Gabriel Bergandi v Directeur général des impôts.
Date: 1988-03-03
8 A COMMON SYSTEM OF VAT WAS INTRODUCED BY THE SECOND COUNCIL DIRECTIVE ( 67/228/EEC ) ON THE HARMONIZATION OF LEGISLATION OF MEMBER STATES CONCERNING TURNOVER TAXES - STRUCTURE AND PROCEDURES FOR APPLICATION OF THE COMMON SYSTEM OF VALUE-ADDED TAX ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 16 ) AND BY THE SIXTH DIRECTIVE . THAT SYSTEM WAS TO CONTRIBUTE TO THAT OBJECTIVE BY INTRODUCING, ON A BASIS COMMON TO ALL THE MEMBER STATES, A GENERAL TAX ON CONSUMPTION LEVIED ON THE SUPPLY OF GOODS, THE PROVISION OF SERVICES, AND IMPORTS IN PROPORTION TO THEIR PRICE, REGARDLESS OF THE NUMBER OF TRANSACTIONS TAKING PLACE AS FAR AS THE FINAL CONSUMER, THE TAX BEING IMPOSED ONLY ON THE VALUE ADDED AT EACH STAGE AND BEING DEFINITIVELY BORNE BY THE FINAL CONSUMER .
10 ACCORDINGLY, ARTICLE 33 OF THE SIXTH DIRECTIVE PERMITS A MEMBER STATE TO MAINTAIN OR INTRODUCE TAXES, DUTIES OR CHARGES ONLY IF THEY CANNOT BE CHARACTERIZED AS TURNOVER TAXES .
11 CONSEQUENTLY, IT MUST BE STATED IN REPLY TO THE FIRST QUESTION THAT ARTICLE 33 OF THE SIXTH DIRECTIVE MUST BE INTERPRETED AS MEANING THAT AS FROM THE INTRODUCTION OF THE COMMON SYSTEM OF VAT THE MEMBER STATES ARE NO LONGER ENTITLED TO IMPOSE ON THE SUPPLY OF GOODS, THE PROVISION OF SERVICES OR IMPORTS LIABLE TO VAT, TAXES, DUTIES OR CHARGES WHICH CAN BE CHARACTERIZED AS TURNOVER TAXES .
14 IN ORDER TO DECIDE WHETHER A TAX CAN BE CHARACTERIZED AS A TURNOVER TAX IT IS NECESSARY, IN PARTICULAR, TO DETERMINE, AS THE COURT STATED IN ITS JUDGMENT OF 27 NOVEMBER 1985 IN CASE 295/84 ( ROUSSEAU WILMOT SA V ORGANIC (( 1985 )) ECR 3759 ), WHETHER IT HAS THE EFFECT OF COMPROMISING THE FUNCTIONING OF THE COMMON SYSTEM OF VAT BY LEVYING A CHARGE ON THE MOVEMENT OF GOODS AND SERVICES AND ON COMMERCIAL TRANSACTIONS IN A WAY COMPARABLE TO VAT .
15 AS THE COURT EMPHASIZED IN ITS JUDGMENT OF 1 APRIL 1982 IN CASE 89/81 ( STAATSSECRETARIS VAN FINANCIEN V HONG KONG TRADE DEVELOPMENT COUNCIL (( 1982 )) ECR 1277 ), THE PRINCIPLE OF THE COMMON SYSTEM OF VAT CONSISTS, ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 2 OF THE FIRST DIRECTIVE, IN THE APPLICATION TO GOODS AND SERVICES OF A GENERAL TAX ON CONSUMPTION EXACTLY PROPORTIONAL TO THE PRICE OF THE GOODS AND SERVICES, WHATEVER THE NUMBER OF TRANSACTIONS WHICH TAKE PLACE IN THE PRODUCTION AND DISTRIBUTION PROCESS BEFORE THE FINAL STAGE AT WHICH TAX IS CHARGED .
16 THEREFORE, A TAX WHICH IS LEVIED SOLELY ON THE BASIS THAT AN ARTICLE IS PLACED AT THE DISPOSAL OF THE PUBLIC, REGARDLESS OF WHETHER IT IS ACTUALLY USED, AND WHICH IS NOT RELATED TO THE REVENUE ARISING THEREFROM, DOES NOT DISPLAY THE CHARACTERISTICS OF A GENERAL TAX ON CONSUMPTION LEVIED ON THE PRICE CHARGED FOR THE PROVISION OF SERVICES . THAT IS SO IN PARTICULAR WHERE THE TAX IS PAYABLE EVEN IF THE ARTICLE IN QUESTION IS MADE AVAILABLE TO THE PUBLIC FREE OF CHARGE .
24 AS THE COURT HELD IN ITS JUDGMENTS OF 27 FEBRUARY 1980 ( CASE 168/78 COMMISSION V FRANCE (( 1980 )) ECR 347; CASE 169/78 COMMISSION V ITALY (( 1980 )) ECR 385 AND CASE 171/78 COMMISSION V DENMARK (( 1980 )) ECR 447 ), WITHIN THE SYSTEM OF THE EEC TREATY, ARTICLE 95 SUPPLEMENTS THE PROVISIONS ON THE ABOLITION OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT . ITS AIM IS TO ENSURE FREE MOVEMENT OF GOODS BETWEEN THE MEMBER STATES IN NORMAL CONDITIONS OF COMPETITION BY THE ELIMINATION OF ALL FORMS OF PROTECTION WHICH MAY RESULT FROM THE APPLICATION OF INTERNAL TAXATION THAT DISCRIMINATES AGAINST PRODUCTS FROM OTHER MEMBER STATES . THUS ARTICLE 95 MUST GUARANTEE THE COMPLETE NEUTRALITY OF INTERNAL TAXATION AS REGARDS COMPETITION BETWEEN DOMESTIC PRODUCTS AND IMPORTED PRODUCTS .
25 THE COURT STATED IN THE SAME JUDGMENTS THAT ARTICLE 95 MUST BE INTERPRETED WIDELY SO AS TO COVER ALL TAXATION PROCEDURES WHICH, DIRECTLY OR INDIRECTLY, CONFLICT WITH THE PRINCIPLE OF EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS; THE PROHIBITION CONTAINED IN THAT ARTICLE MUST THEREFORE APPLY WHENEVER A FISCAL LEVY IS LIKELY TO DISCOURAGE IMPORTS OF GOODS ORIGINATING IN OTHER MEMBER STATES TO THE BENEFIT OF DOMESTIC PRODUCTION .