Vlaamse Oliemaatschappij NV v FOD Financiën.
Date: 2011-12-21
19. It should be recalled that Article 21(3) of the Sixth Directive permits, as a rule, Member States to enact measures under which a person is to be jointly and severally liable to pay a sum in respect of VAT payable by another person made liable by one of the provisions of Article 21(1) and (2) (see Case C‑384/04 Federation of Technological Industries and Others  [2006] ECR I‑4191, paragraph 28).
20. However, in the exercise of the powers conferred on them by European Union directives, Member States must respect the general principles of law that form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality (see, inter alia, Federation of Technological Industries and Others , paragraph 29, and Case C‑271/06 Netto Supermarkt  [2008] ECR I‑771, paragraph 18).
21. As regards more particularly the principle of proportionality, the Court has already held that, in accordance with that principle, the Member States must employ means which, whilst enabling them effectively to attain the objectives pursued by their domestic laws, cause the least possible detriment to the objectives and principles laid down by the relevant European Union legislation (see, inter alia, Case C‑409/04 Teleos and Others [2007] ECR I‑7797, paragraph 52, and Netto Supermarkt , paragraph 19).
22. Therefore, whilst it is legitimate for the measures adopted by the Member States to seek to preserve the rights of the public exchequer as effectively as possible, such measures must not go further than is necessary for that purpose (see, inter alia, Federation of Technological Industries and Others , paragraph 30, and Netto Supermarkt , paragraph 20).
24. The Court has already held that national measures which bring about, de facto , a system of strict joint and several liability go beyond what is necessary to preserve the public exchequer’s rights (see Federation of Technological Industries and Others , paragraph 32). Imposing responsibility for paying VAT on a person other than the person liable to pay that tax, even where that person is an authorised tax warehouse-keeper bound by the specific obligations referred to in Directive 92/12, without allowing him to escape liability by providing proof that he had nothing whatsoever to do with the acts of the person liable to pay the tax must, therefore, be considered contrary to the principle of proportionality. It would clearly be disproportionate to hold that person unconditionally liable for the shortfall in tax caused by acts of a third party over which he has no influence whatsoever (see, to that effect, Netto Supermarkt , paragraph 23).
25. On the other hand, it is not contrary to European Union law to require the person other than the personal liable to pay the tax to take every step which could reasonably be required of him to satisfy himself that the transaction which he is effecting does not result in his participation in tax evasion (see, to that effect, Federation of Technological Industries and Others , paragraph 33; Teleos and Others , paragraph 65; and Netto Supermarkt , paragraph 24).
26. Accordingly, the fact that the person other than the person liable to pay the tax acted in good faith, exhibiting all the due diligence of a circumspect trader, that he took every reasonable measure in his power and that his participation in fraud is excluded are important points in deciding whether that person can be obliged to account for the VAT owed (see Teleos and Others , paragraph 66, and Netto Supermarkt , paragraph 25).