Opinion of the Advocate General — ECLI:EU:C:2018:624
Date: 2018-07-25
Language of the case: Czech
Subject matter: Taxation;Value added tax;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary, I propose that the Court answer the questions referred by the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) as follows: (1) Article 138(2)(b) of Directive 2006/112/EC is applicable only to the supply of products subject to excise duty for taxable persons, whose other acquisitions are not subject to VAT pursuant to Article 3(1) of that directive. Other than the exemption laid down therein, Article 138(2)(b) of the directive does not contain any provision for the purpose of ascribing transport under a duty suspension arrangement to a certain supply in the case of a cross-border supply chain. (2) In ascribing the single cross-border transport to a certain supply in a supply chain, the crucial factor is who bears the risk for the accidental loss during the transport of the goods to another link in the supply chain. 1 Original language: German. 2 The Court has already dealt with the question of ascribing transport to a supply with regard to an ‘intra-Community chain transaction’ in a number of cases; see, for example, judgments of 6 April 2006, EMAG Handel Eder (C‑245/04, EU:C:2006:232); of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592); of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599); and of 21 February 2018, Kreuzmayr (C‑628/16, EU:C:2018:84). 3 This is a special procedure for the movement of excise goods under which excise duty becomes chargeable only when the movement has ended, because the goods are released for free circulation only then. 4 OJ 2006 L 347, p. 1. 5 OJ 2009 L 9, p. 12. 6 Repealed by Directive 2008/118/EC. 7 The efforts made by the Court to provide national courts with useful guidance regarding the interpretation and application of EU law are consistent with settled case-law; see, among many others, judgments of 31 January 2008, Centro Europa 7 (C‑380/05, EU:C:2008:59, paragraphs 49 to 51); of 11 March 2010, Attanasio Group (C‑384/08, EU:C:2010:133, paragraphs 17 and 19); of 13 July 2017, Kleinsteuber, C‑354/16, EU:C:2017:539, paragraph 61); and of 26 July 2017, Europa Way and Persidera (C‑560/15, EU:C:2017:593, paragraphs 35 and 36). 8 See my Opinion in EMAG Handel Eder (C‑245/04, EU:C:2005:675, points 23 to 25). 9 Judgments of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraphs 23 and 24); of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 28); and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 31). 10 At least the German, English, French, Spanish, Polish, Bulgarian, Portuguese and Italian versions. 11 Judgments in Cilfit and Others (283/81, EU:C:1982:335, paragraph 18); EMU Tabac and Others (C‑296/95, EU:C:1998:152, paragraph 36); Givane and Others (C‑257/00, EU:C:2003:8, paragraph 36); and Kyocera (C‑152/01, EU:C:2003:623, paragraph 32). 12 Judgments of 26 April 2012, DR and TV2 Danmark (C‑510/10, EU:C:2012:244, paragraph 45); of 7 June 2018, EP Agrarhandel (C‑554/16, EU:C:2018:406, paragraph 36); and of 5 June 2018, Kolev and Kostadinov (C‑612/15, EU:C:2018:392, paragraph 87). 13 See above, point 28 of this Opinion. 14 See immediately below, point 50 of this Opinion. 15 Regard is thus had to the excise duty becoming chargeable in the State of consignment in Article 2(1)(b)(iii) of the directive, which mirrors Article 138(2)(b). 16 This situation was regulated by Article 7(4) of Directive 92/12, to which Article 138(2)(b) of the VAT Directive refers. 17 For trade between taxable persons not covered by Article 3(1) of the directive (in particular, not constituting small undertakings), whose intra-Community acquisitions are in any case subject to VAT pursuant to Article 138(1) of the directive, the directive assumes that cross-border transport typically takes place under a duty suspension arrangement and no special scheme is therefore necessary. 18 Judgments of 6 April 2006, EMAG Handel Eder (C‑245/04, EU:C:2006:232, paragraph 45), and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 34); and my Opinion in EMAG Handel Eder (C‑245/04, EU:C:2005:675, point 35). 19 The intra-Community supply and the intra-Community acquisition have identical constituent requirements as they are one and the same financial transaction; see point 32 and footnote 9 of this Opinion. 20 See judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 37), and my Opinion in EMAG Handel Eder (C‑245/04, EU:C:2005:675, point 41). 21 Judgment of 6 April 2006, EMAG Handel Eder (C‑245/04, EU:C:2005:675, paragraph 50). 22 Judgments of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 27); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 32); of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 35); and of 21 February 2018, Kreuzmayr (C‑628/16, EU:C:2018:84, paragraph 32); and my Opinion in EMAG Handel Eder (C‑245/04, EU:C:2005:675, point 56). 23 It is not disputed that, for example, although a forwarder currently has actual physical control of goods, it does not act as a participating supplier, but as a carrier for a supplier. See, to that effect, judgment of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 40.) 24 Judgment of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraphs 36 and 37). 25 Judgment of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 40). 26 The cases decided thus far all concerned chains of just two successive supplies; see judgments of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 33); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 34); and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 36). 27 Only this is required by the definition of supply and intra-Community acquisition (see Article 14(1) and Article 20(1) of the directive), but not legal ownership. See judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe (C‑320/88, EU:C:1990:61, paragraphs 7 and 8), and of 6 February 2003, Auto Lease Holland (C‑185/01, EU:C:2003:73, paragraph 32). 28 See my Opinion in EMAG Handel Eder (C‑245/04, EU:C:2005:675, point 58). 29 The carrier or forwarder does not hold the power to dispose of the goods as owner; see judgments of 3 June 2010, De Fruytier (C‑237/09, EU:C:2010:316, paragraph 25), and of 20 June 2018, Enteco Baltic (C‑108/17, EU:C:2018:473, paragraph 88). 30 See, to that effect, judgments of 3 June 2010, De Fruytier (C‑237/09, EU:C:2010:316, paragraph 24), and of 20 June 2018, Enteco Baltic (C‑108/17, EU:C:2018:473, paragraph 86). 31 See also judgment of 20 June 2018, Enteco Baltic (C‑108/17, EU:C:2018:473, paragraph 89). 32 See also, to that effect, judgments of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 45), and of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 37). 33 Judgment of 14 July 2005, British American Tobacco and Newman Shipping (C‑435/03, EU:C:2005:464, paragraph 41). 34 See point 62 of this Opinion. 35 In principle, the risk of accidental loss is transferred to the consignee only when he is able to dispose of the goods. The situation may be different if the consignee wishes the goods to be dispatched to a certain place. 36 See judgments of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 34 et seq.); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 35); and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 44). 37 With regard to the first vendor, the expectation in the information from his contractual partner must be protected, for reasons of legal certainty, with the result that he may not be charged tax. This does not mean, however, that his supply actually becomes the exempt intra-Community supply; see judgment of 21 February 2018, Kreuzmayr (C‑628/16, EU:C:2018:84, paragraph 37). The Kreuzmayr case concerned only the protection of legitimate expectations of the parties in the second supply. This rightly had to be rejected as it was clear to the parties in the second supply that one of them had taken over the risk for the transport of the goods; see judgment of 21 February 2018, Kreuzmayr (C‑628/16, EU:C:2018:84, paragraph 36). 38 Under these circumstances, even though a border was actually crossed during the transport by Arex, there would be no intra-Community acquisition. As I have already stated elsewhere, the determination of the exempted supply does not depend on which place was the actual point of departure for the movement of goods; see my Opinion in EMAG Handel Eder (C-245/04, EU:C:2005:675, point 40). 39 See judgment of 16 December 2010, Euro Tyre Holding (C-430/09, EU:C:2010:786, paragraph 45).