Keywords
Summary

Keywords

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1. Tax provisions - Harmonization of legislation - Turnover taxes - Common system of value added tax - Prohibition on the levying of other domestic taxes which can be characterized as turnover taxes - Aim - "Turnover taxes" - Meaning - Tax of the same type as the Danish employment market contribution - Inclusion

(Council Directive 77/388/EEC, Art. 33)

2. Tax provisions - Harmonization of legislation - Turnover taxes - Common system of value added tax - Prohibition on the levying of other domestic taxes which can be characterized as turnover taxes - Possibility for individuals of relying upon the relevant provision

(Council Directive 77/388/EEC, Art. 33)

3. Preliminary rulings - Interpretation - Effects of interpretative rulings ratione temporis - Retroactive effect - Judgment declaring a domestic tax incompatible with Community law - Exclusion on the ground of lack of uncertainty as to the extent of obligations under Community law

(EEC Treaty, Art. 177)

Summary

1. The purpose of Article 33 of the Sixth Directive 77/388/EEC, which prohibits Member States from introducing taxes, duties or charges which can be characterized as turnover taxes, is to prevent the functioning of the common system of VAT from being jeopardized by the introduction of taxes, duties or charges levied on the movement of goods and services in a way comparable to VAT. Taxes, duties and charges must in any event be regarded as taxation of that kind if they exhibit the essential characteristics of VAT, even though they do not resemble it in every respect.

That provision consequently precludes the introduction or maintenance of a tax of the same type as the Danish employment market contribution, which:

- is paid both on activities subject to VAT and on other industrial or commercial activities which consist in the supply of services for consideration;

- is charged, in the case of undertakings which are taxable persons for VAT purposes, on the same basis of assessment as that used for VAT, in other words as a percentage of the volume of sales after deduction of purchases;

- unlike VAT, is not paid on importation, but is charged on the full sale price of imported goods at the first sale in the Member State concerned;

- unlike VAT, does not have to be indicated separately on the invoices; and

- is charged alongside VAT.

2. Since the rule in Article 33 of the Sixth Directive 77/388/EEC prohibiting Member States from introducing taxes, duties or charges which can be characterized as turnover taxes is clear, precise and unconditional, it satisfies the conditions under which provisions of a directive can be relied upon by individuals before the national courts. That article therefore creates rights for the benefit of individuals which the national courts are obliged to protect.

3. The Court cannot accede to a Member State' s request to limit the effect ratione temporis of a preliminary ruling that a tax was levied in that State in contravention of Community law, if at the date when it was introduced, the prohibition with which it conflicted clearly arose from a provision of Community law whose scope had been defined by the Court, and the Commission, having been notified of the proposed tax, had swiftly drawn the attention of the authorities of the Member State concerned to the problems which its application could give rise to from the point of view of Community law.