Opinion of Advocate General Bobek in the case Scialdone.
Bobek proposes to the Court to answer the questions posed by the Tribunale di Varese (District Court, Varese) as follows:
– The concept of fraud in Article 1(1)(b) of the PIF Convention on the protection of the European Communities' financial interests does not cover an offence, such as the one at issue in the main proceedings, concerning the failure to pay correctly declared VAT within the deadline set by law.
– Article 4(3) TEU, read in conjunction with Article 325(1) TFEU and the VAT Directive, does not preclude national provisions establishing, for the purposes of determining the punishable character of the conduct consisting in failure to pay a tax by the legal deadline, a financial threshold which is higher for value added tax (VAT) than the one provided for withholding tax.
– The duty to provide effective, dissuasive and proportionate penalties to ensure correct collection of VAT imposed by Article 325(1) TFEU and Article 4(3) TEU, read in conjunction with VAT Directive, does not preclude national legislation, such as that at issue in the present case, which, while providing for a system of administrative sanctions, exempts natural persons responsible for tax matters:
– from criminal and administrative liability for failure to pay correctly declared VAT within the deadline set by law in relation to sums equivalent to three or five times the minimum threshold of EUR 50 000 laid down by the PIF Convention;
– from criminal liability if the entity with regard to which they operate has made late payment of the VAT due, as well as interest and the amounts imposed by administrative sanctions, before the trial at first instance is declared open.