Notice for the OJ

 

Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 28 July 2003, in the case of Optigen Ltd against Commissioners of Customs and Excise

    (Case C-354/03)

Reference has been made to the Court of Justice of the European Communities by an order of the High Court of Justice (England & Wales), Chancery Division, dated 28 July 2003, which was received at the Court Registry on 18 August 2003, for a preliminary ruling in the case of Optigen Ltd against Commissioners of Customs and Excise on the following questions:

A.    Under the common system of VAT, and in the light of Council Directives 67/227/EEC¹ and 77/388/EEC², is the entitlement of a trader to credit for a payment in respect of VAT under a transaction to be judged by reference to:

(1)only the particular transaction to which the trader was a party including the trader's purposes in entering into it, or

(2)the totality of transactions, including subsequent transactions, making up a circular chain of supply of which the particular transaction forms part including the purposes of other participants in the chain of which the trader has no knowledge and/or means of knowledge, and/or

(3)the fraudulent acts and intention, whether arising prior or subsequent to the particular transaction, of other participants in the circular chain of whose involvement the trader is unaware and of whose acts and intentions the trader has no knowledge and/or means of knowledge, or

(4)some other, and if so what, criteria?

B.    Does the exclusion from the VAT regime of transactions entered into by an innocent party, but which form links in a carousel fraud by others, infringe the general principles of proportionality, equal treatment or legal certainty?

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¹ - First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes OJ P 071, 14.04.1967, p. 1301-1303

² - Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of laws of the Member States relating to turnover taxes - Common system of value added tax: uniform bassis of assessment OJ L 145, 13.06.1977, p. 1 - 40