4.

First, as regards the calculation of the amount on which the VAT on importation should be charged, the arguments put before the Court may be summarized as follows : The Netherlands Government argues that the VAT on importation should be based on the value of the goods at the time of importation, that is to say including all taxes, in accordance with the Netherlands Law on Turnover Tax of 1968 and Article 11 B (3) (a) of the Sixth Directive, which provides that: ‘The taxable amount shall include, in so far as they are not already included: (a) taxes, duties, levies and other charges due outside the country of importation and those due by reason of importation, excluding the value-added tax to be levied’. The Netherlands Government further points out that on the domestic market transactions between private persons and taxable persons concerning used goods are subject to the same rules. That line of argument cannot be accepted, for the following reasons: The conclusion to be drawn from the Court's observations in Schul I is that the VAT paid in the Member State of exportation should not be included in the taxable amount. In that judgment the Court ruled that, in the circumstances of the case (where there was no remission of tax on exportation but VAT was charged on importation even though the same transaction was not subject to VAT within the country), the VAT already burdening the product at the time of importation had to be deducted from the amount of VAT on importation, failing which ‘the tax on importation would in fact be an additional charge burdening imported products more heavily than similar domestic products’ (paragraph 31, emphasis added). That solution is based especially upon Article 95, ‘which prohibits not only the direct but also the indirect imposition of internal taxation on products from other Member States in excess of that on similar domestic products’ (paragraph 32, emphasis added). The rule applied by the Court could be described as follows: a tax on a tax is not permissible. The inclusion in the taxable amount of the amount of VAT paid in the Member State of exportation would be inconsistent with that principle and would constitute an ‘additional charge’, indirectly burdening imported products more heavily than similar domestic products. As regards the argument based on Article 11 B 3 (a) of the Sixth Directive, it should be pointed out that that directive, except for Article 2 (2), which provides that all imports are subject to payment of VAT (Schul I, paragraph 15), does not apply to transactions involving secondhand goods effected by nontaxable persons. Consequently any argument based on the directive must be treated with caution where it is inconsistent with the principle laid down by Article 95 of the Treaty, as interpreted by the Court (Schul I, paragraph 38). Moreover, as the Court pointed out in Scimi I (paragraph 10), the Sixth Directive established a system whereby VAT is chargeable on each transaction only after deduction of the amount of VAT borne directly on the various price components. In order for that system to be applied consistently, the taxable amount must be calculated on the same basis at each marketing stage. In that perspective Article 11 B 3 (a) cannot be interpreted as requiring that the VAT paid in the Member State of exportation should be included in the taxable amount on which the VAT on importation is charged. Any other view would be inconsistent with the essential principle of the neutrality of internal taxation, since imported products would be taxed more heavily than domestic products. In short, as has been stressed by the plaintiff in the main action, the French Government and the Commission, the inclusion in the value of goods on importation of the VAT paid at the preceding stage would result in double taxation since the VAT on importation would be partly based on the VAT paid in the Member State of exportation. The answer to the first question asked by the Hoge Raad der Nederlanden should therefore be that, in the circumstances of the case, the VAT on importation must be calculated, in accordance with the principle laid down by Article 95 as interpreted by the Court in its ruling of 5 May 1982, on the basis of the value of the product at the time of importation, after deducting from that value the residual part of the VAT paid in the Member State of exportation.