Facts and questions have been released in the case C-331/23 (Dranken Van Eetvelde)
Context:
Article in the EU VAT Directive
Article 205 of the EU VAT Directive 2006/112/EC
Article 205
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
Facts:
The tax authorities carried out a tax investigation at the company Dranken Xx, applicant, regarding the application of value added tax in 2011. This company is identified as a VAT taxable person with declared activity ‘47252 Retail sale of beverages in specialized stores, general assortment’ and ‘46349 Wholesale of drinks general assortment’. Mr. XxPeter and XxJoris are the directors of the taxpayer. This investigation led to the suspicion of tax evasion. On the basis of this investigation, it was established that it drew up sales invoices for deliveries of kegs of beer and various other beverages to private individuals who either are unknown at the address indicated or have not ordered nor received the invoiced goods. However, these were supplied to a customer who is a taxable person, operator of a cafe/catering business, whose identity can no longer be traced. Due to the false invoices, these taxpayers made purchases from the plaintiff that they could sell in their café/catering business. This method offered the possibility of making sales with those purchased drinks that were not recorded under revenue and as such were not subject to VAT and income tax. A writ of execution was issued by the collection tax adviser-receiver of the legal entities collection team, which the plaintiff objected to. Several questions were put to the Constitutional Court of Belgium by interlocutory judgment. The Constitutional Court ruled that the Belgian VAT law does not violate either the Constitution or EU law.
Consideration:
Plaintiff claims, among other things, that the writ of execution and the imposition of fines be annulled; declare that no VAT can be due; to say that the applicant is not jointly and severally liable for the VAT and to say that the non bis in idem principle has been violated and that the fines must therefore be set aside for this reason. The defendant claims that the claim should be declared admissible and unfounded in all its parts. The referring court notes that the defendant does not put forward any reasons that could lead to the inadmissibility of the claim. Since the court has also not established any pleas of inadmissibility that it should raise ex officio, the claim is admissible.
Plaintiff argues that no one can be held unconditionally liable for someone else’s fraud. Such unconditional accountability goes beyond what is necessary to safeguard the rights of the Treasury and to combat tax fraud. The referring court notes that the law on VAT implies the same unconditional liability and could therefore be contrary to the principle of proportionality and/or the principle of neutrality with regard to VAT. In addition to these problems, the ‘ne bis in idem principle’ was also discussed. The application of this principle would be applied differently depending on whether it relates to income tax or VAT. The problem of the cumulation of an administrative sanction and a criminal sanction related to unity of intent is also an important legal question that requires an assessment against the general principles of EU law. The ne bis in idem principle is a general principle of law, according to which a second criminal trial of the same person for the same offenses is excluded after a first final trial of a criminal nature. This general legal principle is guaranteed by Article 50 of the European Charter. after a first final trial of a criminal nature. This general legal principle is guaranteed by Article 50 of the European Charter. after a first final trial of a criminal nature. This general legal principle is guaranteed by Article 50 of the European Charter.
Questions
1) Violates art. 51 bis, §4 WBT Article 205 Rl; 2006/112 jo the principle of proportionality now that this provision provides for unconditional full liability and the court cannot assess this in function of everyone’s contribution to the tax fraud?
2) Violates art. 5Ibis § 4 VAT Code art. 205 of Directive 2006/112 on the common system of VAT, in conjunction with the principle of neutrality with regard to VAT, if this provision is to be interpreted as meaning that one is jointly and severally liable to pay the VAT instead of the legal debtor, without having to take into account be held accountable for the deduction of VAT that the legal debtor can exercise?
3. Is Article 50 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that it does not preclude national legislation allowing for the accumulation of (administrative and criminal) sanctions of a criminal nature resulting from different proceedings , pre-offences which are materially the same, but which have taken place in successive years (but which would be regarded in criminal terms as a continued crime with unity of intent), and where the offenses are prosecuted for one year and the offenses for another year be prosecuted criminally? Are these facts not regarded as inextricably linked because they occurred in successive years?
4. Is Article 50 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that it does not preclude national legislation under which a person may be subject to proceedings for the imposition of an administrative fine of a criminal nature? be instituted for offenses for which he has already been convicted of a criminal offense, the two proceedings being carried out completely independently of each other, and the only guarantee that the severity of all the sanctions imposed corresponds to the seriousness of the offense in question consists in the fact that that the tax court can carry out a proportionality test on the merits,while the national legislation does not provide for rules in this regard, nor does it provide for rules that allow the administrative authorities to take into account the criminal sanction already imposed?
AG Opinion
Decision
20 The costs incurred by the German Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
Summary
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