The ECJ released the facts and questions in the case T-596/24 (CIT Coin Invest).
Context:
Summary
- Case Overview: CIT Coin Invest AG appealed against a decision by the Austrian Federal Finance Court regarding the imposition of import turnover tax on gold coins imported from Liechtenstein to Austria, arguing that the coins should be exempt as investment gold under Directive 2006/112/EC.
- Legal Dispute: The Federal Finance Court ruled that the gold coins did not qualify for tax exemption because their price exceeded the open market value of the gold content by more than 80%, whereas CIT Coin Invest AG contends that inclusion in the EU Commission’s published list should automatically grant tax exemption.
- Questions for CJEU: The Austrian Supreme Administrative Court referred questions to the CJEU to clarify whether inclusion in the EU Commission’s list guarantees tax exemption regardless of other criteria and to interpret the requirements for gold coins to be considered legal tender under Directive 2006/112/EC.
Articles in the EU VAT Directive
Articles 344, 345 and 346 of the EU VAT Directive 2006/112/EC.
Article 344 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax reads:
(1) For the purposes of this Directive, and without prejudice to other Community provisions, ‘investment gold’ shall mean:
- 1. gold, in the form of a bar or a wafer of weights accepted by the bullion markets, of a purity equal to or greater than 995 thousandths, whether or not represented by securities;
- 2. gold coins of a purity equal to or greater than 900 thousandths and minted after 1800, which are or have been legal tender in the country of origin, and are normally sold at a price which does not exceed the open market value of the gold contained in the coins by more than 80%.
(2) Member States may exclude from this special scheme small bars or wafers of a weight of 1 g or less.
(3) For the purposes of this Directive, the coins referred to in point (2) of paragraph 1 shall not be regarded as sold for numismatic interest.’
Article 345 of Directive 2006/112/EC reads:
Starting in 1999, each Member State shall inform the Commission by 1 July each year of the coins meeting the criteria laid down in point (2) of Article 344(1) which are traded in that Member State. The Commission shall, before 1 December each year, publish a comprehensive list of those coins in the ‘C’ series of the Official Journal of the European Union. Coins included in the published list shall be deemed to fulfil those criteria throughout the year for which the list is published.’
Article 346 of Directive 2006/112/EC reads:
Member States shall exempt from VAT the supply, the intra-Community acquisition and the importation of investment gold, including investment gold represented by certificates for allocated or unallocated gold or traded on gold accounts and including, in particular, gold loans and swaps, involving a right of ownership or claim in respect of investment gold, as well as transactions concerning investment gold involving futures and forward contracts leading to a transfer of right of ownership or claim in respect of investment gold.
Facts & Background
- Parties Involved:
- Appellant: CIT Coin Invest AG (a company based in Balzers, Liechtenstein).
- Respondent Authority: Zollamt Österreich (Customs Office Austria).
- Legal Process:
- The case is an appeal on a point of law brought by CIT Coin Invest AG against a decision by the Bundesfinanzgericht (Federal Finance Court, Austria) concerning import turnover tax (ITT).
- The appeal is being reviewed by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), which has referred several questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling.
- Timeline:
- Decision of the Bundesfinanzgericht: 10 August 2021.
- Decision to refer questions to the CJEU: 24 October 2024.
- Date lodged with the CJEU: 8 November 2024.
- Background:
- CIT Coin Invest AG moved several coin sets from the ‘300 Years of Liechtenstein’ series from Liechtenstein to Austria on 10 May 2019.
- These coin sets included two silver coins, three gold coins with face values of 10 francs, 25 francs, and 100 francs, and a special stamp.
- The coins were developed and produced by Liechtensteinische Post AG in collaboration with CIT Coin Invest AG.
- Dispute:
- Upon importation, CIT Coin Invest AG applied for release for free circulation under customs and tax law, submitting a customs invoice with a turnover tax rate of 20%.
- The customs office notified CIT Coin Invest AG of the ITT, which was subsequently paid.
- CIT Coin Invest AG later applied for a reimbursement of the ITT paid, arguing that the gold coins should be classified as exempt investment gold under Directive 2006/112/EC.
- Key Legal Issues:
- The dispute revolves around whether the gold coins qualify for tax exemption as investment gold under Directive 2006/112/EC.
- The Federal Finance Court rejected the reimbursement application, stating that the gold coins did not meet the criteria for tax exemption because their price exceeded the open market value of the gold content by more than 80%.
- CIT Coin Invest AG argues that inclusion in the list published by the Commission in the Official Journal of the European Union should guarantee tax exemption, regardless of whether other criteria were met at the time of importation or issuance.
- Questions Referred to the CJEU:
- Interpretation of Articles 345 and 346 of Directive 2006/112/EC regarding the conditions under which gold coins are deemed to meet the criteria for tax exemption.
- Relevance of whether the gold coins met the criteria at the time of their first issuance or at the time of the list’s publication.
- Whether gold coins that are included in the list but do not meet all the criteria laid down in Article 344 of the Directive at the time of importation are still eligible for tax exemption.
- Interpretation of the legal tender criterion for the gold coins under Article 344 of Directive 2006/112/EC.
Questions
1. Are Articles 345 and 346 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as meaning that gold coins included in the list published annually by the Commission in the Official Journal of the European Union are always deemed to meet the criteria laid down in Article 344 of Directive 2006/112/EC and are therefore deemed to be coins covered by the tax exemption provided for in Article 346 of Directive 2006/112/EC, even if those gold coins did not meet the criteria laid down in Article 344 of Directive 2006/112/EC when they were imported?
2. Is it relevant to the answer to Question 1 that those gold coins did not meet the criteria laid down in Article 344 of Directive 2006/112/EC when they were
first issued?
3. Is Article 345 of Directive 2006/112/EC to be interpreted as meaning that gold coins are deemed to be included in the list published annually by the Commission in the Official Journal of the European Union if they have a corresponding face value as stated in that list, even if those gold coins did not meet the criteria laid down in Article 344 of Directive 2006/112/EC when they were first issued?
4. Is it relevant to the answer to Question 3 that those gold coins did not meet the criteria laid down in Article 344 of Directive 2006/112/EC when the aforementioned list was published?
5. Is Article 345 of Directive 2006/112/EC to be interpreted as meaning that gold coins are deemed to be included in the list published annually by the Commission in the Official Journal of the European Union if they have a corresponding face value as stated in that list and they meet the criteria laid in Article 344 of Directive 2006/112/EC but are minted (and issued) only after publication of the list and do not constitute further issues of gold coins already expressly stated in the list?
6. Is point (2) of Article 344(1) of Directive 2006/112/EC to be interpreted as meaning that gold coins are to be regarded as legal tender in their country of origin within the meaning of that provision if, on the basis of national statutory provisions, they must be accepted at face value only by public-sector cash offices and by the company in which the public authorities hold a majority interest that minted and issued those gold coins, but not by all creditors in regular payment transactions?
ECJ Cases referred to
- C-416/17, European Commission v. French Republic: This case is cited to underline that the interpretation of EU law must sometimes be referred to the CJEU for clarification, as it might not be so obvious as to leave no scope for any reasonable doubt.
Source
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