# C_2020230EN.01000301.xml

| 13.7.2020 | EN | Official Journal of the European Union | C 230/3 |
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13.7.2020

EN

Official Journal of the European Union

C 230/3

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Judgment of the Court (Fourth Chamber) of 23 April 2020 (request for a preliminary ruling from the Krajský soud v Praze — Czech Republic) — Herst s.r.o. v Odvolací finanční ředitelství

(Case C-401/18) (1)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 2(1)(b) - Intra-Community acquisition of goods - Article 20 - Acquisition of the right to dispose of goods as owner - Chain of transactions for the purchase and resale of goods with a single intra-Community transport - Right to take decisions capable of affecting the legal situation of property - Transaction to which the transport should be ascribed - Transport under an excise duty suspension arrangement - Temporal effect of judgments by way of interpretation)

(2020/C 230/03)

Language of the case: Czech

Referring court

Krajský soud v Praze

Parties to the main proceedings

Applicant: Herst s.r.o.

Defendant: Odvolací finanční ředitelství

Operative part of the judgment

| 1. | Article 20 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a taxable person which carries out a single intra-Community transport of goods under an excise duty suspension arrangement, with the intention of purchasing those goods for the purposes of its economic activity once they have been released for free circulation in the Member State of destination, acquires the right to dispose of the goods as owner, within the meaning of that provision, provided that it has the right to take decisions which are capable of affecting the legal situation of the goods, including, inter alia, the decision to sell them;
  The fact that that taxable person had, at the outset, the intention to purchase those goods for the purposes of its economic activity once they have been released for free circulation in the Member State of destination is a circumstance which must be taken into account by the national court in its overall assessment of all of the particular circumstances of the case before it in order to determine to which of the successive acquisitions the intra-Community transport is to be ascribed. |
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1.

Article 20 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a taxable person which carries out a single intra-Community transport of goods under an excise duty suspension arrangement, with the intention of purchasing those goods for the purposes of its economic activity once they have been released for free circulation in the Member State of destination, acquires the right to dispose of the goods as owner, within the meaning of that provision, provided that it has the right to take decisions which are capable of affecting the legal situation of the goods, including, inter alia, the decision to sell them;

The fact that that taxable person had, at the outset, the intention to purchase those goods for the purposes of its economic activity once they have been released for free circulation in the Member State of destination is a circumstance which must be taken into account by the national court in its overall assessment of all of the particular circumstances of the case before it in order to determine to which of the successive acquisitions the intra-Community transport is to be ascribed.

| 2. | EU law precludes a national court that is confronted with a provision of national tax law, which has transposed a provision of Directive 2006/112 and is open to several interpretations, from adopting the interpretation that is most favourable to the taxable person by relying on the constitutional principle of in dubio mitius under national law, even after the Court has held that such an interpretation is incompatible with EU law. |
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2.

EU law precludes a national court that is confronted with a provision of national tax law, which has transposed a provision of Directive 2006/112 and is open to several interpretations, from adopting the interpretation that is most favourable to the taxable person by relying on the constitutional principle of in dubio mitius under national law, even after the Court has held that such an interpretation is incompatible with EU law.

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(1)  OJ C 294, 20.8.2018.

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