Careda SA (C-370/95), Federación nacional de operadores de máquinas recreativas y de azar (Femara) (C-371/95) and Asociación española de empresarios de máquinas recreativas (Facomare) (C-372/95) v Administración General del Estado.
Date: 1997-06-26
13 According to settled case-law (see, in particular, Case 295/84 Rousseau Wilmot [1985] ECR 3759, paragraph 16, and Case C-347/90 Bozzi [1992] ECR I-2947, paragraph 9), in leaving Member States free to maintain or introduce certain indirect taxes, such as excise duties, on the condition that they are not taxes which can be `characterized as turnover taxes', Article 33 of the Sixth Directive seeks to prevent the functioning of the common system of VAT from being compromised by fiscal measures of a Member State levied on the movement of goods and services, and charged on commercial transactions in a manner comparable to VAT.
14 Taxes, duties and charges which exhibit the essential characteristics of VAT must always be considered as such even if they are not identical in every respect to VAT.  As the Court has already held on more than one occasion, these characteristics are as follows: VAT applies generally to transactions relating to goods or services; it is proportional to the price of those goods and services, irrespective of the number of transactions which take place; it is charged at each stage of the production and distribution process; and, finally, it is imposed on the added value of goods and services, since the tax payable on a transaction is calculated after deducting the tax paid on the previous transaction (see, in particular, Case 252/86 Bergandi [1988] ECR 1343, paragraph 15; Joined Cases 93/88 and 94/88 Wisselink and Others [1989] ECR 2671, paragraph 18; Case C-109/90 Giant [1991] ECR I-1385, paragraphs 11 and 12; Case C-200/90 Dansk Denkavit and Poulson Trading [1992] ECR I-2217, paragraph 11, and Bozzi, cited above, paragraph 12).  The Court also pointed out in Bergandi, at paragraph 8, with regard to its essential characteristics, that VAT is definitively borne by the final consumer.
18 The answer to the first question must therefore be that Article 33 of the Sixth Directive is to be interpreted as meaning that, in order for a tax to be characterized as a turnover tax, it is not necessary for the relevant national legislation expressly to provide that it may be passed on to the consumer.
Second question
23 It is apparent from those provisions that the holding or issue of an invoice is not required, in all circumstances, by the directive, in particular, as the Advocate General notes in point 40 of his Opinion, in relations between taxable persons and the final consumer.  The holding or issue of an invoice cannot therefore constitute an essential characteristic of turnover tax within the meaning of Article 33 of the Sixth Directive.
26 The answer to the second question must therefore be that Article 33 of the Sixth Directive is to be interpreted as meaning that, in order for a tax to be characterized as a turnover tax, it is not necessary for the passing on of the tax to the consumer to be recorded in an invoice or other document serving as invoice.  For the purposes of the application of this provision, it is in any event for the national court to establish whether the tax at issue is capable of being charged on the movement of goods and services in a manner comparable to VAT, by examining whether it exhibits the essential characteristics of VAT. That will be the case if it is generally applicable, if it is proportional to the price of the services, if it is charged at each stage of the production and distribution process and if it is imposed on the added value of the services.