Vandoorne NV v Belgische Staat.
Date: 2011-01-27
25. At the outset, it is necessary to point out that it is not for the Court, in the context of the procedure provided for in Article 267 TFEU, to determine whether national provisions are compatible with European Union law. The Court does, however, have jurisdiction to provide the national court with all the criteria for the interpretation of European Union law which may enable it to assess whether those provisions are so compatible in order to give judgment in the proceedings before it (see, inter alia, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana  [2007] ECR I‑5869, paragraph 30, and Joined Cases C‑379/08 and C‑380/08 ERG and Others  [2010] ECR I‑0000, paragraph 25).
27. It must be recalled in this regard that the national derogating measures referred to in Article 27(1) and (5) of the Sixth 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 and may not derogate from the basis for charging VAT laid down in Article 11 of that directive, except within the limits strictly necessary for achieving that aim (see Case 324/82 Commission  v Belgium  [1984] ECR 1861, paragraph 29, and Case C-63/96 Skripalle  [1997] ECR I-2847, paragraph 24). Those measures must also be necessary and appropriate for realising the specific objective which they pursue and have as little effect as possible on the objectives and principles of the Sixth Directive (Joined Cases C‑177/99 and C‑181/99 Ampafrance and Sanofi  [2000] ECR I‑7013, paragraph 60, and Case C‑17/01 Sudholz  [2004] ECR I‑4243, paragraph 46).
28. In the present case, it appears that, in the same way as the Netherlands scheme at issue in Case C‑494/04 Heintz van Landewijck  [2006] ECR I‑5381 (see paragraphs 24, 44, 54 and 62 of that judgment), the purpose and effect of the derogation scheme contained in the national rules at issue in the main proceedings permitting VAT to be charged by means of tax labels is both to prevent tax evasion and abuse and to simplify the levying of the tax, which takes place, by virtue of the derogation scheme in question, at a single point in the product marketing chain, by providing that VAT is to be levied at the same time as excise duty, before the occurrence of the chargeable event within the meaning of Article 10 of the Sixth Directive. That scheme thus relates to the time at which VAT becomes chargeable, so as to make it coincide with the time at which excise duty is levied (see Case C‑435/03 British American Tobacco and Newman Shipping  [2005] ECR I‑7077, paragraphs 45 and 46).
29. Furthermore, it is common ground that, also in the same way as the Netherlands scheme at issue in Heintz van Landewijck  (paragraph 55), the scheme here at issue, as is apparent both from Article 58(1) of the VAT Code and from the content of the notification provided by the Kingdom of Belgium pursuant to Article 27(5) of the Sixth Directive, set out in paragraph 12 of the present judgment, applies the amount of the VAT due to the price of the products at the final consumption stage, that amount being determined by reference to the retail price to be paid by the consumer.
30. In that regard, it must be recalled that Article 27(1) of the Sixth Directive precludes only measures which might affect, to a non-negligible extent, the amount of tax due at the final consumption stage (see Joined Cases 138/86 and 139/86 Direct Cosmetics and Laughtons Photographs  [1988] ECR 3937, paragraph 52, and Heintz van Landewijck , paragraph 57).
31. However, even though, in certain circumstances, such as the loss of goods, their sale at a loss or unlawful sale at a price different from the retail price indicated on the tax labels, the manufacturer or importer may, in the context of a scheme such as that at issue in the main proceedings, be obliged to pay an amount of VAT which is higher than that which would have resulted from the application of the ordinary harmonised system for levying VAT, the mere possibility that such events may take place is not sufficient, however, to justify the conclusion that that scheme might affect, to a non-negligible extent, the amount of tax due at the final consumption stage (see, to that effect, Heintz van Landewijck , paragraphs 56 to 58). Indeed, a simplification measure implies, by definition, a more general approach than that of the rule which it replaces and thus will not necessarily reflect the exact situation of each taxable person ( Sudholz , paragraph 62).
32. It follows that a scheme such as that at issue in the main proceedings does not disregard the criteria set out in Article 27(1) of the Sixth Directive and, for the same reasons, does not go beyond what is necessary in order to simplify the procedure for charging VAT and to combat tax evasion or avoidance (see, to that effect, Heintz van Landewijck , paragraphs 58 and 59).
43. In addition, it must be pointed out that the fact of allowing an intermediate supplier, under such a scheme, to obtain reimbursement of an amount, or even the full amount, of VAT in the case where the purchaser, pleading, inter alia, its own insolvency, fails to pay for supplies, is, as the Belgian and Czech Governments have pointed out in their observations, as likely to complicate significantly the charging of VAT as it is to encourage avoidance and evasion, whereas the simplification of the charging of VAT and the prevention of such avoidance and evasion are precisely the objectives pursued by that scheme, in accordance with Article 27(1) of the Sixth Directive (see, by way of analogy, Heintz van Landewijck , paragraphs 43, 62 and 65, and Case C‑374/06 BATIG  [2007] ECR I‑11271, paragraph 39).
44. As the Court has already held, the cigarette market particularly lends itself to the development of unlawful trade (see Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 87; Case C‑222/01 British American Tobacco  [2004] ECR I‑4683, paragraph 72; and BATIG , paragraph 34).