Wilfried Lange v Finanzamt Fürstenfeldbruck.
Date: 1993-08-02
11 In Case 294/82 Senta Einberger v Hauptzollamt Freiburg [1984] ECR 1177, in Case 269/86 Mol v Inspecteur der Invoerrechten en Accijnzen [1988] ECR 3627 and in Case 289/86 Happy Family v Inspecteur der Omzetbelasting [1988] ECR 3655, which related to the illegal importation into the Community of narcotic drugs and their unlawful supply for consideration within the territory of a Member State, the Court held that no liability to turnover tax arose upon the unlawful import of drugs into the Community or on their unlawful supply for consideration within the territory of a Member State, in so far as the products in question were not confined within economic channels strictly controlled by the competent authorities for use for medical and scientific purposes. On the subject of the importation of counterfeit currency, the Court held, similarly, that its considerations concerning the illegal importation of drugs applied, a fortiori, to imports of counterfeit currency (Case C-343/89 Witzemann v Hauptzollamt Muenchen-Mitte [1990] ECR I-4477, paragraph 20).
12 In those judgments, the Court added that illegal imports or supplies of such goods, whose release into the economic and commercial channels of the Community was by definition absolutely precluded and which could give rise only to penalties under the criminal law, were wholly alien to the provisions of the Sixth Directive (see the judgments in Case 294/82, cited above, at paragraphs 19 and 20, in Cases 269/86 and 289/86, cited above, at paragraphs 15 and 17 in each case, and in Case C-343/89, cited above, at paragraph 19). Those judgments therefore concern products which, because of their special characteristics, may not be marketed or incorporated into economic channels.
16 The Sixth Directive, whose purpose is to achieve widespread harmonization in the area of VAT, is based on the principle of fiscal neutrality. That principle, as the Court has stated, precludes a generalized differentiation between lawful and unlawful transactions, except where, because of the special characteristics of certain products, all competition between a lawful economic sector and an unlawful sector is precluded (see Case 269/86, paragraph 18, and Case 289/86, at paragraph 20).
17 That is not the case where there is no absolute prohibition based on the nature of the goods or their special characteristics, but where only the export of those goods to certain destinations is prohibited, because of their possible use for strategic purposes. Such a prohibition cannot, therefore, be sufficient to remove those products from the scope of the Sixth Directive.
The first question
19 In accordance with the principle of fiscal neutrality on which the Sixth Directive is based, that provision entails no distinction, as far as exemptions are concerned, between lawful and unlawful exports. When the latter consist of goods which fall within the scope of the Sixth Directive, they must accordingly be treated in the same manner as lawful exports of the same goods.
22 Consequently, if the aim of the refusal by a Member State to allow for an export transaction a VAT exemption laid down by the Sixth Directive is to penalize the breach of a national provision requiring authorization for such an export, the refusal serves a purpose alien to that of the Sixth Directive.