Opinion of the Advocate General — ECLI:EU:C:2016:204
Date: 2016-04-06
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 20 October 2016 Harmonisation of fiscal legislation — Common system of value added tax — Transitional arrangements for the taxation of trade between Member States — Exemption of transfers of goods within the European Union — Refusal to grant exemption owing to the taxable person’s failure to provide the VAT identification number issued by the Member State of destination — Taxable person’s non-participation in tax evasion — Not permissible (Council Directive 77/388, as amended by Directive 2005/92, Arts 22(8), 28a, 28c and 28h) Article 22(8) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 2005/92, in the version resulting from Article 28h of that Sixth Directive, and the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of that directive must be interpreted as precluding a tax authority of the Member State of origin from refusing to exempt an intra-Community transfer from value added tax (VAT) on the ground that the taxable person has not provided a VAT identification number issued by the Member State of destination, where there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met. Transactions should be taxed taking into account their objective characteristics. If a transfer of goods meets the conditions laid down in the second subparagraph of Article 28a(5)(b) of Directive 77/388, that transfer is exempt from VAT. Accordingly, the principle of fiscal neutrality requires that an exemption from VAT be allowed if the substantive conditions are satisfied, even if the taxable person has failed to comply with some of the formal requirements. An obligation to communicate the VAT identification number issued by the Member State of destination to the person acquiring the goods constitutes a formal requirement with regard to the right to exemption from VAT. While the provision of that number is proof that such a transfer has been effected for the purposes of that taxable person’s undertaking and, therefore, that that taxable person is acting as such in that Member State, proof of that capacity cannot, in every case, depend exclusively on the provision of that VAT identification number. Article 4(1) of the Sixth Directive, which defines ‘taxable person’, does not make that capacity subject to the possession by that person of a VAT identification number. The provision of that number is not, therefore, a substantive condition for the exemption from VAT of an intra-Community transfer. There are two situations in which the failure to meet a formal requirement may result in the loss of entitlement to an exemption from VAT. In the first place, the principle of fiscal neutrality cannot be invoked for the purposes of an exemption from VAT by a taxable person who has intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT. In the second place, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied. It follows, however, from the very condition to which that refusal to allow an exemption from VAT is subject, that, where the authority has the information necessary to establish that the substantive requirements have been satisfied, it cannot, in relation to the taxable person’s right to an exemption, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes. The Court has held that the first subparagraph of Article 28c(A)(a) of the Sixth Directive does not preclude the tax authority of a Member State from making the exemption from VAT of an intra-Community supply subject to the provision by the supplier of the VAT identification number of the person acquiring the goods, with the proviso that the grant of that exemption should not be refused on the sole ground that that requirement was not fulfilled where the supplier, acting in good faith and having taken all the measures which can reasonably be required of him, is unable to provide that identification number but provides other information which is such as to demonstrate sufficiently that the person acquiring the goods is a taxable person acting as such in the transaction at issue. However, that finding covers situations in which the issue is that of establishing whether or not the taxable person has participated in tax evasion. The supplier’s participation in such tax evasion may be ruled out having regard to the fact that that supplier, acting in good faith and having taken all the measures which could reasonably be required of him, was unable to provide the VAT identification number of the person acquiring the goods. It follows that, in circumstances in which the taxable person’s participation in tax evasion has in any event been ruled out, he cannot be refused an exemption from VAT on the ground that he did not take all the measures which could reasonably be required of him in order to satisfy a formal obligation, namely provision of the VAT identification number issued by the Member State of destination of the intra-Community transfer. (see paras 37-41, 43, 44, 46, 47, 51, 54, 55, 59, operative part)