Opinion of the Advocate General — ECLI:EU:C:2016:944
Date: 2016-12-13
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 1 June 2017 1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Importation of goods — Place of importation of goods — Chargeable event and chargeability of the tax — First subparagraph of Article 61 and the first subparagraph of Article 71(1) of Directive 2006/112 — Reference to one of the arrangements or situations referred to in Article 156 of that directive — Scope — Goods transported through a free port located in a Member State — Legislation of that Member State excluding free ports from its national fiscal territory — Included (Council Directive 2006/112, as amended by Directive 2007/75, Arts 61, para. 1, 71(1), subpara. (1) and 156) 2. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Importation of goods — Goods located inside a free zone — Removal from customs supervision inside a free zone giving rise to a customs debt — No effect on the chargeable event and chargeability of the tax — Condition — No entry to the economic network of the European Union — Verification a matter for the national court (Council Directive 2006/112, as amended by Directive 2007/75, Art. 71(1)) 3. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Importation of goods — Customs debt arising under Article 203 of Regulation No 2913/92 — Exclusion from the incurrence of a VAT debt — No cumulative application of Article 204 of that Regulation (Council Directive 2006/112, as amended by Directive 2007/75, Art. 71(1); Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Arts 203 and 204) 1. The first paragraph of Article 61 and the first subparagraph of Article 71(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2007/75/EC of 20 December 2007, must be interpreted as meaning that the reference to ‘one of the arrangements or situations referred to’ in Article 156 of that directive includes free zones. (see para. 46, operative part 1) 2. Article 71(1) of Directive 2006/112, as amended by Directive 2007/75, must be interpreted as meaning that the removal of goods from customs supervision in a free zone does not give rise to the chargeable event or make import value added tax chargeable if those goods did not enter the economic network of the European Union, this being a matter for the referring court to determine. In that context, it must nevertheless be noted that the Court has held that, in addition to the customs debt, there may also be a requirement to pay VAT in the case where, on the basis of the particular unlawful conduct which gave rise to the customs debt, it can be presumed that the goods entered the economic network of the European Union and, consequently, that they may have undergone consumption, that is, the act on which VAT is levied (judgment of 2 June 2016, Eurogate Distribution and DHL Hub Leipzig, C‑226/14 and C‑228/14, EU:C:2016:405, paragraph 65). In this regard, as the Advocate General observed in points 67 to 69 of his Opinion, in the event that goods liable to import duties are removed from customs supervision in a free zone and are no longer located in that zone, it should, in principle, be presumed that they have entered the economic network of the European Union. (see paras 54, 55, 57, operative part 2) 3. The second subparagraph of Article 71(1) of Directive 2006/112, as amended by Directive 2007/75, must be interpreted as meaning that, when a customs debt arises by virtue of Article 203 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, and no value added tax debt is consequently incurred, on account of the circumstances of the dispute in the main proceedings, Article 204 of the latter regulation may not be applied for the sole purpose of providing a basis for charging value added tax. (see para. 63, operative part 3)