On December 21, 2011, the ECJ issued its decision in the case C-499/10 (Vlaamse Oliemaatschappij).
Context: Sixth VAT Directive – Persons liable to pay tax – Third party jointly and severally liable – Warehousing arrangements other than customs warehousing – Joint and several liability of the warehouse-keeper of the goods and the taxable person who owns the goods – Good faith or lack of fault or negligence of the warehouse-keeper
Article in the EU VAT Directive
Article 21(3) of the Sixth VAT Directive (Article 205 of of the EU VAT Directive 2006/112/EC).
Article 205 (Persons liable for payment of VAT to the tax authorities)
In the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.
Facts
- VOM is a service provider which unloads, stores in warehouses and transfers onto lorries petroleum products arriving by boat for its customers. The customers store the goods in those warehouses until they are sold to the final customer, mainly retail petrol filling stations. For those services, VOM invoices a ‘service fee’ which depends on the number of litres handled.
- VOM therefore operates a ‘tax warehouse’ within the meaning of Article 4(b) of Directive 92/12. In that capacity as warehouse-keeper, it has been the holder, since 7 September 1999, of a permit as a warehouse-keeper other than a customs warehouse-keeper for the storage of mineral oils.
- Pursuant to such an authorisation, goods deposited in that warehouse, in accordance with warehousing arrangements other than customs warehousing, are placed under suspensive VAT arrangements. When the goods are removed from the warehouse and either are no longer under warehousing arrangements other than customs warehousing, or are supplied for valuable consideration, VAT becomes chargeable in respect of those goods.
- Ghebra NV (‘Ghebra’) was a fuel wholesaler and stored its petroleum products in VOM’s warehouse. On 20 June 2003 Ghebra was declared insolvent.
- Following an audit by the tax authorities, a report was drawn up dated 7 February 2006. According to that report, fuel had been supplied for valuable consideration, and released from VOM’s warehouse, by Ghebra during March and April 2003. Since those supplies put an end to warehousing arrangements other than customs warehousing, they were subject to VAT and the amount due was EUR 2 133 005.
- After being informed by Ghebra’s trustee in bankruptcy that the Belgian State would not be paid the VAT owed, because there were insufficient assets, the tax authorities issued, on 11 April 2006, an order for recovery against VOM under Article 51a(3) of the Belgian VAT Code.
- On 31 May 2006 VOM lodged an objection against the order for recovery before the rechtbank van eerste aanleg te Brugge.
- In support of its action, VOM, submits, inter alia, that the joint and several liability of the warehouse-keeper for the VAT owed by the warehouse user under Article 51a(3) of the Belgian VAT Code is contrary to the general principles of legal certainty and proportionality, which form part of the European Union legal order, because it applies irrespective of whether or not the warehouse-keeper acted in good faith. It adds, in that regard, that the warehouse-keeper plays a passive role in the VAT arrangements applicable to warehouses, since he merely makes his warehouse available to his customers to allow goods to be stored and has no legal or fiscal means at his disposal to monitor or enforce the effective payment of VAT by his customers. Relying on the Court’s case-law, VOM considers that, by failing to take into account whether or not a person other than the person initially liable to pay a tax was aware that tax was due in holding him jointly and severally liable for that tax, and therefore excluding any criterion of good faith from the conditions under which a person may be held jointly and severally liable for the tax, the national legislation exceeds the limits of what is appropriate and necessary for the attainment of the objective that it pursues.
- The FOD Financiën considers that Article 51a(3) of the Belgian VAT Code complies with the principle of proportionality, that it is for the national court to monitor compliance with that principle and that joint and several liability is an appropriate and proportionate measure in the petroleum products sector.
Questions
Does [Article 21(3) of the Sixth Directive] in conjunction with [the Article 16(1)B(e) and the second subparagraph of Article 16(1) of that directive], authorise the Member States to provide that a warehouse-keeper other than a customs warehouse-keeper is jointly and severally liable, unconditionally, for the tax which is owing on a supply of goods made for valuable consideration by the owner of the goods who is liable for the tax on those goods, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him…
AG Opinion
None
Decision
Article 21(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/115/EC of 20 December 2001, must be interpreted as not authorising the Member States to provide that a warehouse-keeper other than a customs warehouse-keeper is jointly and severally liable for the value added tax which is owing on a supply of goods made for valuable consideration, and released from the warehouse, by the owner of the goods who is liable for the tax on those goods, even where the warehouse-keeper acts in good faith or where no fault or negligence can be imputed to him.
Summary
Art. 21(3 ) of the Sixth Directive must be interpreted as meaning that Member States are not permitted to provide that the holder of a warehouse other than a customs warehouse is jointly and severally liable for payment of the VAT due on a supply of goods shipped from that warehouse under consideration has been made by the taxable owner of these goods, even if this warehousekeeper acts in good faith or if he cannot be accused of fault or negligence.
Source:
Similar ECJ cases
- C-384/04 (Federation of Technological Industries and Others) – Jointly and severally liability of the payment of VAT
- C-499/13 (Macikowski) – Liability to pay VAT on the supply of immovable property in the context of a forced auction
- C-4/20 (ALTI) – Default interest also due by a person jointly liable to pay VAT
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