CELEX: C1997/108/17
Language: en
Date: 1997-04-05 00:00:00
Title: Reference for a preliminary ruling by the VAT and Duties Tribunal, London, by direction of that court of 15 January 1997, in the case of Kuwait Petroleum (GB) Ltd against the Commissioners of Customs and Excise (Case C-48/97)

No C 108/ 10              EN                  Official Journal of the European Communities                                         5 . 4 . 97
in the initial correspondence, or in bilateral talks, or in the                supply' in Article 11 ( A) ( 3 ) ( b ) of the Sixth Council
arbitration procedure, that the inspection system gave rise                    Directive ( 77/388/EEC ) of 17 May 1977 on the
to the significant risks it claims. Moreover, the inspection                   harmonization of the laws of the Member States
reports pursuant to Regulation (EEC ) No 618/90 were                           relating to turnover taxes — Common system of
based on an erroneous interpretation of Article 3 in                           value added tax: uniform basis of assessment (') to be
conjunction with Annex II of that regulation. The                              interpreted to cover the whole cost of the redemption
requirements placed by the Commission on the inspection                        goods ?
procedure in Germany were based, as least in so far as
their contents were concerned, on Article 17 of Regulation
( EEC) No 2456/93 , a legal basis which at the time in                   2.    Are the redemption goods to be treated as ' supplies
question, namely 1992, was not yet applicable . The                            made for consideration' for the purposes of Article 5
accusation that the German inspection system was                               ( 6 ) of that Directive ?
unreliable can be seen to be untenable merely by looking
at the actual economic circumstances, since an exchange
of good quality procedure for lesser quality produce,                    3.    If the redemption goods are provided otherwise than
which the Commission regards as possible, would                                for consideration or 'free of charge', is Article 5 ( 6 )
inevitably have led to complaints from purchasers, who                         to be interpreted as requiring that the provision of
would have been defrauded in those circumstances . The                         the redemption goods be treated as a supply for
 German Government maintains that its position is further                      consideration notwithstanding that such provision is
supported by the final report of the arbitration body.                          for business purposes ?
 (') OJ No L 323 , 13 . 12 . 1996 , p . 26 .                             4.     Do any of the foregoing questions require a different
 ( 2 ) OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    answer
                                                                                ( a ) where all the vouchers redeemed for any item of
                                                                                       redemption goods were obtained on purchases of
                                                                                       premium goods from the promoter of the scheme,
 Reference for a preliminary ruling by the VAT and Duties
                                                                                ( b ) where those vouchers were all obtained on
 Tribunal, London, by direction of that court of 15 January
  1997, in the case of Kuwait Petroleum (GB ) Ltd against                              purchases of premium goods from a trader who
               the Commissioners of Customs and Excise                                 was a participating dealer in the scheme, or
                             (Case C-48/97 )
                                                                                 ( c ) where the vouchers redeemed were obtained
                              97/C 108/ 17 )                                           partly on purchases of premium goods from the
                                                                                       promoter and partly on purchases of premium
                                                                                       goods from one or more participating dealers ?
  Reference has been made to the Court of Justice of the
  European Communities by a direction of the VAT and
  Duties Tribunal, London, of 15 January 1997, which was                  5.     If the answer to question 3 is 'No', is the United
  received at the Court Registry /on 6 February 1997, for a                      Kingdom entitled pursuant to Article 27 of the Sixth
  preliminary ruling in the case of Kuwait Petroleum ( GB )                      Council Directive and under the derogation obtained
  Ltd against the Commissioners of Customs and Excise, on                        by it in 1977 to impose an output tax charge on the
  the following questions:                                                       promoter which is based on the cost to the promoter
                                                                                  of the redemption goods in addition to the output tax
                                                                                  included in the full retail price of the premium
  Where a supplier of goods operates a business promotion                         goods ?
   scheme, under which, in outline :
                                                                          H OJ No L 145, 13 . 6 . 1977, p. 1 .
   (i)     the promoter provided redemption goods for business
           purposes in accordance with the terms of the scheme;
   ( ii ) for no payment in money at the point of redemption;
                                                                          Action brought on 6 February 1997 by the Commission of
    ( iii) against the redemption of vouchers to which a                     the European Communities against the French Republic
           purchaser of premium goods became entitled by
           paying the full retail price of those goods without                                       ( Case C-49/97)
           making any identifiable monetary payment for the                                            ( 97/C 108/ 18 )
           vouchers .
     1.     Is the expression 'price discounts and rebates allowed        An action against the French Republic was brought before
            to the customer and accounted for at the time of               the Court of Justice of the European Communities on