Case C-439/04: Reference for a preliminary ruling by the Belgian Cour de Cassation (1st Chamber) by decision of that court of 7 October 2004 in the case of Axel Kittel against Belgian State
Date: 2005-01-08
Institutions: Court of Justice
Subjects: VAT, contract, delivery, interpretation of the law, sale, tax evasion, tax relief, tax system

8.1.2005

EN

Official Journal of the European Union

C 6/25

(d) a national measure which grants to the donor operator
the right to apply the tariff set by the national regulatory
authority, relieving that operator of the obligation to
prove that the tariff which it applies is oriented to its
own costs?

With regard to the right of appeal provided for by Article
4 of Directive 2002/21/EC (2) (Framework Directive):

Must Article 4(1) of the Framework Directive be interpreted as
meaning that the authority designated to hear and determine
appeals must be able to have at its disposal all the information
necessary for the merits of the case to be duly taken into
account, including the confidential information on the basis of
which the national regulatory authority adopted the decision
which is the subject-matter of the appeal?

that the fact that the contract of sale is void, by reason of a
rule of domestic civil law which renders the contract incur-
ably void as contrary to public policy on the ground of
illegal basis of the contract attributable to the seller, cannot
cause that taxable person to lose his right to deduct that
tax?

2. Is the answer different where the contract is incurably void

for fraudulent evasion of VAT itself?

3. Is the answer different where the unlawful basis of the
incurably void under
contract of sale which renders it
domestic law is a fraudulent evasion of value added tax
known to both parties to the contract?

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
communications networks and services
(Universal Service Directive) (OJ L 108 of 24.4.2002 p. 51).

the European Parliament and of

(2) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
(Framework
electronic communications networks and services
Directive) (OJ L 108 of 24.4.2002 p. 33).

the European Parliament and of

Reference for a preliminary ruling by the Belgian Cour de
Cassation (1st Chamber) by decision of that court of 7
October 2004 in the case of Axel Kittel against Belgian
State

(Case C-439/04)

(2005/C 6/47)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Belgian Cour de Cassation
(Court of Cassation) (1st Chamber) of 7 October 2004, received
at the Court Registry on 19 October 2004, for a preliminary
ruling in the case of Axel Kittel against the Belgian State on the
following questions:

1. Where the recipient of a supply of goods is a taxable person
who has entered into a contract
in good faith without
knowledge of a fraud committed by the seller, does the prin-
ciple of fiscal neutrality in respect of value added tax mean

Reference for a preliminary ruling by the Belgian Cour de
Cassation (1st Chamber) by decision of that court of 7
October 2004 in the case of the Belgian State against
Recolta Recycling s.p.r.l.

(Case C-440/04)

(2005/C 6/48)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Belgian Cour de Cassation
(Court of Cassation) (1st Chamber) of 7 October 2004, received
at the Court Registry on 19 October 2004, for a preliminary
ruling in the case of the Belgian State against Recolta Recycling
s.p.r.l. on the following questions:

1. Where the recipient of a supply of goods is a taxable person
who has entered into a contract
in good faith without
knowledge of a fraud committed by the seller, does the prin-
ciple of fiscal neutrality in respect of value added tax mean
that the fact that the contract of sale is void, by reason of a
rule of domestic civil law which renders the contract incur-
ably void as contrary to public policy on the ground of
illegal basis of the contract attributable to the seller, cannot
cause that taxable person to lose his right to deduct that
tax?

2. Is the answer different where the contract is incurably void

for fraudulent evasion of VAT itself?