Judgment_paragraph 2.5. · 42/83

2.5.As regards the fourth question, the Danish Government considers that it is devoid of purpose, in view of the negative reply proposed for the third question.It observes that, if the Court should nevertheless consider that the third question calls for an affirmative reply, the necessary consequence would be that a series of rules contained in the Sixth Directive would have to be regarded as contrary to the Treaty.The Danish Government considers that an affirmative reply to the third question would be based on the assumption that the rules relating to import VAT and to the net tax liability of undertakings are uniform; that result cannot be obtained merely by means of the rules relating to tax periods and time-limits for payment of VAT; it would be necessary in any case, for the purpose of payment of import VAT and discharge or the net tax liability, to render uniform the rules affecting the amount of tax in respect of which credit may be granted.In that regard it emphasizes the most important differences between the rules of the Sixth Directive concerning the net tax liability and those concerning import VAT and cites the following, provisions: with regard to taxable transactions, Articles 2, 5 and 6 in comparison with Article 7; Article 10 concerning the chargeable event and the chargeability of the tax; Article 11 A compared with Article 14, regarding exemptions; Article 16 (2) regarding exemptions from VAT within the country for goods or services intended for export; the rules of Title XI on deductions; Article 21 concerning the persons liable to pay tax; and Article 22, in comparison with Article 23, with regard to tax periods and time-limits for payment.The Danish Government observes that it would be difficult to maintain with respect to taxable persons the difference which the Court expressly admitted in its judgment in Gaston Schul and, since the majority of the provisions of the Sixth Directive are based on a fundamental distinction between tax charged on transactions under the internal system and tax charged on importation, it must be left to the Community legislature to decide on the appropriate measures for eliminating such considerable conflicts with the Treaty.The Danish Government considers that a judgment to the effect that any difference between rules concerning tax on transactions under the internal system and tax on importation is contrary to Article 95 would thus create considerable legal uncertainty in the Member States, if the courts and administrative authorities in the Member States had to apply the judgment, in view of the many ways in which it would be possible to eliminate that difference. It considers that such a situation would endanger the common basis of assessment for VAT and might perhaps influence the determination of the own resources of the Community.The Danish Government observes thatthe Court has held on several occasions that Article 95 is directly applicable and that the practice so far followed by the Court must be taken to mean that directives adopted by the Council may, where appropriate, be held to be invalid if they are contrary to Article 95. It adds that, according to well-established case-law of the Court, in so far as it is not possible to circumscribe a specific part of a provision which is contrary to law, it is for the competent Community institutions to take the necessary measures to remedy the incompatibility of those provisions with the Treaty (Judgments of 19. 10. 1977 in Joined Cases 117/76 and 16/77, “Quellmehl”, [1977] ECR 1753, and in Joined Cases 124/76 and 20/77, “Maize Groats and Meal”, [1977] ECR 1795).The Danish Government observes that, if the legislation at issue had been a regulation, it would have been reasonable for the Court to apply the second paragraph of Article 174 of the Treaty by analogy and to indicate which of the effects of the regulation declared void were to be regarded as definitive (judgment of 15. 10. 1980 in Case 4/79, Providence agricole de la Champagne [1980] ECR 2823). It adds that, in view of the fact that in its judgment of 19 January 1982 (Case 8/81 Ursula Becker [1982] ECR 53) the Court held that in any event certain provisions of Directive 77/388/EEC were directly applicable, the Court should consider applying the second paragraph of Article 174 by analogy in a situation such as the present, even though the legislation in question is a directive, and invites the Court to state, in this case, that the provisions of national law intended to implement the directive must continue to apply until the Council has amended the directive.The Danish Government submits that if, contrary to its expectations, the Court should reply to the third question in the affirmative, it would nevertheless be appropriate to reply to the fourth question in the negative, in view of the fact that the amendments made necessary by any invalidation of the directive at the present stage of harmonization of the VAT system are such that those amendments could only be adopted by the legislature.