Opinion of the Advocate General — ECLI:EU:C:2014:2163
Date: 2014-09-04
Language of the case: Dutch
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 26 February 2015 1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Supplies of dental prostheses not being subject to the tax because of an exemption provided for by national law in infringement of Directive 2006/112 — Impossibility of both benefiting from that exemption and exercising the right to deduct tax (Council Directive 2006/112, Art. 168) 2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption of supplies of dental prostheses — Scope — Intra-Community acquisitions and final importations — Supply exempt within the territory of the Member State of destination — Included — Conditions — Supply by dentists or dental technicians (Council Directive 2006/112, Arts 132, 1(e), 140(a) and (b), 143(1)(a) and 370) 3. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption of supplies of dental prostheses — Scope — Intra-Community acquisitions — Supply exempt within the territory of the Member State of destination — Included — Member State of origin having maintained the taxation of dental prostheses on a transitional basis — No effect (Council Directive 2006/112, Arts 140(a) and (b) and 370) 1. Article 168 of Directive 2006/112 on the common system of value added tax, as amended by Directive 2007/75, must be interpreted as meaning that, where the exemption from value added tax provided for by national law is incompatible with Directive 2006/112, Article 168 does not permit a taxable person both to benefit from that exemption and to exercise the right to deduct tax. In such a situation, the only choice open to a taxable person is either to avail himself of the national tax exemption, thus ruling out the right to deduct, or to subject his transactions to value added tax in accordance with EU law, thus rendering himself subsequently eligible to deduct input tax. (see paras 39, 40, operative part 1) 2. Article 140(a) and (b) and Article 143(a) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2007/75, must be interpreted as meaning that the exemption from value added tax for which they provide applies to the intra-Community acquisition and the final importation of dental prostheses supplied by dentists and dental technicians where the Member State of the supply or importation has not implemented the transitional rules provided for in Article 370 of Directive 2006/112, as amended by Directive 2007/75. In order to determine whether an intra-Community acquisition or an importation of goods is exempt from VAT, it is necessary to establish whether the supply of those same goods is in all circumstances exempt within the territory of the Member State of destination. Since Article 132(1)(e) of Directive 2006/112 requires Member States to exempt the supply of dental prostheses by dentists and dental technicians, the supply within the territory of a Member State of that product will necessarily be exempt, provided that the Member State has not implemented the transitional rules provided for in Article 370 of the Value Added Tax Directive. Consequently, the intra-Community acquisitions and importations of dental prostheses by dentists and dental technicians are necessarily exempt. (see paras 49-51, 53, 58, operative part 2) 3. Article 140(a) and (b) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2007/75, must be interpreted as meaning that the exemption from value added tax provided for in that provision also applies where the intra-Community acquisition of dental prostheses originates from a Member State which has implemented the derogating and transitional arrangements provided for in Article 370 of that directive. Since the harmonisation of the value added tax system is still only partial, Article 370 of the directive authorises the Member States to retain certain provisions of their national legislation which would, without that authorisation, be incompatible with that system. Thus, in order to determine whether an intra-Community acquisition of dental prostheses qualifies for an exemption, it is necessary to ascertain whether the supply of those goods is exempt in the Member State of destination. It follows that the reference factor is the arrangement applicable in the Member State of destination and not in the Member State of origin. (see paras 60-64, operative part 3)