Opinion of the Advocate General — ECLI:EU:C:2005:675
Date: 2005-11-10
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Transitional arrangements for the taxation of trade between Member States (Council Directive 77/388, Art. 28c(A)(a), first subpara.) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of goods (Council Directive 77/388, Art. 8(1)(a) and (b)) 1. Where two successive supplies of the same goods, effected for consideration between taxable persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, that dispatch or transport can be ascribed to only one of the two supplies, which alone will be exempted from tax under the first paragraph of Article 28c(A)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7. That interpretation holds good regardless of which taxable person – the first vendor, the intermediary acquiring the goods or the second person acquiring the goods – has the right to dispose of the goods during that dispatch or transport. Firstly, even if two successive supplies give rise only to a single movement of goods, they must be regarded as having followed each other in time. The intermediary acquiring the goods can transfer the right to dispose of the goods as owner to the second person acquiring the goods only if it has previously been transferred to him by the first vendor and, therefore, the second supply can take place only after the first supply has been effected. As the place of acquisition of the goods by the intermediary is deemed to be in the Member State of arrival of the dispatch or transport of those goods, it would be illogical for that taxable person to be deemed to have made the subsequent supply of those same goods from the Member State of the departure of that dispatch or transport. Secondly, as a result of such an interpretation, the purpose of the transitional arrangements under Title XVIa of that directive, namely to transfer the tax revenue to the Member State in which final consumption of the goods supplied takes place, can be easily attained. (see paras 38-40, 45, operative part 1) 2. Where two successive supplies of the same goods, effected for consideration between taxable persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, only the place of the supply to which that dispatch or transport is ascribed is determined in accordance with Article 8(1)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7; that place is deemed to be in the Member State of the departure of that dispatch or transport. The place of the other supply is determined in accordance with Article 8(1)(b) of that directive; that place is deemed to be either in the Member State of departure or in the Member State of arrival of that dispatch or transport, according to whether that supply is the first or the second of the two successive supplies. (see para. 51, operative part 2)