Vereniging Happy Family Rustenburgerstraat v Inspecteur der Omzetbelasting.
Date: 1988-07-05
17 Since the harmfulness of narcotic drugs is generally recognized, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes . As the Court has already held with regard to the illegal importation of narcotic drugs into the Community, in its judgment in Einberger, such drugs are, by definition, subject to a total prohibition on importation and marketing in the Community . The Court added that such goods, whose release into the economic and commercial channels of the Community is absolutely precluded and whose illegal importation can give rise only to penalties under the criminal law, are wholly alien to the provisions of the Sixth Directive on the definition of the basis of assessment and, in consequence, to the provisions on the origination of a turnover tax debt .
20 It must be acknowledged that the principle of fiscal neutrality does in fact preclude, as far as the levying of value-added tax is concerned, a generalized differentiation between lawful and unlawful transactions . However, that is not true in the case of the supply of products, such as narcotic drugs, which have special characteristics inasmuch as, because of their very nature, they are subject to a total prohibition on their being put into circulation in all the Member States, with the exception of strictly controlled economic channels for use for medical and scientific purposes . In a specific situation of that kind where all competition between a lawful economic sector and an unlawful sector is precluded, the fact that no liability to value-added tax arises cannot affect the principle of fiscal neutrality .
25 In that connection it must be observed at the outset that, according to the documents before the Court, drugs derived from hemp, although described in some Member States as "soft drugs", are the subject of a total legal prohibition on importation and marketing in the Community . In addition, that type of drug is among the substances which may, in particular, be imported and marketed only for medical and scientific purposes, pursuant to the Single Convention on Narcotic Drugs, 1961 ( United Nations Treaty Series, 520, No 7515 ), to which all the Member States are now parties .
29 It must be observed first that the total prohibition on the marketing of narcotic drugs is not affected by the mere fact that, in view of their - obviously limited - manpower and means and in order to use the available resources for combating narcotic drugs in a concentrated manner, the national authorities responsible for implementing that prohibition give lower priority to bringing proceedings against a certain type of trade in drugs, because they consider other types to be more dangerous . Above all, such an approach cannot put illegal drugs dealing on the same footing as economic channels which are strictly controlled by the competent authorities in the medical and scientific field . The latter trade is actually legalized whereas prohibited dealings, albeit tolerated within certain limits, remain illegal and may at any time be the subject of police action when the competent authorities consider such action to be appropriate .