Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

In these proceedings the Court is requested to determine, by way of preliminary ruling, whether under the EEC Treaty and the secondary law relating to value-added tax (VAT) the Member States may lay down accounting and payment periods for VAT on imports which are different from those prescribed for VAT under the internal system.

Dansk Denkavit ApS, the plaintiff in the main proceedings, imports animal feeding-stuffs into Denmark from the Netherlands. At its request, it was registered as an importer and therefore is subject to the obligations attaching to persons liable to pay VAT on imports. The Danish rules, like those of certain other States, lay down a time-limit for the payment of VAT on imports which is different from that for internal VAT. On 3 June 1981, Dansk Denkavit, considering that system to be discriminatory, requested the Ministeriet for Skatter og Afgifter [Ministry for Fiscal Affairs, hereinafter referred to as the Ministry] to allow it to calculate its VAT liability on the basis laid down for internal VAT; since its request was refused, it brought an action before the Østre Landsret [Danish High Court], claiming that the rules in question were incompatible with Community law. By order of 2 March 1983, the Twelfth Chamber of the Østre Landsret stayed the proceedings and referred to the Court for a preliminary ruling four questions on the interpretation of the Sixth Council Directive of 17 May 1977 (77/388/EEC, Official Journal L 145, p. 1) and of Article 95 of the EEC Treaty.

2. I shall now turn to the Danish rules. Most of them are contained in the Law on VAT, promulgated on 1 July 1982 under No 369, and the Customs Law, promulgated on 15 December 1982 under No 659. Article 20 (1) of the Law on VAT lays down the procedures for payment of the internal tax. The taxable person must, no later than one month and 20 days after the end of each tax period (which is normally one quarter), declare to the revenue authorities the amount of tax which it has charged on its taxable turnover (the so-called output tax) and the tax invoiced to it by its supplier (input tax). The difference between those two amounts constitutes the net tax position; the tax becomes chargeable one month after the end of the tax period and, if there is a net liability, payment must be made within the 20 days following.

3. I shall now consider the questions submitted to the Court by the Østre Landsret. The national court asks in the first place whether the Sixth Directive, and in particular Articles 10, 22 and 23 thereof, must interpreted in such a way that the directive precludes a Member State from laying down accounting periods and periods within which payment must be made in respect of value-added tax chargeable on the importation of goods from another Member State ... which are in conformity with the periods prescribed by Article 22 (4) of the directive but which mean that registered importers obtain a shorter average period of credit for making payment of that tax to the revenue authorities than the average period of credit which the same Member State generally permits registered undertakings, including importers, in respect of payment to the revenue authorities of the net amount of value-added tax on the general turnover (net tax liability).

4. The Østre Landsret asks the Court in the second place what significance must be attached in deciding Question 1 to the fact that the provisions of the Member State in question on the rendering of accounts and payment of value-added tax on imports may be regarded as entailing an average period of credit for importers which constitutes a reasonable counterpart to the average period of credit which purchasers at the same commercial and industrial stage can obtain from suppliers for the payment of the purchase price, inclusive of value-added tax, when they purchase products manufactured in the Member State in question.

5. In its third question, the national court asks whether the laying down of different accounting periods and periods within which payment must be made in respect of VAT under the internal system and VAT on imports is contrary to Article 95 of the Treaty. I would point out that, under the first two paragraphs of that article, no Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products ... [or] any internal taxation of such a nature as to afford indirect protection to other products.

6. That response will be criticized as being formalistic. Dansk Denkavit rejects it and emphasizes the financial benefits accruing to undertakings on the domestic market from the difference between the time-limits for payment of the tax. The latter, it states, retain for a longer period the funds required to discharge their tax liability and thereby derive an advantage in terms of interest which enables them to charge lower prices. How in those circumstances can it be denied that there is discrimination of the kind prohibited by Article 95 ?

7. The last question submitted by the national court concerns the repercussions for the Sixth Directive in the event of systems such as the Danish system being held to be incompatible with Article 95 of the Treaty. Since I do not believe that such systems are incompatible (cf. paragraphs 5 and 6 above), the question is, as far as I am concerned, devoid of purpose.

8. In view of the foregoing considerations, I suggest that the Court should reply as follows to the questions submitted by the Twelfth Chamber of the Østre Landsret by judgment of 2 March 1983 in the proceedings between Dansk Denkavit ApS and the Ministeriet for Skatter og Afgifter:

1 Translated from the Italian.