Judgment of the Court (Third Chamber) of 14 July 2005 in Case C-435/03: Reference for a preliminary ruling from the Hof van Beroep te Antwerpen in British American Tobacco International Ltd, Newman Shipping & Agency Company NV v Belgian State (Sixth VAT Directive — Articles 2 and 27(5) — Turnover tax — Scope — Chargeable event and taxable amount — Supply of goods for consideration — Theft of goods from a tax warehouse)
Date: 2005-09-03
Institutions: Court of Justice
Subjects: VAT, excise duty, interpretation of the law, storage, tax system

3.9.2005

EN

Official Journal of the European Union

C 217/13

— the agreement between the Government of the Federal Republic
of Germany and the Government of the Republic of Poland on
inland waterway transport, signed in Warsaw on 8 November
1991, and

— the agreement between the Government of the Federal Republic
of Germany and the Government of Ukraine on inland
waterway transport, signed in Bonn on 14 July 1992,

without consulting or cooperating with the Commission of the
European Communities,
the Federal Republic of Germany has
failed to fulfil its obligations under Article 10 EC;

Article 6(2) and Article 17(2) and (6) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the laws of
the Member States relating to turnover taxes — Common system of
value added tax: uniform basis of assessment, as amended by Council
Directive 95/7/EC of 10 April 1995, must be interpreted as
precluding national
legislation such as that at issue in the main
proceedings, adopted before that directive came into force, which does
not make it possible for a taxable person to allocate capital goods
used in part for business purposes and in part for purposes other than
those of his business wholly to his business and, where appropriate, to
deduct immediately and in full the value added tax due on the acquisi-
tion of those goods.

2. Dismisses the remainder of the action;

(1) OJ C 304 of 13.12.2003.

3. Orders the Commission of the European Communities and the

Federal Republic of Germany to bear their own costs.

(1) OJ C 289 of 29.11.2003.

JUDGMENT OF THE COURT

(Third Chamber)

of 14 July 2005

JUDGMENT OF THE COURT

(Grand Chamber)

of 14 July 2005

in Case C-434/03: Reference for a preliminary ruling from
the Hoge Raad der Nederlanden in P. Charles and T.S.
Charles-Tijmens v Staatssecretaris van Financiën (1)

(Sixth VAT directive — Deduction of input tax paid —
Immovable property used in part for the business and in part
for private purposes)

(2005/C 217/24)

(Language of the case: Dutch)

in Case C-435/03: Reference for a preliminary ruling from
the Hof van Beroep te Antwerpen in British American
Tobacco International Ltd, Newman Shipping & Agency
Company NV v Belgian State (1)

(Sixth VAT Directive — Articles 2 and 27(5) — Turnover
tax — Scope — Chargeable event and taxable amount —
Supply of goods for consideration — Theft of goods from a
tax warehouse)

(2005/C 217/25)

(Language of the case: Dutch)

In Case C-434/03: reference for a preliminary ruling under
Article 234 EC from the Hoge Raad der Nederlanden (Nether-
lands), made by decision of 10 October 2003, received at the
in the proceedings between P.
Court on 13 October 2003,
Charles and T.S. Charles-Tijmens and Staatssecretaris van
Financiën — the Court
(Grand Chamber), composed of V.
Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R.
Silva de Lapuerta, K. Lenaerts and A. Borg Barthet, Presidents
of Chambers, S. von Bahr (Rapporteur), J.N. Cunha Rodrigues,
J. Makarczyk, P. Kūris, E. Juhász and G. Arestis, Judges; F.G.
Jacobs, Advocate General; K. Sztranc, Administrator, for the
Registrar, gave a judgment on 14 July 2005, in which it ruled:

In Case C-435/03: reference for a preliminary ruling under
Article 234 EC from the Hof van Beroep te Antwerpen
(Belgium), made by decision of 7 October 2003, received at the
Court on 14 October 2003, in the proceedings between British
American Tobacco International Ltd, Newman Shipping &
Agency Company NV and Belgian State — the Court (Third
Chamber), composed of A. Rosas, President of the Chamber, A.
Borg Barthet, A. La Pergola, J.-P. Puissochet (Rapporteur) and J.
Malenovský, Judges; M. Poiares Maduro, Advocate General; R.
Grass, Registrar, gave a judgment on 14 July 2005, in which it
ruled:

C 217/14

EN

Official Journal of the European Union

3.9.2005

1. The theft of goods does not constitute a supply of goods for
consideration within the meaning of Article 2 of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation of
the Member States relating to turnover taxes —
the laws of
Common system of value added tax: uniform basis of assessment,
and therefore cannot as such be subject to value added tax. The
circumstance that goods are,
issue in the main
proceedings, subject to excise duty does not affect that conclusion.

like those at

Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a
judgment on 16 June 2005, in which it:

1. Declares that, by having failed to adopt the laws, regulations and
administrative provisions necessary to comply with Articles 3(1),
5(2), 6(2) and 8 to 12 of Directive 98/44/EC of the European
Parliament and of the Council of 6 July 1998 on the legal protec-
tion of biotechnological inventions, the Italian Republic has failed
to fulfil its obligations under Article 15 of that directive;

2. An authorisation to apply measures facilitating monitoring of the
charging of value added tax, granted to a Member State on the
basis of Article 27(5) of the Sixth Directive 77/388, does not
empower that State to subject transactions to that tax other than
those set out in Article 2 of the Directive. Such an authorisation
thus cannot provide a legal basis for national legislation subjecting
to value added tax the theft of goods from a tax warehouse.

2. Dismisses the action as to the remainder;

3. Orders the Italian Republic to bear all the costs.

(1) OJ C 304 of 13.12.2003.

(1) OJ C 7 of 10.1.2004.

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 16 June 2005

(First Chamber)

of 26 May 2005

in Case C-456/03: Commission of the European Commu-
nities v Italian Republic (1)

(Failure of a Member State to fulfil obligations — Directive
98/44/EC — Legal protection of biotechnological inventions
— Admissibility — Failure to transpose — Articles 3(1),
5(2), 6(2) and 8 to 12)

in Case C-465/03: Reference for a preliminary ruling from
the Unabhängiger Finanzsenat, Außenstelle Linz Kretz-
technik AG v Finanzamt Linz (1)

(Sixth VAT Directive — Supplies for consideration — Share
issue — Admission of a company to a stock exchange —
Deductibility of VAT)

(2005/C 217/26)

(Language of the case: Italian)

(2005/C 217/27)

(Language of the case: German)

In Case C-456/03, Commission of the European Communities
(Agent: K. Banks) v Italian Republic (Agent:
I.M. Braguglia,
assisted by P. Gentili, avvocato dello Stato) — action under
Article 226 EC for failure to fulfil obligations, brought on 27
October 2003 — the Court (Third Chamber), composed of A.
Rosas, President of the Chamber, J.P. Puissochet, S. von Bahr,
U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; D. Ruiz-

In Case C-465/03: reference for a preliminary ruling under
Article 234 EC from the Unabhängiger Finanzsenat, Außen-
stelle Linz (Austria), made by decision of 20 October 2003,
received at the Court on 5 November 2003, in the proceedings
between Kretztechnik AG and Finanzamt Linz, the Court (First
Chamber), composed of P. Jann, President of the Chamber, K.
Lenaerts (Rapporteur), J.N. Cunha Rodrigues, M. Ilešič and E.
Levits,
Jacobs, Advocate General; M.-F. Contet,
Principal Administrator, for the Registrar, gave a judgment on
26 May 2005, the operative part of which is as follows:

Judges; F.G.