Request for a preliminary ruling from the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Belgium) lodged on 25 May 2023 – Dranken Van Eetvelde NV v Belgische Staat

(Case C-331/23, Dranken Van Eetvelde)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent

Parties to the main proceedings

Applicant: Dranken Van Eetvelde NV

Defendant: Belgische Staat

Questions referred

Does Article 51bis(4) of the WBTW ¹ infringe Article 205 of Directive 2006/112 ² in conjunction with the principle of proportionality in so far as that provision provides for unconditional overall liability and does not allow the court to assess liability on the basis of each person’s contribution to the tax fraud?

Does Article 51bis(4) of the WBTW infringe Article 205 of Directive 2006/112 on the common system of VAT, read in conjunction with the principle of VAT neutrality, if that provision is to be interpreted as meaning that a person is jointly and severally liable to pay VAT in the place of the legal debtor, without any account having to be taken of the deduction of VAT that can be claimed by the legal debtor?

Must Article 50 of the Charter of Fundamental Rights of the European Union be interpreted as not precluding national legislation which permits the cumulation of (administrative and criminal) penalties of a criminal nature, resulting from different proceedings, in respect of offences which are materially identical yet occurred over consecutive years (but which, in criminal law, would be regarded as a continuing offence with unity of purpose), and where the offences are subject to administrative prosecution in respect of one year and criminal prosecution in respect of another year? Are those offences not regarded as inseparable because they occurred over consecutive years?

Must Article 50 of the Charter of Fundamental Rights of the European Union be interpreted as not precluding national legislation under which proceedings may be brought against a person for the imposition of an administrative fine of a criminal nature in respect of an offence for which he or she has already been finally convicted under criminal law, the two sets of proceedings being conducted entirely independently of one another and the only guarantee that the gravity of the entirety of the penalties imposed is commensurate with the gravity of the offence in question consisting in the fact that the tax court may carry out a substantive review of proportionality, even though the national legislation does not lay down any rules in that regard, nor does it lay down any rules allowing the administrative authority to take account of the criminal penalty already imposed?

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¹ Btw-wetboek (Belgian VAT Code).

¹ Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).