Heintz van Landewijck SARL v Staatssecretaris van Financiën.
Date: 2006-06-15
41. However, the Excise Directive does not contain any provisions relating to the disappearance of such stamps. That directive must, therefore, be regarded as leaving it to the Member States to determine the consequences of such a disappearance. That directive cannot, therefore, be interpreted as meaning that it precludes the Member States from laying down national rules which, in a case where tax stamps go missing, place the financial responsibility for the loss of those stamps on the purchaser.
42. Neither can such national rules be regarded as contrary to the principle of proportionality.
43. A national law which allowed the purchaser of excise stamps to obtain reimbursement simply by claiming that they had gone missing would be likely to encourage abuse and evasion. The prevention of abuse and evasion is precisely one of the objectives pursued by Community law.
44. Accordingly, national rules such as those at issue in the main proceedings, which place the financial responsibility for the loss of those stamps on the purchaser where tax stamps go missing, contribute to the achievement of the aim of preventing the fraudulent use of those stamps. Furthermore, those national rules do not exceed what is necessary to pursue that objective, since they do not exclude any possibility of reimbursement or offsetting in other situations, such as the loss of the stamps due to accident or force majeure.
45. In that connection, the argument that the risk that the missing stamps will be misused is minimal in the particular circumstances of the case has no effect on the answer to be given to the national court, since there is nevertheless a risk of abuse.
47. By Question 2(a), the national court asks essentially whether the fact that a Member State has notified the Commission of its wish to maintain the special procedure for collecting tax on manufactured tobacco after the expiry of the period prescribed in Article 27(5) of the Sixth Directive, as extended by the Ninth Directive, means that the procedure for charging tax may not be applied even after the date of its notification.
48. It is true that the Court has already held that a derogation from the Sixth Directive adopted without compliance with the duty of notification imposed on the Member States by Article 27(2) cannot be relied upon as against a taxable person (see, in particular, Case 5/84 Direct Cosmetics  [1985] ECR 617, paragraph 37, and Case C-97/90 Lennartz [1991] ECR I-3795, paragraph 33). In the absence of notification, that measure cannot be authorised by the Council in accordance with Article 27(1) of the Sixth Directive.
49. However, in the present case, it is not a question of a new derogating measure which must be authorised by the Council, but a special measure in existence on 1 January 1977 and which the Member State wished to maintain, in accordance with Article 27(5) of the Sixth Directive, in spite of the implementation of that directive. The Netherlands Government therefore notified the Commission of its wish to maintain the scheme in Article 28 of the Law on VAT on 12 June 1979. Furthermore, in its first report to the Council of 14 September 1983 on the functioning of the common system of VAT, submitted in accordance with Article 34 of the Sixth Directive (COM(83) 426 final), the Commission did not consider that that scheme was contrary to the criterion set out in Article 27(1) of the Sixth Directive, namely that the measures do not affect, except to a negligible extent, the amount of tax due at the final consumption stage.
50. Late notification of the derogating measure cannot entail the same consequences as a failure to notify. Article 27(5) of the Sixth Directive does not in fact impose any sanction in respect of the failure to comply with the time-limit for notification. Furthermore, the purpose of that notification is not to obtain the Commission’s authorisation, but simply to enable it to become acquainted with the measure concerned and to evaluate it. In those circumstances, failure to comply with the time-limit for notification cannot be regarded as a material procedural defect capable of rendering inapplicable a derogating measure which was notified late.
51. Accordingly, the answer to Question 2(a) must be that Article 27(5) of the Sixth Directive must be interpreted as meaning that failure to observe the period for notification does not constitute a material procedural defect capable of rendering inapplicable a derogating measure which was notified late.
Question 2(b)
53. As the Court has already held, the national derogating measures referred to in Article 27(5) of the Sixth Directive, which are allowed ‘in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance’, must be interpreted strictly (see, to that effect, Case 324/82 Commission  v Belgium  [1984] ECR 1861, paragraph 29). They may not derogate from the basis for charging VAT laid down in Article 11 of the Sixth Directive except within the limits strictly necessary for achieving that aim (Case C-63/96 Skripalle  [1997] ECR I-2847, paragraph 24). They must also be necessary and appropriate to the realisation of the specific objective which they pursue and have the least possible effect on the objectives and principles of the Sixth Directive (Joined Cases C-177/99 and C-181/99 Ampafrance and Sanofi  [2000] ECR I-7013, paragraph 60).
55. Furthermore, that scheme applies the amount of the VAT due to the price of the products at the final consumption stage, in accordance with the requirements of Article 27(1) of the Sixth Directive.
56. It is true that, in certain circumstances, such as the loss of products, their sale at a loss or unlawful sale at a price different from the retail price indicated on the tax stamps, the manufacturer may be obliged to pay an amount of VAT which is higher than that which would have resulted from the application of the ordinary Community system for levying VAT.
57. The mere possibility that such events may take place is not sufficient, however, to justify the conclusion that the derogating rules for collecting VAT by means of tax stamps do not comply with the criteria set out in Article 27(1) of the Sixth Directive. That article precludes only measures which might affect, to a non-negligible extent, the amount of tax due at the final consumption stage.
58. The nature of the arguments that the scheme for collecting tax by means of tax stamps may lead to a variation in the tax due at the final consumption stage is not such as to support the conclusion that that scheme might affect, to a non-negligible extent, the amount of tax due at the final consumption stage. Such a scheme does not therefore disregard the criteria set out in Article 27(1) of the Sixth Directive.
59. For the same reasons, it does not exceed what is necessary in order to simplify the procedure for charging VAT.
62. As stated above in paragraph 44, national rules which place the financial responsibility for the loss of those stamps on the purchaser where tax stamps go missing contribute to achieving the aim of preventing the fraudulent use of those stamps. Moreover, those national rules do not exceed what is necessary to pursue that objective, since they do not exclude any possibility of reimbursement or offsetting in other cases, such as the loss of the stamps by accident or force majeure.
65. The disappearance of tax stamps, unlike the theft of goods, has no effect on the taxable amount itself. The manufactured tobacco in respect of which the stamps were purchased may still be sold and the VAT debt, like the excise duty debt, may still arise. Furthermore, it is reasonable, as it has been observed, to encourage the purchaser of tax stamps to take precautions against the risk that they might go missing, although it is probably unnecessary to encourage the owner of goods to supervise them and take precautions against the risk of theft.