# C_2017309EN.01001301.xml

| 18.9.2017 | EN | Official Journal of the European Union | C 309/13 |
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18.9.2017

EN

Official Journal of the European Union

C 309/13

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Judgment of the Court (Ninth Chamber) of 26 July 2017 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Toridas’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

(Case C-386/16) (1)

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((Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 138(1) - Classification of a transaction as an intra-Community supply - Exemption of intra-Community supplies of goods - Intention of the person acquiring the goods to resell them to a taxable person in another Member State before they are taken out of the first Member State - Possible effect of some of the goods being processed before they are dispatched))

(2017/C 309/17)

Language of the case: Lithuanian

Referring court

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘Toridas’ UAB

Applicant:

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

Defendant:

Intervening party: Kauno apskrities valstybinė mokesčių inspekcija

Intervening party:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, a supply of goods by a taxable person established in a first Member State is not exempt from value added tax under that provision where, prior to entering into that supply transaction, the person acquiring the goods, who is identified for value added tax purposes in a second Member State, informs the supplier that the goods will be resold immediately to a taxable person established in a third Member State, before he takes them out of the first Member State and transports them to that third taxable person, provided that that second supply has in fact been carried out and the goods have then been transported from the first Member State to the Member State of the third taxable person. The fact that the first person acquiring the goods is identified for value added tax purposes in a Member State other than that of the place of the first supply or that of the place of the final acquisition is not a criterion for classification of an intra-Community transaction or, in itself, evidence sufficient to show that a transaction is an intra-Community one. |
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Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, a supply of goods by a taxable person established in a first Member State is not exempt from value added tax under that provision where, prior to entering into that supply transaction, the person acquiring the goods, who is identified for value added tax purposes in a second Member State, informs the supplier that the goods will be resold immediately to a taxable person established in a third Member State, before he takes them out of the first Member State and transports them to that third taxable person, provided that that second supply has in fact been carried out and the goods have then been transported from the first Member State to the Member State of the third taxable person. The fact that the first person acquiring the goods is identified for value added tax purposes in a Member State other than that of the place of the first supply or that of the place of the final acquisition is not a criterion for classification of an intra-Community transaction or, in itself, evidence sufficient to show that a transaction is an intra-Community one.

| 2. | For the purposes of interpreting Article 138(1) of Directive 2006/112, processing of the goods, in the course of a chain of two successive supplies, such as that at issue in the main proceedings, carried out on the instructions of the middleman acquiring the goods and before the goods are transported to the Member State of the person finally acquiring them, has no effect on the conditions for any exemption of the first supply where that processing takes place after the first supply. |
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For the purposes of interpreting Article 138(1) of Directive 2006/112, processing of the goods, in the course of a chain of two successive supplies, such as that at issue in the main proceedings, carried out on the instructions of the middleman acquiring the goods and before the goods are transported to the Member State of the person finally acquiring them, has no effect on the conditions for any exemption of the first supply where that processing takes place after the first supply.

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(1)  OJ C 343, 19.9.2016.

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