British American Tobacco International Ltd and Newman Shipping & Agency Company NV v Belgische Staat.
Date: 2005-07-14
28. Second, even if it were assumed that national legislation provides for that possibility in such a case, the conditions of evidence required for reimbursement could seldom be satisfied. It is apparent from the Belgian Government’s answer to a written question from the Court, relating to those conditions of evidence, that the victim of a theft of goods can obtain repayment of the VAT only if he succeeds in showing, first, that the goods have indeed been stolen and, second, that they have not been put on the market after the theft. That requirement of the proof of a negative, which is moreover outside the knowledge of the victim of the theft, makes it virtually impossible to make use of the right to repayment (see, to that effect, concerning the repayment of charges levied in breach of Community law, Case 199/82 San Giorgio  [1983] ECR 3595, paragraph 14, and Case C‑343/96 Dilexport  [1999] ECR I‑579, paragraph 48).
32. First, as the applicants in the main proceedings and the Commission rightly observe, the theft of goods, by definition, does not give rise to any financial counterpart for the victim of the theft. It therefore cannot as such be regarded as a supply of goods ‘for consideration’ within the meaning of Article 2 of the Directive (see, to that effect, Case C‑16/93 Tolsma  [1994] ECR I‑743, paragraph 14).
35. It follows from the wording of that provision that the concept of supply of goods does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner. That concept is in accordance with the purpose of the Directive, which is designed inter alia to base the common system of VAT on a uniform definition of taxable transactions (Case C‑320/88 Shipping and Forwarding Enterprise Safe  [1990] ECR I‑285, paragraphs 7 and 8).
36. The theft of goods makes the thief the mere possessor of the goods. It does not have the effect of empowering him to dispose of the goods under the same conditions as their owner. A theft cannot therefore be regarded as effecting a transfer, within the meaning of Article 5(1) of the Directive, from the victim to the thief.
38. The illegal importation and supply of goods such as the manufactured tobacco at issue in the main proceedings, which are not prohibited by their very nature or because of their special characteristics, are admittedly subject to VAT, since those goods are capable of being lawfully marketed and introduced into economic channels. Moreover, the principal of fiscal neutrality prevents any general distinction between lawful and unlawful transactions (see, to that effect, Case C‑455/98 Salumets and Others  [2000] ECR I‑4993, paragraphs 19 and 20).
41. As to the circumstance that goods are, like those at issue in the main proceedings, subject to excise duty, that has no bearing on the answer to be given to the national court. No provision of the Directive links the chargeability of VAT to excise duty. The chargeable event for VAT, by virtue of which the legal conditions necessary for tax to become chargeable are fulfilled, is the supply or importation of the goods, not the levying of excise duty on them.
44. As the Court has already held, the national derogating measures referred to in Article 27(5) of the 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 Directive except within the limits strictly necessary for achieving that aim (Case C‑63/96 Skripalle  [1997] ECR I‑2847, paragraph 24). The authorisation given pursuant to Article 27(5) of the Directive cannot extend beyond the purpose on the basis of which it was requested (see, to that effect, Skripalle , paragraph 30).
45. As the Belgian Government concedes, the sole purpose of the measures which the Kingdom of Belgium was authorised to retain pursuant to Article 27(5) of the Directive is to ‘facilitate monitoring of the charging of VAT’ by providing, in particular, that VAT is to be levied at the same time as excise duty, before the chargeable event for the tax occurs. Those measures thus relate to the time at which VAT becomes chargeable, so as to make it coincide with the time at which excise duty is levied. They do not concern the rules for determining the transactions subject to VAT, and cannot therefore create a new category of taxable transactions not provided for in the Directive.
46. The retention of those measures was indeed authorised by the Council for the purpose both of simplifying the procedure for charging the tax and of countering tax evasion or avoidance, as is shown by the wording of the notification made pursuant to Article 27(5) of the Directive (‘to facilitate monitoring of the charging of VAT’). However, the fact that the purpose of the authorisation was also to combat tax evasion or avoidance did not have the consequence of empowering the Kingdom of Belgium to subject transactions to VAT other than those set out in Article 2 of the Directive.
47. In any event, contrary to the submissions of the Greek Government, the creation of a category of transactions falling within the scope of VAT, not provided for in Articles 2 and 10 of the Directive, cannot be regarded as a derogation that is strictly necessary for preventing the risk of tax evasion or avoidance, and therefore cannot lawfully be adopted or retained on the basis of Article 27(5) of the Directive (see, to that effect, concerning too general amendments to the basis for charging VAT, Commission  v Belgium , paragraph 31, Case C‑131/91 ‘K’ Line Air Service Europe  [1992] ECR I‑4513, paragraphs 24 and 25, and Skripalle , paragraphs 26 and 31).