1.The company Gaston Schul makes the preliminary point that the delivery of the boat in question to the previous owner had been subject in France to turnover tax and the previous owner did not obtain in relation to the export to the Netherlands a refund of the tax he had paid.(a) As to the first question, Schul points out that according to the case-law of the Court the prohibition in Article 13 (2) of the Treaty in principle refers to all pecuniary charges unilaterally imposed, whatever they are called and whatever the manner of their imposition, payable on goods imported from another Member State when they cross the border. The only exemption from that prohibition is pecuniary charges which are part of a general system of internal taxation applying systematically in accordance with the same criteria and at the same marketing stage to domestic and imported products.In the present case it is to be observed that although in the Netherlands the turnover tax levied on the imponed boat comes under a “general system of internal taxation applied systematically ... to domestic products and imported products” within the meaning of the judgment of the Court of 28 June 1978 in Case 70/77 Simmenthal [1978] ECR 1453, this taxation is not applied according to the same criteria or at the same marketing stage. The criteria rue different because domestic products are not subject to turnover tax where the sale is by a private person; the marketing stage is not the same because the tax is not levied on domestic products at the stage of delivery on sale by private persons.Accordingly, the first question calls for the following answer:“Turnover tax which a Member State levies on the importation of goods from another Member State which are supplied by a private person must be considered as a charge having effect equivalent to customs duties on imports within the meaning of Article 13 (2) of the Treaty if turnover tax is not levied on the supply by a private person of goods which are already in that Member State.”(b) As to the second question Schul points out that, according to the case-law of the Court, in applying Article 95 it is necessary to take into account, not only the rate of taxation, but also the provisions as to the basis of assessment and the conditions for the levying of the various taxes since the decisive criterion for comparison is the effective incidence of each tax on the domestic products on the one hand and imported products on the other.The Netherlands legislation provides a different basis of assessment for the levying of the turnover tax in that domestic products are liable to the tax only when the supply is effected for a consideration to the taxable person whereas imported products are liable simply by reason of their importation. That difference has a real effect upon domestic and imported products for even if the rate is the same the charge is different in view of the fact that the basis of assessment for the imported product includes the turnover tax paid in another Member State.As a result, the second question, submitted in the event of the first question's being answered in the negative, calls for the following answer:“Turnover tax which a Member State levies on the importation of goods from another Member State supplied by a private person must be considered as internal taxation in excess of that imposed on similar domestic products and falling within Article 95 of the Treaty if no turnover tax is levied on the supply by a private person of goods already in that Member State.”(c) As regards the third question Article 2, point 2. of the Sixth Directive, instead of encouraging the free movement of goods, constitutes an obstacle thereto which may be assimilated to a charge having equivalent effect. That provision is invalid in so far as either it provides no exemption on importation where the supply is by private persons or fails to avoid double taxation in some other way, for example by providing that upon exportation from another Member State the turnover tax levied in that other Member State will be refunded in whole or in part.Consequently the third question calls for the following answer:“Article 2, point 2, of the Sixth Directive on the harmonization of the laws of the Member States relating to turnover taxes is incompatible with the Treatv and therefore invalid in so far as that provision requires Member States to subject the importation of goods from other Member States to value-added tax:— Either without making any exception for goods supplied by private persons which, if supplied within the Member State concerned, would not be subject to that tax;— or without taking other measures to avoid double taxation on the movement between Member States of goods belonging to private persons.”(d) As to the fourth question it is contended that in so far as Article 2, point 2, of the Sixth Directive is invalid it cannot affect the obligations on Member States under Articles 15 and 95 of the Treaty.As a result the answer to the fourth question is as follows:“The answer to the third question implies that in the present state of Community law a Member State is not permitted to charge value-added tax on the importation of goods from another Member State supplied by a private person if the supply of those goods by a private person within the Member State is not subject to that tax.”
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