Communicated on 13 October 2020 Published on 2 November 2020

FOURTH SECTION

Application no. 16395/18 ITALMODA MARIANO PREVITI and Others against the Netherlands lodged on 4 April 2018

SUBJECT MATTER OF THE CASE

The application concerns the levying of value-added tax (VAT) on intra-Community cross-border sales of goods. The applicants exported goods to Italy but were denied the benefit of the right to VAT rebate laid down by the Sixth Directive on the ground that their clients had committed fraud and the applicants themselves either knew or should have known that fraud was to be committed.

In the course of the ensuing proceedings, the Court of Justice of the European Union gave the following preliminary ruling ( Staatssecretaris van Financiën v. Schoenimport ‘ Italmoda ’ Mariano Previti vof (C ‑ 131/13), 18 December 2014):

“1. ...

2. Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it is for the national authorities and courts to refuse a taxable person, in the context of an intra-Community supply, the benefit of the rights to deduction of, exemption from or refund of value added tax, even in the absence of provisions of national law providing for such refusal, if it is established, in the light of objective factors, that that taxable person knew, or should have known, that, by the transaction relied on as a basis for the right concerned, it was participating in evasion of value added tax committed in the context of a chain of supplies.

3. Sixth Directive 77/388, as amended by Directive 95/7, must be interpreted as meaning that a taxable person who knew, or should have known, that, by the transaction relied on as a basis for rights to deduction of, exemption from or refund of value added tax, that person was participating in evasion of value added tax committed in the context of a chain of supplies, may be refused the benefit of those rights, notwithstanding the fact that the evasion was carried out in a Member State other than that in which the benefit of those rights has been sought and that taxable person has, in the latter Member State, complied with the formal requirements laid down by national legislation for the purpose of benefiting from those rights.”

This ruling was followed by the domestic courts.

The applicants complain that they were subjected to a criminal sanction for which there was no basis in national law.

QUESTIONS TO THE PARTIES

1. Did the acts or omissions imputed to the applicants constitute a criminal offence under national law at the time when they were found to have been committed, as envisaged by Article 7 of the Convention?

2. In the affirmative, was the penalty imposed on the applicants heavier than that applicable under national law at the time when these acts were committed, as proscribed by Article 7 of the Convention?

No.

Applicant ’ s Name

Birth year

Nationality

1ITALMODA MARIANO PREVITI

1994Dutch

2Giovanna Maria Adriana PREVITI

1971Italian,Dutch

3Maurizio Aart PREVITI

1973Italian,Dutch

4Stefano Adrian PREVITI

1969Dutch

5Maria Everdina PREVITI-VAN GINKEL

1947Italian,Dutch

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