Case C-165/07: Judgment of the Court (Fifth Chamber) of 22 May 2008 (reference for a preliminary ruling from the Vestre Landsret — Denmark) — Skatteministeriet v Ecco Sko A/S (Common Customs Tariff — Combined Nomenclature — Tariff classification — Heading 6403 — Footwear with uppers of leather — Heading 6404 — Footwear with uppers of textile materials)
Date: 2008-05-22
Institutions: Court of Justice
Subjects: Combined Nomenclature, footwear industry, interpretation of the law, leather, textile industry

5.7.2008

EN

Official Journal of the European Union

C 171/9

a provision which, in order to be implemented by a Member State,
requires prior consultation by that State of the Advisory Committee
on value added tax and the adoption of national legislation author-
ising persons, in particular companies, established in the territory of
the country who, while legally independent, are closely bound to
one another by financial, economic and organisational
links, no
longer to be treated as separate taxable persons for the purposes of
value added tax in order to be treated as a single taxable person to
whom a single value added tax identification number is allocated
and, accordingly, the sole person entitled to submit value added tax
declarations.
to determine whether
the national court
national legislation, such as that at issue in the main proceedings,
satisfies those criteria, subject to the qualification that, where there
has been no prior consultation of the Advisory Committee on value
added tax, national legislation which meets those criteria constitutes
legislation adopted in breach of the procedural requirement laid
down in the second subparagraph of Article 4(4) of Sixth Directive
77/388.

is for

It

2. The principle of fiscal neutrality does not preclude national legisla-
tion which simply treats taxable persons wishing to opt
for a
mechanism to simplify value added tax declarations and payments
differently according to whether the parent company or body has
held more than 50 % of the share capital or stock of the persons
with whom it is linked since at least the beginning of the calendar
year preceding that in which the declaration was made or, on the
contrary, satisfies those conditions only after that date. It is for the
national court to determine whether national legislation, such as
that at issue in the main proceedings, constitutes such a provision.
Moreover, neither the principle prohibiting the abuse of rights nor
the principle of proportionality precludes such legislation.

(1) OJ C 140, 23.6.2007.

Judgment of the Court (Fifth Chamber) of 22 May 2008
(reference for a preliminary ruling from the Vestre
Landsret — Denmark) — Skatteministeriet v Ecco Sko A/S

(Case C-165/07) (1)

(Common Customs Tariff — Combined Nomenclature —
Tariff classification — Heading 6403 — Footwear with
uppers of leather — Heading 6404 — Footwear with uppers
of textile materials)

Parties to the main proceedings

Applicant: Skatteministeriet

Defendant: Ecco Sko A/S

Re:

Reference for a preliminary ruling — Vestre Landsret — Inter-
pretation of Annex I to Council Regulation (EEC) No 2658/87
of 23 July 1987 on the tariff and statistical nomenclature and
on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2388/2000 (formerly No 2263/2000) of
13 October 2000, amending Annex I to Council Regulation
(EEC) No 2658/87 — Compatibility of Additional Note 1 to
Chapter 64 of the Combined Nomenclature, which was incor-
porated
of
23 December 1992 amending Council Regulation No 2658/87,
with Note 4(a) to that same Chapter — Footwear with outer
soles of rubber, plastics, leather or composition leather — Clas-
sification under Combined Nomenclature heading 6403
(footwear with uppers of
leather) or under heading 6404
(footwear with uppers of textile materials)

by Commission Regulation No

3800/92

Operative part of the judgment

1. The Combined Nomenclature set out in Annex I to Council Regu-
lation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as
amended by Commission Regulation (EC) No 2388/2000 of
13 October 2000, must be interpreted as meaning that a sandal
such as that in question in the main proceedings, with an outer
sole of rubber, whose upper is made up of two leather sections
glued to the inner sole and linked to each other by leather fastening
straps covered with Velcro strips, with the leather making up
around 71 % of the upper's external surface area and the elastic
textile material underneath the leather remaining exposed in places,
falls within:

the upper of

— heading 6404 of the Combined Nomenclature if the textile
the leather
material of
sections, fulfils the purpose of an upper, that is to say, provides
sufficient support for the foot to enable the wearer to walk in
the sandal;

the sandal, without

the upper of

— heading 6403 of the Combined Nomenclature if the textile
material of
the leather
sections, does not fulfil the purpose of an upper, that is to say,
does not provide sufficient support for the foot to enable the
wearer to walk in the sandal.

the sandal, without

(2008/C 171/15)

Language of the case: Danish

2. Additional Note 1 to Chapter 64 of the Combined Nomenclature,
inserted by Commission Regulation (EEC) No 3800/92 of
is
23 December 1992 amending Regulation No 2658/87,
compatible with Note 4(a) to that chapter.

Referring court

Vestre Landsret

(1) OJ C 129, 9.6.2007.