Case C-435/03: 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
Date: 2003-12-13
Institutions: Court of Justice
Subjects: VAT, excise duty, interpretation of the law, storage, tax system

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?

C 304/16

EN

Official Journal of the European Union

13.12.2003

— if the goods cannot lawfully be placed on the market

The Commission claims that the Court should:

because they are stolen goods and/or contraband?

2.

3.

Is the answer to the first question different if the goods in
question are products subject to excise duty and in
particular manufactured tobaccos?

If no excise duty is charged on products which are subject
to excise duty, is it compatible with the provisions of the
Sixth VAT Directive to charge VAT in such a case?

4. May Member States supplement the categories of trans-
action subject to VAT if they lodge a notification, as
referred to in Article 27(2) or Article 27(5) of the Sixth
VAT Directive, of their intention to charge VAT at
national level in the event of theft of products subject to
excise duty from a tax warehouse, or is Article 2 of the
Sixth VAT Directive exhaustive?

5.

If a notification as referred to in Article 27(5) of the Sixth
VAT Directive relates only to the prepayment of VAT by
means of fiscal stamps, may a Member State supplement
the categories of transaction subject to VAT by, for
example, requiring the payment of VAT where products
subject to excise duty have been stolen from a tax
warehouse?

(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).

Action brought on 17 October 2003 by the Commission
of the European Communities against the Republic of
Austria

(Case C-437/03)

(2003/C 304/24)

1.

2.

declare that by granting Austrian dentists the possibility
in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on
Dentists) of engaging in their occupation under the title
‘Zahnarzt’ or ‘Zahnarzt (Dentist)’ and of making use of
the exception laid down in Article 19b of Council
Directive 78/686/EEC of 25 July 1978 (1), although the
dentists do not meet the minimum requirements under
Article 1 of Council Directive 78/687/EEC of 25 July
1978 (2) for falling within the provisions of Directives
78/686/EEC and 78/687/EEC, the Republic of Austria
has failed to fulfil its obligations under Articles 1 and 19b
of Directive 78/686/EEC and Article 1 of Directive 78/
687/EEC;

declare that by allowing, pursuant to Paragraphs 17
and 23 of the Ärztegesetz (Law on Doctors), Austrian
‘specialists in dental, oral and maxillo-facial surgery’ to
continue, in breach of Article 19b of Directive 78/686/
EEC,
to engage in their occupation under the title
‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ (special-
ists in dental, oral and maxillo-facial surgery) and by
those specialists not being placed on the same footing as
dentists inasmuch as specialists in dental, oral and
maxillo-facial surgery are entitled to engage in their
activities under the same conditions as holders of dip-
lomas, certificates or other evidence of formal qualifi-
cations in accordance with Annex A (dentists),
the
Republic of Austria has failed to fulfil its obligations
under Articles 1 and 19b of Directive 78/686/EEC;

3.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

1. D e n t i s t s

Austrian legislation has created a ‘new category of dentists’
which is not provided for in the directives. Although Austria
recognises that the situation is contrary to Community law, it
keeps it unchanged and continues to grant ‘dentists’ the right
to engage in their occupation under the professional title
‘Zahnarzt’ or ‘Zahnarzt (Dentist)’, and enables the Dentistenk-
ammer (professional association of dentists) to issue certificates
under Article 19b of Directive 78/686/EEC.

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
17 October 2003 by the Commission of
the European
Communities, represented by Dr Claudia Schmidt, Christina
Tufvesson and Andreas Manville, with an address for service
in Luxembourg.

2.

S p e c i a l i s t s i n d e n t a l , o r a l a n d m a x i l l o -
f a c i a l s u r g e r y

Austrian legislation distinguishes between, on the one hand,
‘doctors’, which includes ‘dentists’ and, on the other, ‘special-
ists’, which includes ‘specialists in dental, oral and maxillo-
facial surgery’. Persons from other Member States who fall