Keywords
Summary

Keywords

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1. Preliminary rulings ° Reference to the Court ° Need for both parties to have been heard ° Assessment by the national court

(EEC Treaty, Art. 177)

2. Preliminary rulings ° Reference to the Court ° Compliance of the decision to make a reference with the rules of national law governing the organization of the courts and their procedure ° Not a matter for the Court to verify

(EEC Treaty, Art. 177)

3. Tax provisions ° Harmonization of laws ° Turnover taxes ° Common system of value added tax ° Payment of the tax after it has become chargeable ° National system requiring taxable persons to make interim payments in the nature of advances ° Incompatibility with the Sixth Directive ° Possibility for individuals to rely on the corresponding provisions

(Council Directive 77/388, Arts 10 and 22(4) and (5))

Summary

1. Whilst, in the context of the procedure provided for by Article 177 of the Treaty, it may be in the interests of the proper administration of justice that a question should be referred to the Court for a preliminary ruling only after both sides have been heard, such a requirement is not among the conditions laid down for the implementation of that procedure. It is therefore for the national court alone to assess the need for hearing the defendant before making an order for reference.

2. In the context of the procedure provided for by Article 177 of the Treaty, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their procedure. The Court must therefore abide by the decision from a court of a Member State requesting a preliminary ruling in so far as it has not been overturned in any appeal procedures provided for by national law.

3. It is contrary to Article 10 and Article 22(4) and (5) of the Sixth Council Directive (77/388/EEC) ° which provide, first, that value added tax becomes chargeable at the time when the goods are delivered or the services are performed and, secondly, that the Member States may derogate from the rule that payment must be made when the periodical return is submitted by demanding interim payment ° for provisions of national law to require taxable persons to pay value added tax equal to 65% of the total chargeable amount in respect of a period which has not yet expired, with the result that taxable persons, in certain circumstances, have to pay tax on transactions which have not yet been carried out. Such legislation has the effect of transforming the interim payments into advances which are contrary to the rule of the directive under which Member States should require value added tax to be paid only in respect of transactions which have been performed.

Taxable persons required to make such payments may rely in the national court on the aforementioned provisions of the Sixth Directive.