Garage Molenheide BVBA (C-286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV (BRD) (C-401/95) and Sanders BVBA (C-47/96) v Belgische Staat.

• Jurisdiction: European Union
• Celex Number: 61994CJ0286
• ECLI: ECLI:EU:C:1997:623
• Docket Number: C-47/96,C-286/94,,C-340/95,,C-401/95
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 18 December 1997

Avis juridique important

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61994J0286

Judgment of the Court (Fifth Chamber) of 18 December 1997. - Garage Molenheide BVBA (C-286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV (BRD) (C-401/95) and Sanders BVBA (C-47/96) v Belgische Staat. - References for a preliminary ruling: Hof van Beroep Antwerpen, Rechtbank van eerste aanleg Brussel, Rechtbank van eerste aanleg Brugge - Belgium. - Sixth Directive 77/388/EEC - Scope - Right to deduction of VAT - Retention of balance of VAT due - Principle of proportionality. - Joined cases C-286/94, C-340/95, C-401/95 and C-47/96.

European Court reports 1997 Page I-07281

Parties
Grounds
Decision on costs
Operative part

Parties

In Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hof van Beroep te Antwerpen (Belgium) (C-286/94 and C-340/95), the Rechtbank van Eerste Aanleg te Brussel (C-401/95) and the Rechtbank van Eerste Aanleg te Brugge (Belgium) (C-47/96) for a preliminary ruling in the proceedings pending before that court between

Garage Molenheide BVBA (C-286/94), Peter Schepens (C-340/95), Bureau Rik Decan-Business Research & Development NV (BRD) (C-401/95), Sanders BVBA (C-47/96)

and

Belgian State

on the interpretation of Article 18(4) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1),

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida, P. Jann (Rapporteur) and L. Sevón, Judges,

Advocate General: N Fennelly,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- Garage Molenheide BVBA, by V. Dauginet, of the Antwerp Bar,

- Bureau Rik Decan-Business Research & Development NV (BRD) and Sanders BVBA, by L. Vandenberghe and R. Tournicourt, of the Brussels Bar,

- the Belgian Government, by J. Devadder, Counsellor General, Ministry of Foreign Affairs, External Trade and Development Cooperation, acting as Agent,

- the Greek Government (C-340/95, C-401/95 and C-47/96), by F. Georgakopoulos, Deputy Legal Adviser, Legal Council of State, and A. Rokophyllou, Special Adviser to the Deputy Minister of Foreign Affairs, acting as Agents,

- the Italian Government (C-286/94, C-340/95 and C-401/95), by Professor Umberto Leanza, Head of the Department of Contentious Diplomatic Affairs, Ministry of Foreign Affairs, acting as Agent, assisted by Maurizio Fiorilli, Avvocato dello Stato,

- the Swedish Government (C-401/95), by E. Brattgård, Departmental Adviser, Department of Foreign Trade, Ministry of Foreign Affairs, acting as Agent, and

- the Commission of the European Communities, by B.J. Drijber, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Garage Molenheide BVBA, represented by M. Vanden Broeck, of the Antwerp Bar, Bureau Rik Decan-Business Research & Development NV (BRD) and Sanders BVBA, represented by L. Vandenberghe, the Belgian Government, represented by B. van de Walle de Ghelcke and G. de Wit, of the Brussels Bar, the Greek Government, represented by F. Georgakopoulos, the Italian Government, represented by G. De Bellis, Avvocato dello Stato, and the Commission, represented by B.J. Drijber, at the hearing on 30 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 20 March 1997,

gives the following

Judgment

Grounds

1 By orders of 17 October 1994 (C-286/94), 25 October 1995 (C-340/95), 12 December 1995 (C-401/95) and 6 February 1996 (C-47/96), received at the Court Registry on 21 October 1994, 30 october 1995, 21 December 1995 and 16 February 1996 respectively, the Hof van Beroep te Antwerpen (Court of Appeal, Antwerp), 13th and 3rd Chambers (C-286/94 and C-340/95), the Rechtbank van Eerste Aanleg te Brussel (Court of First Instance, Brussels) (C-401/95) and the Rechtbank van Eerste Aanleg te Brugge (Court of First Instance, Bruges) (C-47/96) referred to the Court for preliminary rulings under Article 177 of the EC Treaty a number of questions on the interpretation of Article 18(4) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, hereinafter `the Sixth Directive').

2 Those questions were raised in four actions brought against the Belgian State by Garage Molenheide BVBA (hereinafter `Molenheide'), Peter Schepens, Bureau Rik Decan-Business Research & Development NV (BRD) (hereinafter `Decan') and Sanders BVBA (hereinafter `Sanders').

The Community legislation

3 Article 18(2) and (4) of the Sixth Directive, concerning procedures relating to the right of deduction, provide:

`2. The taxable person shall effect the deduction by subtracting from the total amount of value added tax due for a given tax period the total amount of the tax in respect of which, during the same period, the right to deduct has arisen and can be exercised under the provisions of paragraph 1.

...

4. Where for a given tax period the amount of authorized deductions exceeds the amount of tax due, the Member States may either make a refund or carry the excess forward to the following period according to conditions which they shall determine.

However, Member States may refuse to refund or carry forward if the amount of the excess is insignificant.'

The Belgian legislation

4 In Belgian law, Article 18(4) of the Sixth Directive was implemented in particular by Article 47 of the Value Added Tax Code, which provides that, where the authorized deductions exceed the tax due for a particular period, the excess is to be carried forward to the following tax period.

5 The first subparagraph of Article 76(1) of that Code, as amended by the Law of 28 December 1992, adds that any excess outstanding at the end of the calendar year is to be refunded in accordance with the conditions to be established by the King, on application by the taxable person. Pursuant to the second subparagraph, the King may permit the grant of refunds even before the end of the calendar year. Finally, according to the third subparagraph,

`[W]ith respect to the requirements laid down in the first and second subparagraphs, provision may be made by Royal Decree for a retention in favour of the VAT, Registration and Property Authority, having the effect of a preventive attachment within the meaning of Article 1445 of the Judicial Code.'

6 That provision was implemented by Article 7 of the Royal Decree of 29 December 1992, which inserted into Royal Decree No 4 of 29 December 1969 on refunds in respect of VAT (hereinafter `Royal Decree No 4') an Article 8/1(3) which is worded as follows:

`If the tax debt referred to in the first paragraph does not constitute, in favour of the administration, a debt which is, in whole or in part, certain, definite and due for payment, which is inter alia the case where it is disputed or has given rise to an order for recovery within the meaning of Article 85 of the Code, execution of which is opposed by an objection within the meaning of Article 89 of the Code, the tax credit shall be retained by the administration up to the amount of the tax claimed. That retention shall take effect as a preventive attachment until the dispute has been definitively resolved, either in the administrative procedure or by a final court judgment. The condition laid down by Article 1413 of the Judicial Code shall be deemed to have been satisfied as regards the implementation of that retention [fourth subparagraph].

If, with regard to the balance refundable resulting from the return referred to in Article 55(1)(3) of the Code, and in respect of which the taxable person has or has not opted for a refund, either there are serious grounds for presuming or there is evidence that the aforesaid return or returns concerning previous periods contain inaccurate information and if such grounds for presumption or evidence point to the existence of a tax debt the actual existence of which cannot, however, be established before the time for the payment order or for the operation equivalent to payment, no payment order shall be made in respect of the balance nor shall the balance be carried forward to the following tax period, and the tax credit shall be retained in order to permit the administration to verify the accuracy of the information [fifth subparagraph].

...

The serious grounds for presumption or the evidence referred to in the foregoing subparagraph, proving or indicating the tax debt, must be established by an official report drawn up in accordance with Article 59(1) of the Code. The report...