THE NETHERLANDS AUTHORITY RELIED ON THE NETHERLANDS LAW OF 1968 ON TURNOVER TAX AND IN PARTICULAR ARTICLE 1 THEREOF . ACCORDING TO THAT PROVISION TURNOVER TAX IS CHARGEABLE ON THE ONE HAND ON GOODS DELIVERED AND SERVICES PROVIDED WITHIN THE COUNTRY BY TRADERS IN THE COURSE OF THEIR BUSINESS AND ON THE OTHER HAND ON THE IMPORTATION OF GOODS . THE PROVISION GIVES EFFECT TO ARTICLE 2 OF THE SECOND COUNCIL DIRECTIVE NO 67/228 OF 11 APRIL 1967 ON THE HARMONIZATION OF LEGISLATION OF MEMBER STATES CONCERNING TURNOVER TAXES - STRUCTURE AND PROCEDURES FOR APPLICATION OF THE COMMON SYSTEM OF VALUE-ADDED TAX ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 16 ), AN ARTICLE WHOSE PROVISIONS WERE SUBSTANTIALLY INCORPORATED INTO THE ABOVE-MENTIONED ARTICLE 2 OF THE SIXTH COUNCIL DIRECTIVE NO 77/388 AF 17 MAY 1977 .
4 WHEN THE OBJECTION TO THAT DECISION WAS DISMISSED ON THE GROUND THAT THE TAX HAD BEEN LEVIED IN CONFORMITY WITH THE NETHERLANDS LEGISLATION THE COMPANY GASTON SCHUL BROUGHT THE MATTER BEFORE THE GERECHTSHOF , ' S-HERTOGENBOSCH . IT CLAIMS THAT THE TAX IS CONTRARY TO THE PROVISIONS OF THE EEC TREATY , IN PARTICULAR ARTICLES 12 AND 13 ON THE ONE HAND AND ARTICLE 95 ON THE OTHER .
5 IN ORDER TO BE ABLE TO ASSESS THAT SUBMISSION THE GERECHTSHOF REFERRED TO THE COURT THE FOLLOWING QUESTIONS FOR A PRELIMINARY RULING :
' ' 1 . MUST THE CHARGING BY A MEMBER STATE OF TURNOVER TAX ON THE IMPORTATION OF GOODS FROM ANOTHER MEMBER STATE WHICH ARE SUPPLIED BY A PRIVATE PERSON BE REGARDED AS A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES WITHIN THE MEANING OF ARTICLE 13 ( 2 ) OF THE TREATY ( ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY ) IF , ON THE SUPPLY BY A PRIVATE PERSON OF GOODS WHICH ARE ALREADY IN THAT MEMBER STATE , NO CHARGE TO TURNOVER TAX IS MADE?
2.IF QUESTION 1 IS ANSWERED IN THE NEGATIVE , THEN , WITHIN THE MEANING OF ARTICLE 95 OF THE TREATY , MUST THE CHARGING BY A MEMBER STATE OF TURNOVER TAX ON THE IMPORTATION OF GOODS FROM ANOTHER MEMBER STATE WHICH ARE SUPPLIED BY A PRIVATE PERSON BE REGARDED AS INTERNAL TAXATION IN EXCESS OF THAT IMPOSED ON SIMILAR DOMESTIC PRODUCTS IF NO TURNOVER TAX IS CHARGED ON THE SUPPLY OF GOODS WHICH ARE ALREADY IN THAT MEMBER STATE IF THEY ARE SUPPLIED BY A PRIVATE PERSON?
3.SHOULD ONE OF THE TWO FOREGOING QUESTIONS BE ANSWERED IN THE AFFIRMATIVE , MUST IT BE ASSUMED THAT POINT 2 OF ARTICLE 2 OF THE SIXTH ( COUNCIL ) DIRECTIVE ON THE HARMONIZATION OF THE LAWS OF THE MEMBER STATES RELATING TO TURNOVER TAXES IS INCOMPATIBLE WITH THE TREATY AND THEREFORE INVALID IN SO FAR AS THAT PROVISION REQUIRES MEMBER STATES TO SUBJECT THE IMPORTATION OF GOODS FROM OTHER MEMBER STATES TO VALUE-ADDED TAX WITHOUT MAKING ANY EXCEPTION FOR GOODS SUPPLIED BY PRIVATE PERSONS WHICH , WHEN SUPPLIED WITHIN THE MEMBER STATE CONCERNED