Case C-494/04: Judgment of the Court (Third Chamber) of 15 June 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Heintz van Landewijck SARL v Staatssecretaris van Financiën (Tax provisions — Harmonisation of laws — Directive 92/12/EEC — Excise duty — Tax stamps — Sixth VAT Directive — Articles 2 and 27 — Disappearance of excise stamps)
Date: 2006-09-02
Institutions: Court of Justice
Subjects: Netherlands, VAT, derogation from EU law, excise duty, interpretation of the law, tax collection, tobacco

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

C 212/6

EN

Official Journal of the European Union

2.9.2006

Parties to the main proceedings

Applicant: Heintz van Landewijck SARL

Defendant: Staatssecretaris van Financiën

tible with Sixth Directive 77/388 and, in particular, with Article
27(1) and (5) thereof.

(1) OJ C 45, 19.02.2005.

Re:

Reference for a preliminary ruling — Hoge Raad der Neder-
landen — Interpretation of Article 27(1) and (5) of Sixth
Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization 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), as amended by Ninth Direc-
tive 78/583/EEC (OJ 1978 L 194, p. 16) — Interpretation of
Council Directive 92/12/EEC of 25 February 1992 on the
general arrangements for products subject to excise duty and
on the holding, movement and monitoring of such products
(OJ 1992 L 76, p. 1) — Compatibility of national law with
Community law — Tax labels for tobacco products — Disap-
pearance before use

Operative part of the judgment

The Court:

1. Neither Council Directive 92/12/EEC of 25 February 1992 on
the general arrangements for products subject to excise duty and
on the holding, movement and monitoring of such products nor
the principle of proportionality preclude Member States from
adopting legislation which does not provide for reimbursement of
the amount of excise duty paid, where the excise stamps disap-
peared before having been affixed to the tobacco products, if that
disappearance is not attributable to force majeure or to an accident
and if it is not established that the stamps have been destroyed or
rendered permanently unusable, which thereby places the financial
responsibility for the loss of tax stamps on the purchaser.

2. Article 27(5) 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 must be interpreted as meaning that
failure to observe the period for notification does not constitute a
material procedural defect capable of rendering inapplicable a dero-
gating measure which was notified late.

3. Article 27(1) and (5) of Sixth Directive 77/388 must be inter-
preted as meaning that a derogating scheme for collecting VAT by
means of tax stamps, such as that established by Article 28 of the
Law on turnover tax of 28 June 1968 (Wet op de omzetbe-
lasting),
is compatible with the requirements laid down by the
provisions of the directive and does not exceed what is necessary
for the simplification of the procedure for charging the tax.

4. The absence of an obligation to reimburse amounts paid for the
purchase of excise stamps which correspond to VAT, where those
stamps disappeared before having been affixed to the tobacco
products, if that disappearance is not attributable to force majeure
or to an accident and if it is not established that the stamps have
been destroyed or rendered permanently unusable, is not incompa-

Judgment of the Court (First Chamber) of 22 June 2006 —
August Storck KG v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-24/05 P) (1)

(Appeal — Community trade mark — Article 7(1)(b) and (3)
of Regulation (EC) No 40/94 — Absolute ground for refusal
to register — Three-dimensional mark — Three-dimensional
shape of a light-brown sweet — Distinctive character)

(2006/C 212/10)

Language of the case: German

Parties

Appellant: August Storck KG (represented by:
Wrage-Molkenthin and T. Reher, Lawyers)

I. Rohr, H.

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: G.
Schneider, Agent)

Re:

Appeal against the judgment of the Court of First Instance
(Fourth Chamber) of 10 November 2004 in Case T-396/02
Storck v OHIM, whereby the Court of First Instance dismissed
the action for annulment of the refusal to register a three-
dimensional trade mark consisting of the shape of a light-
brown sweet for confectionery within Class 30 — Distinctive
character of a trade mark — Article 7(1)(b) of Council Regu-
lation (EC) No 40/94 of 20 December 1993 on the Community
trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders August Storck KG to pay the costs.

(1) OJ C 69, 19.03.2005.