CELEX: C1998/072/01
Language: en
Date: 1998-03-07 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 (reference for a preliminary ruling from the Hof van Beroep te Antwerpen, the Rechtbank van Eerste Aanleg te Brussel and the Rechtbank van Eerste Aanleg te Brugge): Garage Molenheide BVBA, Peter Schepens, Bureau Rik Decan-Business Research & Development NV (BRD), Sanders BVBA v. Belgian State (Sixth Directive (77/388/EEC) - Scope - Right to deduction of VAT - Retention of balance of VAT due - Principle of proportionality)

7.3.98               EN                  Official Journal of the European Communities                                        C 72/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
              JUDGMENT OF THE COURT                                  Almeida,   P. Jann (Rapporteur) and L. Sevón, Judges; N.
                                                                     Fennelly,    Advocate General; D. Louterman-Hubeau,
                      (Fifth Chamber)
                                                                     Principal   Administrator, for the Registrar, has given a
                   of 18 December 1997                               judgment   on 18 December 1997, in which it has ruled:
in Joined Cases C-286/94, C-340/95, C-401/95 and
C-47/96 (reference for a preliminary ruling from the Hof             1. Article 18(4) of the Sixth Council Directive 77/388/
van Beroep te Antwerpen, the Rechtbank van Eerste                        EEC of 17 May 1977 on the harmonisation of the
Aanleg te Brussel and the Rechtbank van Eerste Aanleg te                 laws of the Member States relating to turnover taxes
Brugge): Garage Molenheide BVBA, Peter Schepens,                         Ð Common system of value added tax: uniform basis
Bureau Rik Decan-Business Research & Development NV                      of assessment does not in principle preclude measures
         (BRD), Sanders BVBA v. Belgian State (1)                        of the kind at issue in the main proceedings.
(Sixth Directive (77/388/EEC) Ð Scope Ð Right to
deduction of VAT Ð Retention of balance of VAT due Ð
                Principle of proportionality)                        2. However, the principle of proportionality is applicable
                                                                         to national measures which, like those at issue in the
                        (98/C 72/01)                                     main proceedings, are adopted by a Member State in
                                                                         the exercise of its powers relating to VAT, in that, if
                                                                         they went further than was necessary in order to attain
               (Language of the case: Dutch)                             their objective, they would undermine the principles of
                                                                         the common system of VAT, in particular the
                                                                         conditions governing deductions, which are an
                                                                         essential component of that system.
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)
                                                                         It is for the national court to examine whether or not
                                                                         the measures in question and the manner in which
In Joined Cases C-286/94, C-340/95, C-401/95 and                         they are applied by the competent administrative
C-47/96: reference to the Court under Article 177 of the                 authority are proportionate. In the context of that
EC Treaty from the Hof van Beroep te Antwerpen                           examination, if the national provisions or a particular
(Belgium) (C-286/94 and C-340/95), the Rechtbank van                     construction of them would constitute a bar to
Eerste Aanleg te Brussel (C-401/95) and the Rechtbank                    effective judicial review, in particular review of the
van Eerste Aanleg te Brugge (Belgium) (C-47/96) for a                    urgency and necessity of retaining the refundable VAT
preliminary ruling in the proceedings pending before those               balance, and would prevent the taxable person from
courts between Garage Molenheide BVBA (C-286/94),                        applying to a court for replacement of the retention by
Peter Schepens (C-340/95), Bureau Rik Decan-Business                     another guarantee sufficient to protect the interests of
Research & Development NV (BRD) (C-401/95), Sanders                      the Treasury but less onerous for the taxable person,
BVBA (C-47/96) and Belgian State Ð on the                                or would prevent an order from being made, at any
interpretation of Article 18(4) of the Sixth Council                     stage of the procedure, for the total or partial lifting of
Directive 77/388/EEC of 17 May 1977 on the                               the retention, the national court should disapply those
harmonization of the laws of the Member States relating                  provisions or refrain from placing such a construction
to turnover taxes Ð Common system of value added tax:                    on them. Moreover, in the event of the retention being
uniform basis of assessment (OJ L 145, 13.6.1977, p. 1)                  lifted, calculation of the interest payable by the
Ð the Court (Fifth Chamber), composed of: C. Gulmann,                    Treasury which did not take as its starting point the
President of the Chamber, M. Wathelet, J. C. Moitinho de                 date on which the VAT balance in question would
 ---pagebreak--- C 72/2               EN                   Official Journal of the European Communities                                       7.3.98
     have had to be repaid in the normal course of events                          JUDGMENT OF THE COURT
     would be contrary to the principle of proportionality.
                                                                                           (Second Chamber)
(1) OJ C 370, 24.12.1994.                                                                 of 15 January 1998
    OJ C 333, 9.12.1995.
    OJ C 46, 17.2.1996.                                              in Case C-113/97 (reference for a preliminary ruling from
    OJ C 95, 30.3.1996.
                                                                     the Tribunal du Travail, Charleroi): Henia Babahenini v.
                                                                                          The Belgian State (1)
                                                                     (EEC-Algeria Cooperation Agreement Ð Article 39(1) Ð
                                                                     Principle of non-discrimination in the field of social
                                                                      security Ð Direct effect Ð Scope Ð Disability allowance)
              JUDGMENT OF THE COURT
                                                                                              (98/C 72/03)
                      (Second Chamber)
                     of 15 January 1998
in Case C-125/96 (reference for a preliminary ruling from                           (Language of the case: French)
the Hessisches Finanzgericht, Kassel): Hartmut Simon v.
            Hauptzollamt Frankfurt am Main (1)
(Additional milk levy Ð Date on which it becomes
payable Ð Article 15(4) of Regulation (EEC) No 1546/88
                                                                       (Provisional translation; the definitive translation will be
           Ð Meaning of any levy amount due')
                                                                              published in the European Court Reports)
                         (98/C 72/02)
               (Language of the case: German)
                                                                     In Case C-113/97: reference to the Court under Article 177
                                                                     of the EC Treaty from the Tribunal du Travail (Labour
  (Provisional translation; the definitive translation will be       Court), Charleroi (Belgium), for a preliminary ruling in
         published in the European Court Reports)                    the proceedings pending before that court between Henia
                                                                     Babahenini and The Belgian State Ð on the interpretation
In Case C-125/96: reference to the Court under Article 177           of Article 39(1) of the Cooperation Agreement between
of the EC Treaty from the Hessisches Finanzgericht                   the European Economic Community and the People's
(Finance Court, Hesse), Kassel (Germany), for a                      Democratic Republic of Algeria, signed in Algiers on
preliminary ruling in the proceedings pending before that            26 April 1976 and concluded on behalf of the Community
court between Hartmut Simon and Hauptzollamt                         by Council Regulation (EEC) No 2210/78 of 26 September
Frankfurt am Main Ð on the interpretation of                         1978 (OJ L 263, 27.9.1978, p. 1) Ð the Court (Second
Article 15(4) of Commission Regulation (EEC) No 1546/                Chamber), composed of: R. Schintgen (Rapporteur),
88 of 3 June 1988 laying down detailed rules for the                 President of the Chamber, G. F. Mancini and G. Hirsch,
application of the additional levy referred to in Article 5c         Judges; F. G. Jacobs, Advocate General; R. Grass,
of Regulation (EEC) No 804/68 (OJ L 139, 4.6.1988,                   Registrar, has given a judgment on 15 January 1998, in
p. 12) Ð the Court (Second Chamber), composed of: R.                 which it has ruled:
Schintgen, President of the Chamber, H. Ragnemalm and
G. F. Mancini (Rapporteur), Judges; M. B. Elmer,
Advocate General; H. von Holstein, Deputy Registrar, for
the Registrar, has given a judgment on 15 January 1998,              Article 39(1) of the Cooperation Agreement between the
in which it has ruled:                                               European Economic Community and the People's
                                                                     Democratic Republic of Algeria, signed in Algiers on
Article 15(4) of Commission Regulation (EEC) No 1546/                26 April 1976 and concluded on behalf of the Community
88 of 3 June 1988 laying down detailed rules for the                 by Council Regulation (EEC) No 2210/78 of 26 September
application of the additional levy referred to in Article 5c         1978, is to be interpreted as precluding a Member State
of Regulation (EEC) No 804/68 must be construed as                   from refusing to grant a benefit, such as disability
meaning that the amount of levy due refers, within the               allowance, provided for under its legislation in favour of
context of Formula A, to the amount objectively payable              nationals resident in that State and irrespective of whether
by a milk producer by reason of the fact that he has                 they have been working in an employed capacity, to the
actually exceeded his reference quantity even where the              disabled spouse of a retired Algerian worker who lives
exact amount can be established only after verification of           with her husband in the Member State in question, on the
the quantities delivered, and becomes payable on the date            ground that she is of Algerian nationality and has never
laid down in that provision, that is to say, not more than           been engaged in a trade or profession.
three months following the end of each 12-month period,
namely on the following 30 June.
                                                                     (1) OJ C 142, 10.5.1997.
(1) OJ C 158, 1.6.1996.