Opinion of Mrs Advocate General Rozes

Mr President,

Members of the Court,

The Gerechtshof [Regional Court of Appeal], 's-Hertogenbosch, has referred to the Court for a preliminary ruling under Article 177 of the Treaty of Rome a number of questions concerning turnover tax on the importation of goods delivered by private persons within the country or across a frontier.

The facts are as follows:

By contract made in Cannes in 1978 or at the beginning of 1979 Giovanni Nanni, a Swedish national, residing in Monaco, sold for the sum of FF 365000 cash to Han Van Zanten, a Netherlands national, residing in Vuren (Netherlands), a Nautor pleasure boat of more than 8 tonnes with navigation certificate and registration certificate as a French vessel. The boat was to be delivered ex quay Cannes and was at the buyer's risk as from 15 February 1979.

I will assume for the purposes of the case that Mr Nanni in fact paid value-added tax in France on the purchase of the new boat (at the rate of 33 1/3%) and that he did not receive any refund of tax when it was exported to the Netherlands. I also assume that Mr Van Zanten received the navigation and registration certificates for the boat although the contract of sale does not specify their numbers.

On 16 February 1979 Mr Van Zanten, through the agency of the company Gaston Schul, a customs forwarding agent, presented the boat intended for his private use to the customs office at Wernhout (the Netherlands).

The Netherlands revenue authority thereupon claimed and levied an amount of HFL 31014 by way of Netherlands turnover tax at the normal rate applicable within the country on the delivery of goods of that kind (18% on HFL 172 30C, the import value of the goods).

Mr Van Zanten objected to this taxation, contending that the boat had already been subject to value-added tax within the common market, namely in France, and that he had received no refund on export.

When that objection was rejected on the ground that the taxation had been levied pursuant to the provisions of the Netherlands law of 1968 on turnover tax, the company Gaston Schul and Mr Van Zanten brought the matter before the Gerechtshof [Regional Court of Appeal], 's-Hertogenbosch alleging that the taxation in question was contran. to the provisions on the one hand of Articles 12 and, as the case might be, Article 13, and on the other, of Article 95 of the EEC Treat}.

In their view the levying of turnover tax on importation into the Netherlands was carried out pursuant to Article 1 of the Netherlands law of 1968 implementing Article 2 of the Second Council Directive of 11 April 1967 on the harmonization of the laws of the Member States relating to turnover taxes. That directive was subsequently replaced by the Sixth Council Directive of 17 May 1977 (Common system of value-added tax: uniform basis of assessment). However, they contend that the latter directive is contrary to the Treaty in two respects:

Even assuming that the taxation upon importation was justified in principle the product ought, in accordance with Article 96 of the Treaty, upon being exported from France, to have benefited from a repayment of the internal taxation equal to the taxation imposed directly or indirectly on it by way of French value-added tax. The directive, however, does not provide for any exemption in the event of importation by a private person into a Member State of goods bought from another private person in another Member State and is accordingly unlawful.

In those circumstances the Netherlands court is asking this Court to decide upon the validity of Article 2, point 2, of the directive with regard both to the customs provisions (Articles 12 and 13) and to the tax provisions (Article 95 et seq.) of the Treaty. I shall consider these two aspects in turn.

It is appropriate however first of all to define the limits of the examination for which the Netherlands court is asking: it is not a question of considering the validity of Article 2, point 2, of the Sixth Directive generally, but only with regard to the levying of turnover tax on the importation of secondhand goods passing from one private person to another, that is to say, what are called registered secondhand goods.

1 Translated from the French.