CELEX: C2003/304/23
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-435/03: Reference for a preliminary ruling by the hof van beroep te Antwerpen by interlocutory judgment of that Court of 7 October 2003 in the proceedings between 1. British American Tobacco International Limited, 2. N.V. Newman Shipping & Agency Company, and the Belgian State, Ministry of Finance

13.12.2003             EN                        Official Journal of the European Union                                          C 304/15
Pleas in law and main arguments                                          —     there is no possibility of choosing to include capital
                                                                               goods, or goods or a service treated as such, wholly in
                                                                               the assets of an undertaking where the acquirer uses those
In so far as it makes the use of construction products including               goods or that service both within the undertaking and
tubes of polyethylene imported from other Member States                        outside it (in particular for private purposes);
subject to an approval procedure, Article 17 of Decree-Law
No 38/382 constitutes a measure having effect equivalent to a            —     there is, related to this, also no possibility of deducting
quantitative restriction on imports prohibited by Article 28                   directly and wholly the tax charged on the acquisition of
EC. The Portuguese authorities have not explained why tubes                    those goods or that service; and
of polyethylene should constitute a danger to human life or
health and have not put forward any other overriding reasons.
                                                                         —     there is no provision for the charging of VAT as intended
                                                                               in Article 6(2)(a) of the Sixth Directive,
The authorities of the Member States are not entitled to
demand, where there is no need, technical or chemical analyses           compatible with the Sixth Directive — in particular
or laboratory tests when those analyses or tests have already            Article 17(1), (2) and (6) and Article 6(2) thereof?
been performed in another Member State and the results are
available to those authorities or can, at their request, be made
available.                                                               (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             harmonization of the laws of the Member States relating to
                                                                             turnover taxes — Common system of value added tax: uniform
The Portuguese authorities are obliged, in accordance with the               basis of assessment (OJ L 145 of 13.6.1977, p. 1).
Court of Justice’s case-law, to take into account certificates
issued by certification bodies in other Member States which,
although they are not members of the European Association
for Technical Approval in Construction, are recognised to be
suitable bodies for the purposes of certifying the products in
question. In this instance the Portuguese authorities have failed
to do so.
                                                                         Reference for a preliminary ruling by the hof van beroep
(1) OJ L 321 of 30 December 1995, p. 1.
                                                                         te Antwerpen by interlocutory judgment of that Court of
                                                                         7 October 2003 in the proceedings between 1. British
                                                                         American Tobacco International Limited, 2. N.V. Newman
                                                                         Shipping & Agency Company, and the Belgian State,
                                                                                                 Ministry of Finance
                                                                                                   (Case C-435/03)
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 10 October
2003 in the appeal in cassation brought by P. Charles and                                         (2003/C 304/23)
    T.S. Charles-Tijmens against the Inspector of Taxes
                        (Case C-434/03)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by interlocutory judgment of the hof
                        (2003/C 304/22)                                  van beroep te Antwerpen (Court of Appeal, Antwerp) of
                                                                         7 October 2003, received at the Court Registry on 14 October
                                                                         2003, for a preliminary ruling in the proceedings between
                                                                         1. British American Tobacco International Limited, 2. N.V.
Reference has been made to the Court of Justice of the                   Newman Shipping & Agency Company, and the Belgian State,
European Communities by judgment of the Hoge Raad der                    Ministry of Finance on the following questions:
Nederlanden (Supreme Court of the Netherlands) of 10 Octo-
ber 2003, received at the Court Registry on 13 October 2003,             1.    Can there be a ‘supply of goods’ within the meaning of
for a preliminary ruling in the appeal in cassation brought by                 the Sixth VAT Directive (1), with the consequence that
P. Charles and T.S. Charles-Tijmens against the Inspector of                   VAT can be charged:
Taxes on the following question:
                                                                               —     in the absence of any consideration?
Is a statutory scheme such as that set out in section 3.4.1
above, which was already in existence before the Sixth                         —     in the absence of transfer of the right to dispose
Directive (1) was adopted and under which:                                           freely of the goods as owner?
 ---pagebreak--- C 304/16                EN                         Official Journal of the European Union                                           13.12.2003
      —     if the goods cannot lawfully be placed on the market           The Commission claims that the Court should:
            because they are stolen goods and/or contraband?
                                                                           1.     declare that by granting Austrian dentists the possibility
2.    Is the answer to the first question different if the goods in               in Paragraphs 6 and 4(3) of the Dentistengesetz (Law on
      question are products subject to excise duty and in                         Dentists) of engaging in their occupation under the title
      particular manufactured tobaccos?                                           ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’ and of making use of
                                                                                  the exception laid down in Article 19b of Council
                                                                                  Directive 78/686/EEC of 25 July 1978 (1), although the
3.    If no excise duty is charged on products which are subject                  dentists do not meet the minimum requirements under
      to excise duty, is it compatible with the provisions of the                 Article 1 of Council Directive 78/687/EEC of 25 July
      Sixth VAT Directive to charge VAT in such a case?                           1978 (2) for falling within the provisions of Directives
                                                                                  78/686/EEC and 78/687/EEC, the Republic of Austria
                                                                                  has failed to fulfil its obligations under Articles 1 and 19b
4.    May Member States supplement the categories of trans-
                                                                                  of Directive 78/686/EEC and Article 1 of Directive 78/
      action subject to VAT if they lodge a notification, as
                                                                                  687/EEC;
      referred to in Article 27(2) or Article 27(5) of the Sixth
      VAT Directive, of their intention to charge VAT at
      national level in the event of theft of products subject to          2.     declare that by allowing, pursuant to Paragraphs 17
      excise duty from a tax warehouse, or is Article 2 of the                    and 23 of the Ärztegesetz (Law on Doctors), Austrian
      Sixth VAT Directive exhaustive?                                             ‘specialists in dental, oral and maxillo-facial surgery’ to
                                                                                  continue, in breach of Article 19b of Directive 78/686/
                                                                                  EEC, to engage in their occupation under the title
5.    If a notification as referred to in Article 27(5) of the Sixth              ‘Fachärzte für Zahn-, Mund- und Kieferheilkunde’ (special-
      VAT Directive relates only to the prepayment of VAT by                      ists in dental, oral and maxillo-facial surgery) and by
      means of fiscal stamps, may a Member State supplement                       those specialists not being placed on the same footing as
      the categories of transaction subject to VAT by, for                        dentists inasmuch as specialists in dental, oral and
      example, requiring the payment of VAT where products                        maxillo-facial surgery are entitled to engage in their
      subject to excise duty have been stolen from a tax                          activities under the same conditions as holders of dip-
      warehouse?                                                                  lomas, certificates or other evidence of formal qualifi-
                                                                                  cations in accordance with Annex A (dentists), the
                                                                                  Republic of Austria has failed to fulfil its obligations
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the                      under Articles 1 and 19b of Directive 78/686/EEC;
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform             3.     order the Republic of Austria to pay the costs.
    basis of assessment (OJ L 145 of 13.6.1977, p. 1).
                                                                           Pleas in law and main arguments
                                                                           1. D e n t i s t s
Action brought on 17 October 2003 by the Commission
                                                                           Austrian legislation has created a ‘new category of dentists’
of the European Communities against the Republic of
                                                                           which is not provided for in the directives. Although Austria
                               Austria
                                                                           recognises that the situation is contrary to Community law, it
                                                                           keeps it unchanged and continues to grant ‘dentists’ the right
                                                                           to engage in their occupation under the professional title
                          (Case C-437/03)                                  ‘Zahnarzt’ or ‘Zahnarzt (Dentist)’, and enables the Dentistenk-
                                                                           ammer (professional association of dentists) to issue certificates
                                                                           under Article 19b of Directive 78/686/EEC.
                         (2003/C 304/24)
                                                                           2. S p e c i a l i s t s i n d e n t a l , o r a l a n d m a x i l l o -
                                                                                 facial surgery
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
17 October 2003 by the Commission of the European                          Austrian legislation distinguishes between, on the one hand,
Communities, represented by Dr Claudia Schmidt, Christina                  ‘doctors’, which includes ‘dentists’ and, on the other, ‘special-
Tufvesson and Andreas Manville, with an address for service                ists’, which includes ‘specialists in dental, oral and maxillo-
in Luxembourg.                                                             facial surgery’. Persons from other Member States who fall