Case C-487/04: Judgment of the Court (Fourth Chamber) of 29 June 2006 — Commission of the European Communities v Italian Republic (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)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, aid system, animal nutrition, milk, milk product, skimmed milk powder

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