure to declare income for corporation tax and failure to declare sales and the VAT due on those sales, all with fraudulent or deliberate intent to cause damage. That deliberate element was found to exist on the ground that Dranken Van Eetvelde had made a substantial and essential contribution to a fraud scheme, which had enabled its business customers to sell beverages ‘on the black market’.
13      In the case before the referring court, first, Dranken Van Eetvelde submits that, in accordance with the case-law of the Court, no one can be held unconditionally liable for someone else’s fraud. Such strict liability exceeds the limits of what is necessary to preserve the rights of the public exchequer and combat tax evasion. This results in a breach of the principle of proportionality.
14      However, the referring court states that Article 51bis(4) of the VAT Code does provide for such strict liability, which is unconditional in nature, and may therefore be contrary to the principle of proportionality and/or VAT neutrality. Thus, the answer to the question whether that provision is contrary to Article 205 of the VAT Directive, read in the light of those principles, is important for assessing whether or not Dranken Van Eetvelde is required to pay the VAT evaded.
15      Second, the referring court observes that the application of the principle non bis in idem would differ depending on whether that principle concerns income tax or VAT. The question of the duplication of administrative and criminal penalties in connection with a unity of purpose requires an examination in the light of that principle, which is given concrete expression by Article 50 of the Charter.
16      In those circumstances, the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Does Article 51bis(4) of the [VAT Code] infringe Article 205 of [the VAT Directive], 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 [VAT Code] infringe Article 205 of the [VAT Directive] 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] be interpreted as not precluding national legislation which allows (administrative and criminal) penalties of a criminal nature, resulting from different proceedings, to be combined 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] 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?’
Consideration of the questions referred
The first question
17      By its first question, the referring court asks, in essence, whether Article 205 of the VAT Directive, read in the light of the principle of proportionality, must be interpreted as precluding a national provision which, in order to ensure the collection of VAT, provides for the strict joint and several liability of a taxable person other than the person who would normally be liable for that tax without, however, the court having jurisdiction being able to exercise a discretion on the basis of the contribution of the various persons involved in tax evasion.
18      As set out in Article 205 of the VAT Directive, in the situations referred to in Articles 193 to 200 and 202 to 204 of that directive, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.
19      Articles 193 to 200 and 202 to 204 of the VAT Directive form part of Section 1 of Chapter 1 of Title XI of that directive, entitled ‘Persons liable for payment of VAT to the tax authorities’. Those articles determine the persons liable for payment of VAT. Although Article 193 of that directive provides, as the basic rule, that VAT is payable by any taxable person carrying out a taxable supply of goods or services, it states however that other persons may or shall be liable for payment of VAT in the situations referred to in Articles 194 to 199b and 202 of that directive.
20      The provisions of Section 1 of Chapter 1 of Title XI of the VAT Directive, which include Article 205 of that directive, are aimed at identifying the person liable for payment of VAT in various situations. Those provisions thereby seek to ensure for the public exchequer the efficient collection of VAT from the most appropriate person in the light of the specific situation (see, to that effect, judgment of
20 May 2021, ALTI,
C‑4/20, EU:C:2021:397, paragraph 28).
21      In principle, Article 205 of the VAT Directive allows Member States to adopt, for the efficient collection of VAT, measures pursuant to which a person other than the person normally liable for that tax under Articles 193 to 200 and 202 to 204 of that directive is jointly and severally liable for payment of that tax (judgment of 20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraph 29).
22      However, since that Article 205 specifies neither the persons that Member States may designate as joint and several debtors nor the situations in which such designation may be made, it is for the Member States to determine the conditions and arrangements under which the joint and several liability provided for in that article will be incurred in compliance, in particular, with the principles of legal certainty and of proportionality (judgment of 20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraphs 31 and 32 and the case-law cited).
23      As regards the latter principle, in the light of which the referring court seeks the Court’s guidance as to the interpretation of Article 205 of the VAT Directive, while it is legitimate for the measures adopted by the Member States to seek to preserve the rights of the public exchequer as effectively as possible, they must not go further than is necessary for that purpose (see, to that effect, judgment of
20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraph 33
and the case-law cited).
24      In that context, exercise of the power conferred on Member States to designate a joint and several debtor other than the person liable for payment of the tax in order to ensure efficient collection of that tax must be justified by the factual and/or legal relationship between the two persons concerned in the light of the principles of legal certainty and of proportionality. It is for Member States to specify the particular circumstances in which a person such as the recipient of a taxable supply is to be held jointly and severally liable for payment of the tax owed by the other party to the contract (judgment of 20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraph 34).
25      In that context, it should be recalled that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by EU legislation on the common system of VAT and that the effect of the principle that the abuse of rights is prohibited is to bar wholly artificial arrangements which do not reflect economic reality and are set up with the sole aim of obtaining a tax advantage (judgment of 20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraph 35
and the case-law cited).
26      The Court has thus ruled that Article 205 of the VAT Directive allows a Member State to hold a person jointly and severally liable for payment of VAT where, at the time of the supply to it, that person knew or ought to have known that the tax payable in respect of that supply, or of any previous or subsequent supply, would go unpaid, and to rely on presumptions in that regard, provided that such presumptions are not formulated in such a way as to make it practically impossible or excessively difficult for the taxable person to rebut them with evidence to the contrary, thereby creating a system of strict liability going beyond what is necessary to preserve the public exchequer’s rights. Traders who take every precaution which could reasonably be required of them to ensure that their transactions do not form part of a chain that is fraudulent or amounts to an abuse must be able to rely on the legality of those transactions without the risk of being made jointly and severally liable to pay the VAT due from another taxable person (judgment of 20 May 2021, ALTI, C‑4/20, EU:C:2021:397, paragraph 36
and the case-law cited).
27      In the present case, first, the referring court starts from the premiss that Article 51bis(4) of the VAT Code, at issue in the dispute in the main proceedings, provides for ‘strict’ liability, which could, on that ground, be contrary to the principle of proportionality. That court alone has jurisdiction to find and assess the facts in that
dispute and to interpret and apply national law (judgment of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 36
and the case-law cited).
28      However, the Court of Justice, which is called on to provide answers of use to that court in the context of the cooperation procedure established in Article 267 TFEU, may provide guidance to the latter based on the documents relating to the main proceedings and on the written observations which have been submitted to it, in order to enable the court in question to give judgment (see, to that effect, judgment of
5 December 2023, Nordic Info,
C‑128/22, EU:C:2023:951, paragraph 81
and the case-law cited).
29      It is apparent from the documents before the Court that, under Article 51bis(4) of the VAT Code, taxable persons are to be jointly and severally liable, with the person who owes the tax for the payment of the tax if, at the time when they effected a transaction, ‘they knew or should have known that non-payment of the tax with the intention of evading the tax was occurring or would occur in the chain of transactions’.
30      In that regard, and subject to the checks to be carried out by the referring court, it must be observed that, as the Belgian Government and the European Commission state in their written observations, that provision does not impose ‘strict’ joint and several liability, which would be contrary to the principle of proportionality, within the meaning of the case-law cited in paragraph 26
of the present judgment, since the taxable person concerned becomes jointly and severally liable for payment of the VAT payable with the person who is liable for that VAT only if he or she knew or should have known that he or she was participating in VAT fraud.
31      However, it should be noted that Article 205 of the VAT Directive, read in the light of the principle of proportionality, requires that the presumption on which Article 51bis(4) of the VAT Code relies, in order to consider a taxable person jointly and severally liable for payment of the VAT due with the person who is liable for that VAT, may be rebuttable, in the sense that it is not practically impossible or excessively difficult for that taxable person to rebut that presumption with evidence to the contrary.
32      In order to rebut that presumption, the taxable person concerned must have the option of establishing that he or she took every measure which could reasonably be required of him or her to ensure that the transactions which he or she carries out are not part of the fraudulent scheme of false invoices.
33      Second, as regards the fact that Article 51bis(4) of the VAT Code requires the taxable person who is jointly and severally liable to pay the full amount of the VAT due, without allowing the court to exercise discretion on the basis of the contribution of the various persons involved in the tax evasion, it should be noted, on the one hand, that it follows from the very nature of ‘joint and several liability’, such as that provided for in Article 205 of the VAT Directive, that each person jointly and severally liable is held liable for payment of the total amount of VAT due (see, by
analogy, judgment of
18 May 2017, Latvijas Dzelzceļš, C‑154/16, EU:C:2017:392, paragraph 85).
34      On the other hand, that interpretation of the concept of ‘joint and several liability’ is consistent with the objective pursued by Article 205 of the VAT Directive, which, as noted in paragraphs 20 and 21 of the present judgment, seeks to ensure for the public exchequer the efficient collection of VAT from the most appropriate person in the light of the specific situation.
35      To require an adjustment of the obligation, for the person jointly and severally liable, to pay the VAT due, which depends on its share of liability, would mean, in particular in the event of fraud, that the public exchequer and, where applicable, the court with jurisdiction to review the action brought by that person would determine in advance the respective contributions of all the persons involved in that fraud. Apart from the fact that that approach would be contrary to the very principle of joint and several liability laid down in Article 205 of the VAT Directive, such a determination could prove particularly challenging in the case of complex fraudulent tax arrangements, characterised by a high degree of opacity.
36      It follows that Article 205 of the VAT Directive requires that the taxable person jointly and severally liable for the payment of VAT may be held liable to pay on its own the full amount of the VAT irrespective of the degree of participation of that taxable person in the tax evasion.
37      As the Belgian Government states, in essence, that interpretation is without prejudice to the possible application of the national civil law rules governing the relationship between the taxable person jointly and severally liable for payment of VAT, within the meaning of Article 51bis(4) of the VAT Code, and the taxable person normally liable for that tax, which, where relevant, would allow that first taxable person to bring proceedings against that second taxable person in order to have the total economic burden apportioned according to each person’s contribution to the tax debt.
38      In the light of the foregoing considerations, the answer to the first question is that Article 205 of the VAT Directive, read in the light of the principle of proportionality, must be interpreted as not precluding a national provision which, in order to ensure the collection of VAT, provides for the strict joint and several liability of a taxable person other than the person who would normally be liable for that tax without, however, the court having jurisdiction being able to exercise a discretion on the basis of the contribution of the various persons involved in tax evasion, provided that that taxable person has the option of establishing that he or she took every measure which could reasonably be required of him or her to ensure that the transactions which he or she carried out were not part of that evasion.
The second question
39      By its second question, the referring court asks, in essence, whether Article 205 of the VAT Directive, read in the light of the principle of fiscal neutrality, must be interpreted as precluding a national provision which imposes a joint and several obligation to pay VAT on a taxable person other than the person who would normally be liable for that tax, without account being taken of the latter’s right to deduct input VAT due or paid.
40      The right of taxable persons to deduct the VAT due or already paid on goods purchased and services received as inputs and used for the purposes of a taxable activity from the VAT which they are liable to pay is a fundamental principle of the common system of VAT. The right to deduct provided for in Article 167 et seq. of the VAT Directive is therefore an integral part of the VAT scheme and in principle may not be limited if the material and formal requirements or conditions to which this right is subject are respected by taxable persons wishing to exercise it (judgment of 24 November 2022, Finanzamt M (Scope of the right to deduct VAT),
C‑596/21, EU:C:2022:921, paragraph 21).
41      In particular, the deduction system is intended to relieve the trader entirely of the burden of VAT due or paid in the course of all his or her economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever the purpose or results of those activities, provided that they are themselves subject in principle to VAT (judgment of 24 November 2022, Finanzamt M (Scope of the right to deduct VAT),
C‑596/21, EU:C:2022:921, paragraph 22
and the case-law cited).
42      That being so, the prevention of possible tax evasion, tax avoidance and abuse is an objective recognised and encouraged by the VAT Directive, with the result that individuals cannot fraudulently or improperly avail themselves of the rules of EU law. It is therefore for national authorities and courts to refuse the right to deduct if it is established, on the basis of objective elements, that this right is being relied on for fraudulent or abusive ends (judgment of 24 November 2022, Finanzamt M (Scope of the right to deduct VAT),
C‑596/21, EU:C:2022:921, paragraph 24
and the case-law cited).
43      Thus, a taxable person is to be refused the right to deduct not only where fraud is committed by the taxable person him or herself, but also where it is established that that taxable person, to whom goods or services which served as the basis on which to substantiate the right to deduct were supplied, knew or ought to have known that, through the purchase of those goods or services, he or she was taking part in, or at least facilitated, a transaction connected with VAT fraud. Indeed such a taxable person must, for the purposes of the VAT Directive, be regarded as a participant in such fraud, whether or not he or she profits from the resale of the goods or the use of the services in the context of the taxable transactions subsequently carried out by him or her, since that taxable person, in such a situation, aids the perpetrators of that fraud and becomes their accomplice (see, to that effect, judgment of
24 November 2022, Finanzamt M (Scope of the right to deduct VAT),
C‑596/21, EU:C:2022:921, paragraph 35
and the case-law cited).
44      In the present case, it should be noted that the second question referred for a preliminary ruling concerns whether the taxable person, who is jointly and severally liable for payment of VAT in place of the person liable for that tax, pursuant to a national provision implementing Article 205 of the VAT Directive, is entitled to take into account, for the VAT which he or she must pay, the right to deduct the VAT which that person liable for the VAT may make. Furthermore, that question relates only to cases where joint and several liability for the payment of VAT stems from Article 51bis(4) of the VAT Code, which concern, by definition, cases of VAT fraud.
45      In such cases of fraud, in accordance with the case-law referred to in paragraphs 42 and 43 of the present judgment, the taxable person who is liable to pay VAT must be refused the right to deduct VAT. Consequently, in so far as that taxable person cannot claim any right to deduct that tax, such a right to deduct cannot, a fortiori, be transferred to the taxable person who is jointly and severally liable for payment of that tax under the national provision transposing Article 205 of the VAT Directive.
46      That is all the more so since, according to the wording of Article 51bis(4) of the VAT Code, the joint and several liability of a taxable person other than the person liable for the VAT is provided for only where the taxable person jointly and severally liable also knew or should have known that non-payment of the tax with the intention of evading the tax was occurring or would occur in the chain of transactions.
47      In the light of the foregoing considerations, the answer to the second question is that Article 205 of the VAT Directive, read in the light of the principle of fiscal neutrality, must be interpreted as not precluding a national provision which imposes a joint and several obligation to pay VAT on a taxable person other than the person who would normally be liable for that tax, without account being taken of the latter’s right to deduct input VAT due or paid.
The third question
48      By its third question, the referring court asks, in essence, whether Article 50 of the Charter must be interpreted as precluding national legislation which allows criminal penalties and administrative penalties of a criminal nature, resulting from different proceedings, to be combined in respect of offences which are of the same nature yet occurred over consecutive tax years, which are the subject of administrative proceedings of a criminal nature for one tax year and criminal proceedings for another tax year.
49      Article 50 of the Charter provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the [European] Union in accordance with the law’. Therefore, the principle non bis in idem prohibits a duplication both of proceedings and of penalties of a criminal nature for the purposes of that article for the same acts and against the same person (judgments of
20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 25, and of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 24).
50      The application of the principle non bis in idem is subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, second, that the prior decision and the subsequent proceedings or decisions must concern the same facts (the ‘idem’ condition) (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 28).
51      As regards the ‘idem’ condition, according to the Court’s settled case-law, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the final acquittal or conviction of the person concerned. Therefore, Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes (judgments of
20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 35, and of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 33).
52      Moreover, the legal classification under national law of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another (judgments of
20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 36, and of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraph 34).
53      The Court has observed that the ‘idem’ condition requires the material facts to be identical. By contrast, the principle non bis in idem is not intended to be applied where the facts in question are not identical but merely similar. Identity of the material facts must be understood to mean a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space (judgment of 22 March 2022, bpost, C‑117/20, EU:C:2022:202, paragraphs 36 and 37).
54      In the present case, it is apparent from the request for a preliminary ruling that the criminal penalty imposed on Dranken Van Eetvelde, which followed its conviction in the criminal proceedings closed by the judgment of the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Dendermonde (Court of First Instance, East Flanders, Dendermonde Division) of 18 June 2019, concerned VAT fraud committed during the 2012 to 2014 tax years. However, the referring court states that the administrative proceedings at issue in the main proceedings, even if they should be regarded as criminal in nature, concern VAT fraud committed during the 2011 tax year. Thus, even if it were to be considered that, during all those tax years, that company participated in the establishment of a single VAT fraud scheme, the fact remains that the criminal proceedings
and the administrative proceedings concern different tax periods.
55      Furthermore, the information provided by the referring court that, under national criminal law, the material facts established during the years 2011 to 2014 may be regarded as constituting a continuing offence with unity of purpose is irrelevant for the purposes of examining compliance with the ‘idem’ condition under EU law.
56      It follows that the facts relating to the administrative proceedings at issue in the main proceedings and those which were the subject of the criminal proceedings are not identical, with the result that the ‘idem’ condition is not satisfied. Consequently, the principle non bis in idem is not intended to apply in the present case.
57      In the light of the foregoing considerations, the answer to the third question is that Article 50 of the Charter must be interpreted as precluding national legislation which allows criminal penalties and administrative penalties of a criminal nature, resulting from different proceedings, to be combined in respect of offences which are of the same nature yet occurred over consecutive tax years, which are the subject of administrative proceedings of a criminal nature for one tax year and criminal proceedings for another tax year.
The fourth question
58      In view of the answer to the third question, it is unnecessary to reply to the fourth question.
Costs
59      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
1.      Article 205 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in the light of the principle of proportionality,
must be interpreted as not precluding a national provision which, in order to ensure the collection of value added tax, provides for the strict joint and several liability of a taxable person other than the person who would normally be liable for that tax without, however, the court having jurisdiction being able to exercise a discretion on the basis of the contribution of the various persons involved in tax evasion, provided that that taxable person has the option of establishing that he or she took every measure which could reasonably be required of him or her to ensure that the transactions which he or she carried out were not part of that evasion.
2.      Article 205 of Directive 2006/112, read in the light of the principle of fiscal neutrality,
must be interpreted as not precluding a national provision which imposes a joint and several obligation to pay value added tax (VAT) on a taxable person other than the person who would normally be liable for that tax, without account being taken of the latter’s right to deduct input VAT due or paid.
3.      Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation which allows criminal penalties and administrative penalties of a criminal nature, resulting from different proceedings, to be combined in respect of offences which are of the same nature yet occurred over consecutive tax years, which are the subject of administrative proceedings of a criminal nature for one tax year and criminal proceedings for another tax year.
[Signatures]
*      Language of the case: Dutch.