Joined Cases C-439/04 and C-440/04: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State (Sixth VAT Directive — Deduction of input tax — Carousel fraud — Contract of sale incurably void under domestic law)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: VAT, contract, delivery, interpretation of the law, sale, tax evasion, tax relief, tax system

C 212/4

EN

Official Journal of the European Union

2.9.2006

Re:

Appeal brought against the judgment of the Court of First
Instance (Second Chamber) of 29 April 2004 in Joined Cases
T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-
252/01 Tokai Carbon and Others as regards Case T-239/01 —
Annulment of Commission Decision 2002/271/EC of 18 July
2001 relating to a proceeding under Article 81 EC and Article
53 of
the EEA Agreement — Case COMP/E-1/36.490 —
Graphite electrodes (OJ 2002 L 100, p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders SGL Carbon AG to pay the costs.

(1) OJ C 262, 23.10.2004.

Judgment of the Court (Second Chamber) of 15 June 2006
(references for a preliminary ruling from the Cour d'appel
de Liège (Court of Appeal, Liège ), Tribunal de première
instance de Liège (Court of First Instance, Liège) — Air
Liquide Industries Belgium SA v Ville de Seraing (C-393/
04) and Province de Liège (C-41/05)

(Joined Cases C-393/04 and C-41/05) (1)

(State aid — Definition — Exemption from municipal and
provincial taxes — Effects of Article 88(3) EC — Charges
having equivalent effect — Internal taxation)

(2006/C 212/06)

Language of the cases: French

Referring courts

Cour d'appel de Liège, Tribunal de première instance de Liège

solely for motors used for the distribution of natural gas, to the
exclusion of motors used in the distribution of industrial gas

Operative part of the judgment

1. The exemption from a municipal or provincial tax on motive force
granted solely in respect of motors used in natural gas stations, to
the exclusion of motors used for other industrial gases, may be
regarded as State aid within the meaning of Article 87 EC. It is
for the referring courts to establish whether the conditions relating
to the existence of State aid are met.

2. The fact that a tax exemption, such as that at issue in the main
proceedings, may be unlawful in the light of Community law on
State aid does not affect the legality of the tax itself, so that under-
takings liable to pay such a tax cannot rely before national courts
on the argument that the exemption was unlawful, in order to
avoid payment of the tax or to obtain reimbursement of it.

3. A tax on motive force,

levied in particular on motors used for
transporting industrial gas through very high pressure pipes, does
not
effect within the
meaning of Article 25 EC.

constitute a charge having equivalent

4. A tax on motive force,

levied in particular on motors used for
transporting industrial gas through very high pressure pipes, does
not constitute discriminatory internal taxation for the purposes of
Article 90 EC.

(1) OJ C 273, 06.11.2004.
OJ C 93, 16.04.2005.

Judgment of the Court (Third Chamber) of 6 July 2006
(reference for a preliminary ruling from the Cour de cassa-
tion — Belgium) — Axel Kittel v Belgian State

(Joined Cases C-439/04 and C-440/04) (1)

(Sixth VAT Directive — Deduction of input tax — ‘Carousel’
fraud — Contract of sale incurably void under domestic law)

(2006/C 212/07)

Language of the case: French

Parties to the main proceedings

Applicant: Air Liquide Industries Belgium SA

Defendants: Ville de Seraing (C-393/04), Province de Liège (C-
41/05)

Referring court

Cour de cassation

Re:

Parties to the main proceedings

References for a preliminary ruling — Cour d'appel de Liège,
Tribunal de première instance de Liège — Interpretation of
Articles 25 EC, 87 EC and 90 EC — State aid — Exemption
from a municipal tax and a provincial tax on motive force

Applicants: Axel Kittel (C-439/04) Belgian State (C-440/04)

Defendants: Belgian State (C-439/04) Recolta Recycling SPRL (C-
440-04)

2.9.2006

EN

Official Journal of the European Union

C 212/5

Re:

Reference for a preliminary ruling — Belgian Cour de Cassation
— Interpretation 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 (OJ 1977 L 145, p. 1)
— Principle of fiscal neutrality — Supplies of goods under a
contract of sale which is incurably void — Carousel fraud —
Loss of the right to deduct for a purchaser in good faith

Operative part of the judgment

Where a recipient of a supply of goods is a taxable person who did
not and could not know that the transaction concerned was connected
with a fraud committed by the seller, Article 17 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 meaning that it precludes a rule of national law under which the
fact that the contract of sale is void — by reason of a civil law provi-
sion which renders that contract incurably void as contrary to public
policy for unlawful basis of the contract attributable to the seller —
causes that taxable person to lose the right to deduct the value added
tax he has paid. It is irrelevant in this respect whether the fact that
the contract is void is due to fraudulent evasion of value added tax or
to other fraud.

By contrast, where it is ascertained, having regard to objective factors,
that the supply is to a taxable person who knew or should have
known that, by his purchase, he was participating in a transaction
connected with fraudulent evasion of value added tax, it is for the
national court to refuse that taxable person entitlement to the right to
deduct.

Defendant: Italian Republic (represented by: D. Del Gaizo, Agent
and D. Del Gaizo, avvocato)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Council Regulation (EC) No 1255/1999 of 17 May 1999 on
the common organisation of the market in milk and milk
products (OJ 1999 L 160, p. 48) and Commission Regulation
(EC) No 2799/1999 of 17 December 1999 laying down
detailed rules for applying Regulation (EC) No 1255/1999 as
regards the grant of aid for skimmed milk and skimmed-milk
powder
such
skimmed-milk powder (OJ 1999 L 340, p. 3) — Institution of
a system of traceability of milk powder not provided for by
Community legislation

feed and the sale of

intended for animal

Operative part of the judgment

The Court hereby:

1. Declares that by unilaterally instituting a system of traceability of
skimmed-milk powder for certain uses, not provided for by harmo-
nised provisions of Community law applicable to the sector, the
Italian Republic has failed to fulfil its obligations under Council
Regulation (EC) No 1255/1999 of 17 May 1999 on the
common organisation of the market in milk and milk products
and Commission Regulation (EC) No 2799/1999 of 17
December 1999 laying down detailed rules for applying Regu-
lation (EC) No 1255/1999 as regards the grant of aid for
skimmed milk and skimmed-milk powder intended for animal feed
and the sale of such skimmed-milk powder;

2. Orders the Italian Republic to pay the costs.

(1) OJ C 6, 08.01.2005.

(1) OJ C 31 of 05.02.2005

Judgment of the Court (Fourth Chamber) of 29 June 2006
— Commission of the European Communities v Italian
Republic

(Case C-487/04) (1)

(Failure of a Member State to fulfil obligations — Council
Regulation (EC) No 1255/1999 and Commission Regulation
(EC) No 2799/1999 — Milk and milk products — Skimmed-
milk powder — System of traceability of skimmed-milk
powder)

Judgment of the Court (Third Chamber) of 15 June 2006
(reference for a preliminary ruling from the Hoge Raad
der Nederlanden — Netherlands) — Heintz van Lande-
wijck SARL v Staatssecretaris van Financiën

(Case C-494/04) (1)

(Tax provisions — Harmonisation of laws — Directive
92/12/EEC — Excise duty — Tax stamps — Sixth VAT
Directive — Articles 2 and 27 — Disappearance of excise
stamps)

(2006/C 212/08)

Language of the case: Italian

(2006/C 212/09)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Bordes and C. Cattabriga, Agents)

Hoge Raad der Nederlanden

Referring court