Oro Efectivo SL v Diputación Foral de Bizkaia.
Date: 2019-06-12
20


It should be noted, in that regard, that, under Article 401 of the VAT Directive, that directive is not to prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties or, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes, provided that the collecting of those taxes, duties or charges does not give rise, in trade between Member States, to formalities connected with the crossing of frontiers. Since EU law permits concurrent systems of taxation, it thus allows such taxes to be levied even where the charging of such taxes on a transaction which is already subject to value added tax may result in the double taxation of that transaction (see, to that effect, judgments of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona, C‑139/12, EU:C:2014:174, paragraph 28, and of 7 August 2018, Viking Motors and Others, C‑475/17, EU:C:2018:636, paragraph 26).
21


A literal interpretation of that provision leads to the conclusion that, in view of the negative condition in the expression ‘cannot be characterised as turnover taxes’, the maintenance or introduction by a Member State of taxes, duties or charges is authorised only on condition that they cannot be assimilated to a turnover tax (judgment of 7 August 2018, Viking Motors and Others, C‑475/17, EU:C:2018:636, paragraph 27).
22


Although the term ‘turnover tax’ is not defined in either Article 401 of the VAT Directive or any other provision of that directive, it must be pointed out that that article is, in essence, identical to Article 33 of the Sixth Directive (judgment of 7 August 2018, Viking Motors and Others, C‑475/17, EU:C:2018:636, paragraph 28).
23


In the cases which gave rise to the order of 27 November 2008, Renta (C‑151/08, not published, EU:C:2008:662), and the judgment of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona (C‑139/12, EU:C:2014:174), the Court ruled on the compatibility with Article 33(1) of the Sixth Directive of a national rule of law relating to a tax on transfers of assets for valuable consideration with similar characteristics to those of the duty at issue in the main proceedings. The Court, having recalled the essential characteristics of VAT established in its case-law, of which there are four, namely that VAT applies generally to transactions relating to goods or services, it is proportional to the price charged by the taxable person in return for the goods and services which he has supplied, it is charged at each stage of the production and distribution process, including that of retail sale, irrespective of the number of transactions which have previously taken place, and the amounts paid during the preceding stages of the production and distribution process are deducted from the VAT payable by a taxable person, with the result that that tax applies, at any given stage, only to the value added at that stage and the final burden of that tax rests ultimately with the consumer, considered that such a tax differs from VAT in such a way that it cannot be characterised as a turnover tax within the meaning of Article 33(1) of the Sixth Directive (order of 27 November 2008, Renta, C‑151/08, not published, EU:C:2008:662, paragraphs 32 and 45, and judgment of 20 March 2014, Caixa d’Estalvis i Pensions de Barcelona, C‑139/12, EU:C:2014:174, paragraph 29).
28


With regard to that principle, set out in recitals 4 and 7 of the VAT Directive, it should be pointed out that, in order to prevent outcomes which are inconsistent with the objective of ensuring that the same transactions are subject to the same conditions of taxation, irrespective of the Member State in which the transaction is carried out, pursued by the common system of VAT, any comparison of the characteristics of a tax, such as the duty at issue in the main proceedings, with those of VAT must be made in the light of that objective. In that connection, particular attention must be paid to the need to safeguard the neutrality of the common system of VAT at all times (see, to that effect, judgment of 7 August 2018, Viking Motors and Others, C‑475/17, EU:C:2018:636, paragraph 41).
29


However, as the European Commission rightly pointed out, the principle of fiscal neutrality in the field of VAT does not require such neutrality outside the framework of the harmonised system established by the VAT Directive. As the duty, in this case, is not harmonised under that directive, the neutrality of the common system of VAT cannot be undermined (see, to that effect, judgment of 24 October 2013, Metropol Spielstätten, C‑440/12, EU:C:2013:687, paragraph 57).