Case C-434/03: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 10 October 2003 in the appeal in cassation brought by P. Charles and T.S. Charles-Tĳmens against the Inspector of Taxes
Date: 2003-12-13
Institutions: Court of Justice
Subjects: VAT, intermediate goods, interpretation of the law, purchase

13.12.2003

EN

Official Journal of the European Union

C 304/15

Pleas in law and main arguments

In so far as it makes the use of construction products including
tubes of polyethylene imported from other Member States
subject to an approval procedure, Article 17 of Decree-Law
No 38/382 constitutes a measure having effect equivalent to a
quantitative restriction on imports prohibited by Article 28
EC. The Portuguese authorities have not explained why tubes
of polyethylene should constitute a danger to human life or
health and have not put forward any other overriding reasons.

The authorities of the Member States are not entitled to
demand, where there is no need, technical or chemical analyses
or laboratory tests when those analyses or tests have already
been performed in another Member State and the results are
available to those authorities or can, at their request, be made
available.

The Portuguese authorities are obliged, in accordance with the
Court of Justice’s case-law, to take into account certificates
issued by certification bodies in other Member States which,
although they are not members of the European Association
for Technical Approval in Construction, are recognised to be
suitable bodies for the purposes of certifying the products in
question. In this instance the Portuguese authorities have failed
to do so.

(1) OJ L 321 of 30 December 1995, p. 1.

— there is no possibility of choosing to include capital
goods, or goods or a service treated as such, wholly in
the assets of an undertaking where the acquirer uses those
goods or that service both within the undertaking and
outside it (in particular for private purposes);

— there is, related to this, also no possibility of deducting
directly and wholly the tax charged on the acquisition of
those goods or that service; and

— there is no provision for the charging of VAT as intended

in Article 6(2)(a) of the Sixth Directive,

compatible with the Sixth Directive — in particular
Article 17(1), (2) and (6) and Article 6(2) thereof?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ L 145 of 13.6.1977, p. 1).

Reference for a preliminary ruling by the hof van beroep
te Antwerpen by interlocutory judgment of that Court of
7 October 2003 in the proceedings between 1. British
American Tobacco International Limited, 2. N.V. Newman
Shipping & Agency Company, and the Belgian State,
Ministry of Finance

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 10 October
2003 in the appeal in cassation brought by P. Charles and
T.S. Charles-Tijmens against the Inspector of Taxes

(Case C-435/03)

(2003/C 304/23)

(Case C-434/03)

(2003/C 304/22)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 10 Octo-
ber 2003, received at the Court Registry on 13 October 2003,
for a preliminary ruling in the appeal in cassation brought by
P. Charles and T.S. Charles-Tijmens against the Inspector of
Taxes on the following question:

Reference has been made to the Court of Justice of the
European Communities by interlocutory judgment of the hof
van beroep te Antwerpen (Court of Appeal, Antwerp) of
7 October 2003, received at the Court Registry on 14 October
2003, for a preliminary ruling in the proceedings between
1. British American Tobacco International Limited, 2. N.V.
Newman Shipping & Agency Company, and the Belgian State,
Ministry of Finance on the following questions:

1.

Can there be a ‘supply of goods’ within the meaning of
the Sixth VAT Directive (1), with the consequence that
VAT can be charged:

— in the absence of any consideration?

Is a statutory scheme such as that set out in section 3.4.1
above, which was already in existence before the Sixth
Directive (1) was adopted and under which:

— in the absence of transfer of the right to dispose

freely of the goods as owner?