Opinion of the Advocate General — ECLI:EU:C:2010:252
Date: 2010-05-06
Language of the case: Swedish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Sweden

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 2006/112, Arts 2(1)(b)(ii), 20, first para., and 138(1)) 2. 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 2006/112, Art. 2(2)(b)) 1. The first paragraph of Article 20 and Article 138(1) of Council Directive 2006/112 on the common system of value added tax are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on the observance of any time period whatsoever during which the transport of the goods from the Member State of supply to the Member State of destination must be begun or completed. However, in order that such a classification may be made and the place of acquisition determined, a temporal and material link must be established between the supply of the goods in question and the transport of those goods, and also continuity in the course of the transaction. In the specific case of the acquisition of a new means of transport within the meaning of Article 2(1)(b)(ii) of that directive, the determination of the intra-Community nature of the transaction must be made through an overall assessment of all the objective circumstances and the purchaser’s intentions, provided that it is supported by objective evidence making it possible to identify the Member State in which final use of the goods concerned is envisaged. In that regard, the factors that may possibly be of some importance include, besides the length of time spent on transporting the goods, in particular, the place of registration and usual use of the goods, the place of residence of the purchaser and the presence or absence of links between the purchaser and the Member State of supply or another Member State. In the specific case of the acquisition of a sailing boat, relevance may also be attached to the flag Member State and the place where the sailing boat will usually be moored or anchored and the place where it will be stored in the winter. However, it cannot be required, in the context of an intra-Community acquisition, that the transport of a means of transport be carried out immediately after its supply, that it be uninterrupted and that the goods in question not be used in any manner whatsoever before or during that transport. The essential issue is, in fact, to determine the Member State in which the final, permanent use of the means of transport will take place. In that regard, the use of the means of transport, even for leisure purposes, represents only a negligible period of time in relation to the usual lifespan of a means of transport. (see paras 33, 45-46, 48, 50-51, operative part 1) 2. In order to determine whether a means of transport that is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112 on the common system of value added tax, it is necessary to take into consideration the moment when the goods in question are supplied by the vendor to the purchaser, that is to say, the moment when the right to dispose of those goods as owner is transferred from the vendor to the purchaser. (see paras 55, 57, operative part 2)