62024TC0638
OPINION OF ADVOCATE GENERAL
MARTÍN Y PÉREZ DE NANCLARES
delivered on 29 October 2025 (
1
)
Case T‑638/24
Finanzamt Österreich
intervener:
D GmbH
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))
(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 20 – Intra-Community acquisitions of goods – Articles 62, 68 and 69 – Chargeable event and chargeability of VAT – Articles 40 and 41 – Determination of the place of intra-Community acquisitions of goods – Use of the tax identification number of the country of origin of the goods by the person acquiring the goods – Article 138 – Exempt intra-Community supplies – Article 203 – VAT incorrectly invoiced and paid in the same Member State – Adjustment of the invoice – Legal effects)
I. Introduction
1.
The present request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) seeks a ruling on the taxation of an intra-Community acquisition of goods, within the meaning of Article 20 of Directive 2006/112/EC, (
2
) in a case where the Member State in which dispatch or transport of the goods began has taxed that acquisition, pursuant to Article 41 of the directive, on the ground that the customer has used the value added tax (VAT) identification number of that Member State and has not established that VAT has been applied to the transaction in the Member State in which the dispatch or transport ends.
2.
It is clear from the judgment of 7 July 2022, Dyrektor Izby Skarbowej w. (Incorrect classification of chain transactions) (C‑696/20, ‘the judgment in Dyrektor’, EU:C:2022:528), that, in such a case, an intra-Community acquisition has taken place. That acquisition is taxable in the Member State in which dispatch or transport began, under Article 41 of Directive 2006/112, unless it results from an intra-Community supply which has not been treated as exempt in that Member State.
3.
The interpretation of that condition is central to the questions referred by the referring court. The transactions at issue, which took place during the years 2011 to 2015, were classified by the Austrian tax authority as exempt intra-Community supplies and subject to VAT intra-Community acquisitions. (
3
) Nevertheless, the suppliers charged VAT on those supplies, so were liable for the VAT under Article 203 of Directive 2006/112. The referring court seeks to ascertain whether that fact is sufficient to consider that those supplies were treated as non-exempt, which, according to the judgment in Dyrektor, would preclude their taxation on the basis of Article 41 of that directive.
II. Legal context
A.
European Union law
4.
Under Article 2(1)(b)(i) of Directive 2006/112, ‘the intra-Community acquisition of goods for consideration within the territory of a Member State by … a taxable person acting as such’ are subject to VAT.
5.
The first paragraph of Article 20 of that directive defines the concept of ‘intra-Community acquisition of goods’ as ‘the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods, by or on behalf of the vendor or the person acquiring the goods, in a Member State other than that in which dispatch or transport of the goods began’.
6.
Under Article 40 of that directive, ‘the place of an intra-Community acquisition of goods shall be deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.’
7.
Article 41 of that directive is worded as follows:
‘Without prejudice to Article 40, the place of an intra-Community acquisition of goods as referred to in Article 2(1)(b)(i) shall be deemed to be within the territory of the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition, unless the person acquiring the goods establishes that VAT has been applied to that acquisition in accordance with Article 40.
If VAT is applied to the acquisition in accordance with the first paragraph and subsequently applied, pursuant to Article 40, to the acquisition in the Member State in which dispatch or transport of the goods ends, the taxable amount shall be reduced accordingly in the Member State which issued the VAT identification number under which the person acquiring the goods made the acquisition.’
8.
Article 62 of Directive 2006/112 provides:
‘For the purposes of this Directive:
(1)
“chargeable event” shall mean the occurrence by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled;
(2)
VAT shall become “chargeable” when the tax authority becomes entitled under the law, at a given moment, to claim the tax from the person liable to pay, even though the time of payment may be deferred.’
9.
Article 68 of that directive is worded as follows:
‘The chargeable event shall occur when the intra-Community acquisition of goods is made.
The intra-Community acquisition of goods shall be regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State.’
10.
According to Article 69 of the directive, ‘in the case of the intra-Community acquisition of goods, VAT shall become chargeable on issue of the invoice, or on expiry of the time limit referred to in the first paragraph of Article 222 if no invoice has been issued by that time.’
11.
As set out in Article 138(1) of the directive, ‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within [the European Union], by … the vendor … for another taxable person … acting as such in a Member State other than that in which dispatch or transport of the goods began.’
12.
Article 203 of Directive 2006/112 provides that ‘VAT shall be payable by any person who enters the VAT on an invoice.’
B.
Austrian law
13.
Paragraph 3(8) of the annex containing provisions relating to the internal market of the Umsatzsteuergesetz 1994 (Austrian 1994 Law on Turnover Tax), of 23 August 1994 (BGBI. 663/1994) (‘the UStG 1994’), provides that ‘the intra-Community acquisition is made within the territory of the Member State in which the goods are located when their dispatch or transport ends. If the acquirer uses, in its dealings with the supplier, a VAT identification number issued to it by another Member State, the acquisition shall be deemed to have been made in the territory of that Member State, unless and until the acquirer proves that the acquisition has been taxed by the Member State referred to in the first sentence.’
14.
Paragraph 11(12) of the UStG 1994 as applicable prior to the Abgabenänderungsgesetz 2023 (Tax Amendment Law of 2023, BGBl. I, 110/2023), provided:
‘Where the trader has, in an invoice for a supply of goods or services, separately stated an amount of tax for which he or she is not liable under this federal law as regards the transaction, he or she shall be liable for the amount stated in the invoice if he or she does not correct that invoice accordingly in respect of the recipient of the supply of goods or services. …’
III. Facts of the dispute and the question referred for a preliminary ruling
15.
The dispute in the main proceedings is between D GmbH, a company established in Austria, and the Finanzamt Österreich (the Austrian tax authority) concerning VAT on transactions carried out between 2011 and 2015.
16.
It is apparent from the request for a preliminary ruling that D, using its Austrian VAT identification number, purchased goods from suppliers in Austria which were then dispatched to another Member State. The invoices issued mentioned the VAT that would have been due if the transactions had taken place exclusively within Austrian territory.
17.
During a tax audit, the Austrian tax authority found that D was making intra-Community acquisitions and that it had not demonstrated that VAT had been applied to those transactions in the Member State in which the dispatch or transport ended. Therefore, they were taxable in Austria, in accordance with Paragraph 3(8) of the annex containing provisions on the internal market of the UStG 1994, which transposes Article 41 of Directive 2006/112. Furthermore, the Austrian tax authority considered that the corresponding intra-Community supplies were exempt from VAT and that the suppliers had therefore erred in charging VAT. However, under Paragraph 11(12) of the UStG 1994, which transposes Article 203 of the directive, they would still be liable for the VAT.
18.
The referring court considers that Article 41 of Directive 2006/112 applies, unless it is found, by reason of the application of Article 203 of that directive, that the intra-Community supplies at issue were not treated as exempt. According to the referring court, there are grounds to believe that those supplies remained exempt. In particular, the obligation to pay VAT arises not because of a refusal of the exemption, but because the VAT was invoiced in error. Furthermore, that obligation was not definitive, on the ground that Paragraph 11(12) of the UStG 1994 allows suppliers to adjust incorrect invoices, at any time, with ex nunc effect.
19.
Despite those considerations, the referring court does not rule out the possibility that, in the circumstances of the present case, the application of Article 41 of Directive 2006/112 may be contrary to the principles of fiscal neutrality and proportionality.
20.
If so, the referring court questions the consequences of adjusting invoices on which VAT is entered incorrectly. To the extent that such an adjustment would cancel the liability under Article 203 of Directive 2006/112, Article 41 of that directive might become applicable again. Where necessary, subject to the limitation periods provided for in Austrian law, the Austrian tax authority could tax the intra-Community acquisitions at issue.
21.
With regard to the issue of the limitation period, it is also necessary to determine when those acquisitions must be deemed to have taken place. If they occurred in the past, rather than at the time of adjustment of the invoices, the limitation periods could preclude the application of Article 41 of Directive 2006/112.
22.
In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer, in the context of the preliminary ruling procedure under Article 267 TFEU, the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Do Articles 40, 41 and 203 of Directive [2006/112], as well as the principles of proportionality and [fiscal] neutrality preclude the application of a national provision (second sentence of Article 3(8) of the [annex containing provisions relating to the internal market of the UStG 1994], whereby an acquisition is deemed to have been effected in the territory of the Member State whose VAT identification number was used by the person acquiring the goods until the person acquiring the goods establishes that the acquisition was taxed in the Member State in which the goods are located at the end of the transport or dispatch in those cases where the intra-Community acquisition is accompanied by an intra-Community supply which was treated in Austria as an exempt supply but where, because Austrian VAT is entered on the invoice, there is a tax liability for that supply on the basis of the invoice issued?
(2)
If Question 1 is answered in the affirmative, does the removal, as a result of a subsequent adjustment of the invoice by the issuer, of the VAT improperly entered on the invoice relating to the exempt intra-Community supply give rise to an intra-Community acquisition within the meaning of Article 41 of Directive 2006/112 and, if so, at what point in time is that intra-Community acquisition made?’
IV. The procedure before the General Court
23.
The present request for a preliminary ruling was lodged at the Registry of the Court of Justice on 22 November 2024. Pursuant to Article 50b of the Statute of the Court of Justice of the European Union, the request was referred to the General Court, which decided to rule without a hearing.
24.
Written observations have been submitted by the Austrian Government and by the European Commission.
V. Legal assessment
25.
I propose to examine each of the two questions in turn.
26.
By its first question, the referring court asks, in essence, whether Article 203 of Directive 2006/112 must be interpreted as meaning that its application, by reason of the invoicing, in error, of VAT for exempt intra-Community supplies, in the Member State in which dispatch or transport began, is able to preclude the simultaneous taxation of the corresponding intra-Community acquisitions, in the same Member State, under Article 41 of that directive.
27.
In order to answer that question, I shall first analyse the applicability of Article 41 of Directive 2006/112, while ignoring the problem associated with Article 203 of that directive (A). I shall then examine the crux of the first question, namely the possibility of a simultaneous application of Articles 203 and 41 of Directive 2006/112 (B).
28.
The second question was referred only if Article 203 of Directive 2006/112 is interpreted as meaning that its application precludes that of Article 41 of the directive.
29.
By that question, of which I shall only address certain aspects (C), the referring court seeks to determine what the consequences would be of the adjustment of invoices on which VAT has been incorrectly entered for the intra-Community supplies at issue. In particular, the referring court enquires whether, following such an adjustment, Article 41 of Directive 2006/112 can be considered to apply again and whether it is at that point that the intra-Community acquisition is made, thus giving rise to the chargeable event.
A.
Applicability of Article 41 of Directive 2006/112
30.
In order to answer the first question referred, it may be helpful to recall, in general terms, the purpose of Article 41 of Directive 2006/112, which is one of the provisions governing the place of taxation of intra-Community acquisitions (1). This will be followed by an examination of the tenets of the case-law according to which Article 41 applies when the customer is, as in this case, identified for VAT purposes in the Member State in which dispatch or transport of the goods began (2). I believe this will provide more context for the first question and thus clarify the questions raised by the referring court.
1. Purpose of Article 41 of Directive 2006/112
31.
Articles 40 and 41 of Directive 2006/112 determine the place of an intra-Community acquisition and thus the Member State responsible for its taxation, in accordance with Article 2(1)(b)(i) of that directive. (
4
) Those provisions come under Title V of the directive, governing the place of taxable transactions, and specifically Chapter 2 of that title, on the place of an intra-Community acquisition. They seek to avoid conflicts of jurisdiction which may result in non-taxation or, on the contrary, double taxation of the relevant intra-Community transactions. (
5
)
32.
According to the basic rule laid down in Article 40 of Directive 2006/112, the place of an intra-Community acquisition of goods is deemed to be in the Member State where dispatch or transport of the goods to the person acquiring them ends. Article 41 of that directive applies where the person acquiring the goods does not establish that VAT has been applied to that acquisition in that Member State and uses, for the purposes of the acquisition, the VAT identification number of another Member State. Where applicable, the place of the intra-Community acquisition is to be deemed to be within the territory of that Member State. (
6
)
33.
Compared with Article 40 of Directive 2006/112, Article 41 thereof acts as a kind of ‘safety net’, (
7
) designed to avoid losses of tax revenue. This provision ensures that the intra-Community acquisition is, in any event, subject to VAT. The obligation to pay VAT on that basis does not mean that the VAT is deductible, which is due to the subsidiary nature of Article 41 and its objective of inducing the person acquiring the goods to establish that VAT has been applied to the intra-Community acquisition in the Member State in which the dispatch or transport ends. (
8
)
2. The applicability of Article 41 in the presence of an identified customer in the Member State in which dispatch or transport of the goods began
34.
At the time when the transactions at issue took place, namely between 2011 and 2015, their classification as intra-Community acquisitions, within the meaning of Article 20 of Directive 2006/112, was not self-evident. A judgment of the Court of Justice, delivered in 2018, even suggested that the use, by the customer, of the VAT identification number of the Member State in which the dispatch or transport began, ruled out such a classification. (
9
)
35.
In the judgment in Dyrektor, however, the Court of Justice reiterated that the determination of whether a transaction is or is not an intra-Community transaction does not depend on the use of a specific VAT identification number. (
10
) In addition, on that basis, it held that Article 41 of Directive 2006/112 applies when the Member State in which dispatch or transport of the goods began is the Member State in which the customer is identified for VAT purposes. (
11
)
36.
In my opinion, those findings are based on a systematic interpretation of the provisions of Directive 2006/112 governing intra-Community supplies and acquisitions. By that interpretation, the Court of Justice seems to have established a link between the concept of ‘intra-Community acquisitions’, defined in Article 20 of the directive, and the conditions governing the exemption of intra-Community supplies, provided for in Article 138 of the directive. (
12
)
37.
It is clear from established case-law that those two provisions must be interpreted in such a way as to confer on them identical meaning and scope. Indeed, the corollary of an intra-Community supply falling within Article 138 is an intra-Community acquisition. (
13
)
38.
Article 138(1) of Directive 2006/112 provides, in essence, that Member States must exempt the supply of goods dispatched or transported to another Member State by or on behalf of the vendor or the person acquiring the goods, for another taxable person acting as such. (
14
) That provision was amended by Directive 2018/1910. Since then, it has made the exemption from VAT on intra-Community supplies subject to the tax identification of the customer in a Member State other than that in which dispatch or transport of the goods began. (
15
)
39.
In the present case, as in the case which gave rise to the judgment in Dyrektor, the transactions at issue took place before that amendment of Article 138 of Directive 2006/112 by Directive 2018/1910, such that the condition relating to the Member State of tax identification is not applicable ratione temporis. Thus, in so far as relevant, the lessons arising from that judgment remain completely valid.
40.
I therefore fully share the assessment of the referring court that these are intra-Community acquisitions made by D, which, because of the use of the Austrian VAT identification number, are taxable in Austria under Article 41 of Directive 2006/112.
41.
Nevertheless, taking into account the principles established in the judgment in Dyrektor as regards not the applicability of that provision, but the prohibition of double taxation of intra-Community supplies and acquisitions, it is not certain whether, because of the liability incurred by D’s suppliers under Article 203 of Directive 2006/112, the Republic of Austria can actually tax the intra-Community acquisitions at issue.
B.
Simultaneous application of Articles 203 and 41 of Directive 2006/112
42.
In order to answer the question whether the Austrian tax authority may tax the intra-Community acquisitions made by D, it seems to me necessary to determine whether, given the application of Article 203 of Directive 2006/112 to the corresponding supplies, taxation under Article 41 of that directive could result in double taxation, contrary to the principle of fiscal neutrality.
43.
In my view, that analysis first requires the interpretation of the parts of the judgment in Dyrektor in which, considering that one of the objectives of Article 41 is to avoid double taxation, the Court of Justice made the taxation of intra-Community acquisitions subject to the exemption of the corresponding supplies (1). Second, I propose to determine whether that exemption for intra-Community supplies, provided for in Article 138 of Directive 2006/112, is affected by the existence of a liability under Article 203 of that directive, resulting from the incorrect invoicing of VAT (2).
1. Exemption of intra-Community supplies as a condition for the taxation of intra-Community acquisitions
44.
In paragraph 55 of the judgment in Dyrektor, the Court of Justice reiterated that the taxation of intra-Community acquisitions under Article 41 of Directive 2006/112 is subject to the exemption of the corresponding supplies. To my mind, this is a logical consequence of the legal nature of those supplies and acquisitions. They are two sides of the same coin, (
16
) which Directive 2006/112 distinguishes between solely for the purposes of allocating the authority to tax. (
17
) Thus, if an intra-Community supply and the corresponding acquisition were both subject to VAT, this would give rise to double taxation, contrary to the principles of proportionality and fiscal neutrality.
45.
It is Article 138 of Directive 2006/112 that lays down the conditions in which an intra-Community supply must be exempt from VAT. (
18
) If these conditions are not met, the corresponding acquisition cannot be taxed by the Member State designated in Article 41 of that directive. (
19
) However, it follows from the judgment in Dyrektor that the inapplicability of Article 41 is not confined to this situation. For example, even though, under Article 138 of Directive 2006/112, an intra-Community supply is exempt from VAT, the application of national legislation or practice may result, de facto, in the taxation of such a supply, by treating it as ‘non-exempt’. (
20
) Where applicable, the taxation of the corresponding acquisition under Article 41 of that directive – one of the objectives of which is precisely to avoid double taxation of intra-Community supplies and acquisitions – is excluded. (
21
)
46.
In the present case, it is not the application of national law leading to the taxation of an exempt intra-Community supply that is at issue. The referring court is instead querying the application of a provision of EU law, namely Article 203 of Directive 2006/112. Thus, it is necessary to determine whether the application of that provision by reason of the invoicing, in error, of VAT for intra-Community supplies – which are exempt under Article 138 of the directive – effectively leads to their taxation and thus precludes the taxation of the corresponding acquisitions on the basis of Article 41 of the directive.
2. The absence of double taxation when applying Article 203 of Directive 2006/112
47.
Before analysing Article 203 of Directive 2006/112, I should point out that, unless I am mistaken, there is no hierarchical relationship between that article and Article 41 of the directive. I shall therefore proceed from the premiss that the Austrian tax authority is required to apply those provisions simultaneously, unless the taxation of the acquisitions at issue is excluded for the reasons set out in the judgment in Dyrektor.
48.
According to the wording of Article 203 of Directive 2006/112, VAT is payable by any person who enters the VAT on an invoice. That provision gives rise to a tax liability whenever VAT has been incorrectly invoiced, including in the case of errors regarding the correct rate and amount of VAT. It also applies in the absence of an actual transaction. (
22
)
49.
However, Article 203 of Directive 2006/112 does not cover situations in which the VAT was invoiced correctly and the amount of VAT is correct. The case-law has inferred from that finding that in all of the situations referred to in Article 203, the amount of VAT invoiced is higher than the amount that would have been due under other provisions of the directive. Thus, Article 203 applies only to the amount of VAT exceeding that which was duly invoiced. (
23
)
50.
It seems to me that that interpretation of Article 203 of Directive 2006/112 is supported by its objective of mitigating the risk of loss of tax revenue, linked to the possibility for the recipient of an incorrect invoice to make an unjustified deduction of input VAT. (
24
)
51.
In view of those considerations, I agree with Advocate General Kokott (
25
) that the amount owed by the issuer of an invoice under Article 203 of Directive 2006/112 is not ‘any real tax liability’, but the result of strict liability. Its payment makes it possible to provide a kind of guarantee against the loss of tax revenue in the event of an undue deduction of incorrectly invoiced VAT.
52.
I am inclined to believe that the classification of Article 203 of Directive 2006/112 as a guarantee mechanism goes hand in hand with the non-final nature of the liability resulting from its application. In effect, the issuer of the invoice is entitled to a refund of incorrectly invoiced and paid VAT, provided that he shows that he acted in good faith or where he has, in sufficient time, wholly eliminated the risk of any loss of tax revenue. (
26
)
53.
The non-fiscal nature of the liability arising under Article 203 of Directive 2006/112 seems to be supported by the fact according to which any VAT incorrectly invoiced is due to the tax authority ‘independently of any obligation to pay it on account of there being a transaction subject to VAT’. (
27
) Such debts cannot be equated with ‘taxes due’, namely ‘taxes corresponding to a transaction subject to VAT or paid in so far as they were due’. (
28
) It also follows that the payment, by the recipient of the invoice, of the VAT entered incorrectly does not entitle him to a right to deduct. (
29
)
54.
In those circumstances, I take the view that Article 203 of Directive 2006/112 must be interpreted as meaning that the incurrence of a liability to the tax authority by the supplier of intra-Community supplies who has incorrectly invoiced VAT does not equate to the taxation of those supplies. Consequently, their exemption under Article 138 of the directive cannot be affected by such a liability. It also follows that the application of Article 203 of Directive 2006/112 does not prevent the Member State that, under Article 41 of that directive, is responsible for the taxation of intra-Community acquisitions, from exercising its tax jurisdiction. Conversely, the customer cannot claim any double taxation of intra-Community supply and acquisition transactions in order to contest the recovery of the VAT. (
30
)
55.
In my view, that assessment of the legal structure of Articles 203 and 41 of Directive 2006/112 is supported by the judgment of 2 July 2020, Terracult (C‑835/18, EU:C:2020:520, paragraphs 22 and 23). In that case, the Court of Justice held that the applicability of the VAT reverse charge scheme was not affected by the fact that the supplier of the goods had incorrectly invoiced VAT. It therefore follows that the incorrect invoicing of VAT giving rise to a tax liability under Article 203 is unlikely to affect either the tax classification of the transaction covered by the invoice, or the treatment that it should actually receive.
56.
Moreover, I would hesitate to consider that the simultaneous application of Articles 41 and 203 of Directive 2006/112 entails, de facto, a double economic burden for D, as the recipient of intra-Community supplies, if it has actually paid its suppliers the VAT invoiced incorrectly. (
31
) At the very most, such a burden is not permanent. Indeed, given the requirements arising from the principle of fiscal neutrality, D must be able to recover sums unduly paid to suppliers, either from those suppliers, in particular by way of a civil action, or in exceptional cases, from the tax authority. (
32
)
57.
Similarly, there is no question that D’s inability to deduct the tax due under Article 41 of Directive 2006/112 (
33
) has an impact on its economic burden. To my mind, however, this is not a decisive factor in assessing whether the simultaneous application of Article 203 of that directive results in double taxation. Moreover, I consider that lack of deductibility to be a direct consequence of the actions of the taxpayer who decided to use the tax identification number of the Member State in which dispatch or transport of the goods began. Furthermore, it is free to take the necessary measures to mitigate the economic impact of that decision. Thus, under the second paragraph of Article 41 of Directive 2006/112, the tax on acquisitions based on the first paragraph of that article must be reduced accordingly when they are subject to VAT in the Member State referred to in Article 40 of that directive. (
34
) In that Member State, the customer has, in accordance with Article 168(c) of that directive, a right to deduct the VAT paid.
58.
In the light of all the foregoing considerations, I propose that the reply to the first question should be that Article 203 of Directive 2006/112 must be interpreted as meaning that its application, by reason of the invoicing, in error, of VAT for exempt intra-Community supplies, in the Member State in which dispatch or transport began, is not such as to preclude the simultaneous taxation of the corresponding intra-Community acquisitions, in the same Member State, pursuant to Article 41 of that directive.
C.
The consequences of cancelling the liability under Article 203 of Directive 2006/112
59.
In view of the reply I propose to give to the first question, it seems to me that the examination of the second question is not necessary, in so far as it concerns the possibility that Article 41 of Directive 2006/112 becomes applicable following an adjustment of the invoices addressed to D. That question, however, retains a certain interest, in so far as it raises questions regarding the application of Article 203 of that directive and the factors that determine the timing of the chargeable event.
60.
I shall therefore begin by examining the question whether, in a situation such as that in the main proceedings, it is necessary to adjust the invoices at issue in order to cancel the liability under Article 203 of Directive 2006/112 (1). I shall then examine the structure of the provisions of Directive 2006/112 governing, respectively, the chargeable event and the place of such acquisitions (2). This will allow me to propose a reply to the second question, in the event that the Court does not share my analysis of the first question.
1. Inapplicability of Article 203 of Directive 2006/112 if there is no risk of loss of tax revenue
61.
In its second question, the referring court starts from the premiss that the liability of D’s suppliers, under Article 203 of Directive 2006/112, could be cancelled by adjusting the invoices on which VAT is incorrectly entered. However, it is important to note that that provision also ceases to apply when there is no longer any risk of loss of tax revenue.
62.
In that respect, it is clear from the request for a preliminary ruling that, during a tax audit, the Austrian tax authority found that the VAT entered on invoices for the supplies at issue was not due, and that as a result, the VAT was not deductible. To my knowledge, that assessment has been confirmed by the court of first instance. However, the case file before the General Court does not make it clear whether, before the tax audit, D had deducted the VAT invoiced incorrectly by its suppliers or whether the Austrian tax authority had refused to deduct that tax. (
35
)
63.
As I have already pointed out, (
36
) Article 203 of Directive 2006/112 is intended to apply where the incorrect invoicing of VAT entails a risk of loss of tax revenue. That risk may occur when the tax authority is prevented from identifying, in sufficient time, the grounds which preclude a request to deduct the tax invoiced when it is not due. (
37
)
64.
If there is no such risk, Article 203 of Directive 2006/112 does not apply. (
38
) According to the case-law, this is particularly the case when the tax authority has definitively refused the recipient of the invoices the right of deduction. (
39
) It seems to me, however, that, in the event that the deduction has already been made, the risk of loss of tax revenue cannot be wholly eliminated until the deduction granted to the recipient of the invoice has been cancelled. (
40
)
65.
It will be for the referring court to conduct the necessary investigations in the light of those considerations, in order to determine whether Article 203 of Directive 2006/112 continues to apply.
2. The structure of the rules relating to the chargeable event and the place of intra-Community acquisitions
66.
As noted by the Austrian Government in its written observations submitted to the General Court, the time at which the chargeable event occurs and where the VAT becomes payable must be determined on the basis of Articles 68 and 69 of Directive 2006/112.
67.
I would point out, in that regard, that Article 68 of Directive 2006/112 provides that the chargeable event for the VAT due on intra-Community acquisitions occurs at the time when the supply of similar goods is considered to have been made. The VAT becomes chargeable, under Article 69 of that directive, only on a subsequent date, namely when the invoice is issued or, at the latest, on the fifteenth day of the month following that in which the chargeable event occurs, where no invoice has been issued before that date. (
41
) In addition, Article 206 of that directive provides that, in principle, the taxable person liable is obliged to pay the VAT to the tax authority when submitting the VAT return.
68.
It can be inferred from those definitions that ‘the chargeable event, chargeability and the obligation to pay represent three successive stages in the process culminating in the collection of VAT’. (
42
)
69.
As regards the questions of the referring court on the legal consequences of the application of Article 41 of Directive 2006/112, I have already observed that that article, coming under Title V of that directive, is one of the provisions aimed at determining the place of intra-Community acquisitions. (
43
) It provides no information about the chargeable event, the chargeability of VAT or the payment obligation. In addition, that Article 41 cannot derogate from Articles 62 and 69 of the directive, which come under a separate title, namely Title VI, entitled ‘Chargeable event and chargeability of VAT’. (
44
)
70.
It follows, in my view, that the chargeable event for the VAT due for an intra-Community acquisition must be determined solely on the basis of the criteria set out in Article 68 of that directive.
71.
Thus, when, in paragraphs 52 to 55 of the judgment in Dyrektor, the Court of Justice concluded that Article 41 of Directive 2006/112 was inapplicable on the ground that legislation of a Member State treated an exempt intra-Community supply as if it were not, it did not rule on the chargeable event for the VAT, but it ruled out the tax jurisdiction of that State to tax the corresponding intra-Community acquisition.
72.
I believe that would also be the case should the General Court decide, contrary to what I propose, that the considerations set out in paragraphs 52 to 55 of the judgment in Dyrektor apply, by analogy, where there is a liability under Article 203 of Directive 2006/112 resulting from the invoicing, in error, of VAT for an exempt intra-Community supply. The inapplicability of Article 41 of that directive to the corresponding acquisition – which would be the consequence of such reasoning – cannot affect the chargeable event for the VAT or the chargeability of the VAT. Similarly, although the tax jurisdiction provided for in the latter article is, in the words of the referring court, ‘reinstated’, there is no reason to consider that the acquisition ‘occurred retroactively’. On the contrary, it has always taken place in the past, but the VAT could not be collected in the Member State referred to in Article 41.
73.
Thus, subject to investigations which are for the referring court to carry out, it seems to me that, in the present case, the chargeable event occurred when the intra-Community supplies at issue were made, namely during the years 2011 to 2015.
74.
I should also point out that, as regards the taxation of the intra-Community acquisitions at issue, the request for a preliminary ruling does not indicate the Austrian legislation on limitation periods which, according to the referring court, could restrict the action of the Austrian tax authority. I will merely observe that, as EU law stands, EU law does not lay down a period within which the right of the tax authorities to assess VAT is time-barred. It is for Member States to establish the necessary rules, in compliance with EU law, which requires reasonable time limits which protect both the taxable person and the authority concerned. (
45
)
75.
In the light of those considerations, I consider that, in the event that the General Court deems it necessary to answer the second question referred for a preliminary ruling, Article 41 of Directive 2006/112 must be interpreted as meaning that the question of the applicability of that provision is without prejudice to Article 68 of that directive, which determines, for intra-Community acquisitions, the chargeable event for VAT. According to that provision, that event occurs when the acquisition is made.
VI. Conclusion
76.
In the light of the foregoing, I propose that the General Court should answer the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:
(1)
Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
must be interpreted as meaning that the application of that article, by reason of the invoicing, in error, of value added tax (VAT) for exempt intra-Community supplies, in the Member State in which dispatch or transport began, is unable to preclude the simultaneous taxation of the corresponding intra-Community acquisitions, in the same Member State, pursuant to Article 41 of that directive.
(2)
Article 41 of Directive 2006/112
must be interpreted as meaning that the question of the applicability of that provision is without prejudice to Article 68 of that directive, which determines, for intra-Community acquisitions, the chargeable event for VAT. According to that provision, that event occurs when the acquisition is made.
José Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 29 October 2025.
[Signatures]
(
1
)	Original language: French.
(
2
)	Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
(
3
)	The facts examined in the case which gave rise to the judgment in Dyrektor took place before the amendment of Article 138(1) of Directive 2006/112 by Council Directive (EU) 2018/1910 of 4 December 2018 amending Directive 2006/112 (OJ 2018 L 311, p. 3). For further details, see points 38 and 39 of this Opinion.
(
4
)	See, to that effect, judgment of 22 April 2010, X and fiscale eenheid Facet-Facet Trading (C‑536/08 and C‑539/08, EU:C:2010:217, paragraphs 30 and 33). I note that, in relation to those provisions, Article 42 of the directive provides for a derogation applicable to ‘triangular transactions’ (see judgment of 8 December 2022, Luxury Trust Automobil, C‑247/21, EU:C:2022:966, paragraphs 45 and 51).
(
5
)	See the judgment in Dyrektor, paragraph 41 and the case-law cited. See also Streicher, A., ‘EuGH: Und es gibt sie doch – USt-Doppelbesteuerung in der EU’, LexisNexis Rechtsnews, No 29627 of 3 September 2020, at lexis360.at, which cites the judgment of 18 June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph 42). However, the possibility of the parallel application of Articles 40 and 41 of Directive 2006/112 is not ruled out (see Opinion of Advocate General Emiliou in Dyrektor Izby Skarbowej w. (Incorrect classification of chain transactions), C‑696/20, EU:C:2022:289, points 41 and 42).
(
6
)	Judgment of 8 December 2022, Luxury Trust Automobil (C‑247/21, EU:C:2022:966, paragraph 44).
(
7
)	On that concept, see Montagnier, G., ‘Harmonisation fiscale communautaire (janvier 1991 – décembre 1993)’, Revue trimestrielle de droit européen, No 2, 1993, pp. 299 to 330 (322), and Benoit, A., ‘Territorialité – Opérations triangulaires: précision de la CJUE sur la condition d’immatriculation à la TVA’, Droit fiscal, No 24, 2018, pp. 300-1 to 300-9 (p. 300-6).
(
8
)	See, to that effect, judgment of 22 April 2010, X and fiscale eenheid Facet-Facet Trading (C‑536/08 and C‑539/08, EU:C:2010:217, paragraph 44), and Opinions of Advocate General Kokott in Luxury Trust Automobil (C‑247/21, EU:C:2022:588, point 29), and of Advocate General Emiliou in Dyrektor Izby Skarbowej w. (Incorrect classification of chain transactions) (C‑696/20, EU:C:2022:289, point 43).
(
9
)	Judgment of 19 April 2018, Firma Hans Bühler (C‑580/16, EU:C:2018:261, paragraph 36). I note that that judgment was delivered following a reference for a preliminary ruling from the same referring court as the one in the present case.
(
10
)	As the Court of Justice had already held before delivery of the judgment of 19 April 2018, Firma Hans Bühler (C‑580/16, EU:C:2018:261), in its judgment of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 42).
(
11
)	The judgment in Dyrektor, paragraphs 38 and 43. The applicability of Article 41 of Directive 2006/112 was controversial: see Mittendorfer, M., ‘EuGH zur Erwerbsteuerpflicht kraft fiktiven innergemeinschaftlichen Erwerben bei Reihengeschäften’, LexisNexis Rechtsnews, No 33036 of 14 September 2022, at lexis360.at. The interpretation given in the judgment in Dyrektor is reflected in the ‘2000 VAT Guidelines’ of 15 December 2023, title 103.8. (‘place of intra-Community acquisition’), paragraph 3777, issued by the Austrian tax authority.
(
12
)	For the correct interpretation of Articles 20 and 138 of Directive 2006/112, see Opinion of Advocate General Emiliou in Dyrektor Izby Skarbowej w. (Incorrect characterisation of chain operations) (C‑696/20, EU:C:2022:289, points 55 to 59).
(
13
)	See judgment of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 31 and the case-law cited). In paragraph 51 of the judgment in Dyrektor, the wording was reversed: ‘the corollary of an intra-Community acquisition of goods being an exempt intra-Community supply’.
(
14
)	For the interpretation of Article 138 of Directive 2006/112, see judgment of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraphs 29 to 33).
(
15
)	See, in that regard, recital 7 of Directive 2018/1910.
(
16
)	To use the expression of Advocate General Emiliou in his Opinion in Dyrektor Izby Skarbowej w. (Incorrect classification of chain operations) (C‑696/20, EU:C:2022:289, point 59).
(
17
)	See, to that effect, Opinion of Advocate General Cruz Villalón in VSTR (C‑587/10, EU:C:2012:369, point 77), according to which ‘the exempt supply and the taxable acquisition are linked, forming one unit for the purposes of allocating the authority to tax between the Member States’.
(
18
)	See point 38 of this Opinion.
(
19
)	I observed in point 37 of this Opinion that the corollary of a supply under Article 138 is an intra-Community acquisition.
(
20
)	I should point out that that judgment does not identify the legal basis that allowed the Polish tax authority to tax the supply in question and to deny the customer the right of deduction. It is clear, however, from the Opinion of Advocate General Emiliou in Dyrektor Izby Skarbowej w. (Incorrect characterisation of chain transactions) (C‑696/20, EU:C:2022:289, point 16) that, under Polish legislation, an intra-Community supply from Poland could not be exempt from VAT where the customer used its Polish VAT identification number. That legislation does not seem to me to be supported by Article 138 of Directive 2006/112, in the version applicable at the material time, and so the national court could have dismissed it in favour of a direct application of Article 138. By Directive 2018/1910, the EU legislature subsequently aligned itself with the Polish legislation.
(
21
)	See, to that effect, the judgment in Dyrektor (paragraphs 41, 52, 53 and 56 in fine). Pezet, F., in Iljic, A., Maitrot de la Motte, A., Pezet, F. and Sicard, F., ‘Droit fiscal de l’Union européenne: chronique de jurisprudence et de législation (1er janvier 2022 – 31 août 2022)’, Revue de droit fiscal, No 45, 2022, pp. 384-1 to 384-13 (p. 384-10, paragraph 29), believes, in that context, that ‘double taxation arises when the customer is subject, as in the present case, to an effective double burden, including in the same Member State’.
(
22
)	See, to that effect, judgments of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968, paragraph 19), and of 30 January 2024, Dyrektor Izby Administracji Skarbowej w Lublinie (Fraud by an employee) (C‑442/22, EU:C:2024:100, paragraphs 23 and 24). See also Opinion of Advocate General Kokott in Dyrektor Izby Administracji Skarbowej w Lublinie (Fraud by an employee) (C‑442/22, EU:C:2023:702, point 26).
(
23
)	See, to that effect, judgment of 8 December 2022, Finanzamt Österreich (VAT invoiced incorrectly to final consumers) (C‑378/21, EU:C:2022:968, paragraphs 22 and 23), and Opinion of Advocate General Kokott in Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate) (C‑606/22, EU:C:2023:893, point 51).
(
24
)	Judgment of 30 January 2024, Dyrektor Izby Administracji Skarbowej w Lublinie (Fraud by an employee) (C‑442/22, EU:C:2024:100, paragraph 24). See also Opinion of Advocate General Kokott in the same case (C‑442/22, EU:C:2023:702, point 22 and footnote 7): the risk referred to in Article 203 of Directive 2006/112 arises not from the right of deduction of the recipient of the invoice, but from the absence of such a right; it is a ‘risk of loss from an unjustified deduction’.
(
25
)	Opinion of Advocate General Kokott in Dyrektor Izby Administracji Skarbowej w Lublinie (Fraud by an employee) (C‑442/22, EU:C:2023:702, point 25).
(
26
)	Judgments of 8 May 2019, EN.SA. (C‑712/17, EU:C:2019:374, paragraph 33 and the case-law cited), and of 5 September 2024, H GmbH (Direct right to VAT refund) (C‑83/23, EU:C:2024:699, paragraph 38). See, in that regard, Pezet, F., ‘Deductions. Le remboursement ne passe toujours qu’une fois. Une nouvelle poupée dans le jeu de matriochkas du droit au remboursement ?’, Revue de droit fiscal, No 28, 2024, pp. 17 to 27 (p. 25): ‘the right to a refund cannot be read independently of the objective of preserving public finances’. As noted in point 18 of this Opinion, Austrian law allows D’s suppliers to adjust incorrect invoices in order to cancel the tax liability which is related, with ex nunc effect.
(
27
)	Judgment of 31 January 2013, Stroy trans (C‑642/11, EU:C:2013:54, paragraph 29 and the case-law cited).
(
28
)	See, to that effect, judgments of 13 December 1989, Genius (C‑342/87, EU:C:1989:635, paragraphs 13 to 15), and of 15 March 2007, Reemtsma Cigarettenfabriken (C‑35/05, EU:C:2007:167, paragraph 23). That idea seems to be reflected in Paragraph 11(12) of the UStG 1994, in the version applicable to the main proceedings, which referred to the invoicing of ‘an amount of tax for which [the taxable person] is not liable … as regards the transaction’.
(
29
)	See, to that effect, judgments of 13 December 1989, Genius (C‑342/87, EU:C:1989:635, paragraph 19), and of 13 March 2025, Greentech (C‑640/23, EU:C:2025:175, paragraph 40 and the case-law cited). For an analysis of the latter judgment, see Zaman, M., ‘EuGH: Direktanspruch gegenüber der Finanzverwaltung nach Umqualifikation des Umsatzes.’, LexisNexis Rechtsnews, No 37087, 2025, at lexis360.at.
(
30
)	See, however, Streicher, A., ‘Doppelbesteuerung in der Umsatzsteuer. Materiellrechtliches Problem mit verfahrensrechtlicher Lösung?’, Abgabenverfahren und Rechtsschutz, 2020, pp. 210 to 216 (pp. 213 and 214), on the existence of double taxation when a supplier of goods transported from Austria to Hungary is liable, in the first Member State, for the VAT incorrectly invoiced and must also pay VAT in the second Member State, which rightly claims it.
(
31
)	It is unclear from the order for reference whether D paid the VAT invoiced by its suppliers for the supplies at issue.
(
32
)	See, to that effect, judgments of 5 September 2024, H GmbH (Direct right to VAT refund) (C‑83/23, EU:C:2024:699, paragraphs 32 and 33 and the case-law cited), and of 13 March 2025, Greentech (C‑640/23, EU:C:2025:175, paragraphs 37 and 38). For the right to a refund, see Pezet, F., footnote 26, op. cit., pp. 22 to 24.
(
33
)	See, to that effect, point 33 of this Opinion.
(
34
)	See, to that effect, judgment of 22 April 2010, X and fiscale eenheid Facet-Facet Trading (C‑536/08 and C‑539/08, EU:C:2010:217, paragraph 34).
(
35
)	It is apparent from the national procedural file, sent to the General Court, that the Austrian tax authority submits, before the referring court, that it found D’s suppliers to be liable for the VAT by reason of its invoicing and that it refused to allow D to deduct that tax.
(
36
)	See point 50 of the present Opinion and the case-law cited.
(
37
)	See, to that effect, judgments of 18 June 2009, Stadeco (C‑566/07, EU:C:2009:380, paragraph 30), and of 1 August 2025, Finanzamt Österreich (VAT invoiced incorrectly to final consumers II) (C‑794/23, EU:C:2025:622, paragraphs 24 and 30).
(
38
)	See judgment of 30 January 2024, Dyrektor Izby Administracji Skarbowej w Lublinie (Fraud by an employee) (C‑442/22, EU:C:2024:100, paragraph 25 and the case-law cited), and Opinion of Advocate General Kokott in the same case (C‑442/22, EU:C:2023:702, point 27). See also Pezet, F., in Iljic, A., Maitrot de la Motte, A., Pezet, F. and Sicard, F., ‘Droit fiscal de l’Union européenne: chronique de jurisprudence et de législation (1er décembre 2023 – 29 février 2024)’, Revue de droit fiscal, No 23, 2024, pp. 275-1 to 275-10 (p. 275-8, paragraph 26).
(
39
)	See, to that effect, judgment of 11 April 2013, Rusedespred (C‑138/12, EU:C:2013:233, paragraphs 24 and 33).
(
40
)	See, to that effect, judgment of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 61), according to which ‘if it … is no longer possible to cancel a deduction granted in respect of the addressee of the invoice and the issuer of the invoice has not acted in good faith, he may be held responsible for the shortfall in tax revenues’. The tax practice in Austria appears to be in line with the requirement to eliminate the loss of tax revenue: Mayr, M., ‘Vorsteuerabzug und Rechnungsberichtigung bei Anzahlungen im Umsatzsteuerrecht’, taxlex, No 5, 2014, pp. 184 to 188 (p. 187). In comparison, German law does not always require such elimination: Leipold, C., ‘UStG § 14c. Unrichtiger oder unberechtigter Steuerausweis. Berichtigung des Steuerbetrags’, in Sölch/Ringleb (ed.), Umsatzsteuer, ed. No 104, 2025, C.H. Beck, Munich, 2025, paragraphs 110 to 199 (p. 125).
(
41
)	Judgment of 9 September 2021, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Intra-Community acquisitions of diesel) (C‑855/19, EU:C:2021:714, paragraph 29).
(
42
)	Opinion of Advocate General Saugmandsgaard Øe in Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Intra-Community acquisitions of diesel) (C‑855/19, EU:C:2021:222, points 86 and 87). That assessment was confirmed in paragraph 28 of the judgment in the same case (judgment of 9 September 2021, C‑855/19, EU:C:2021:714).
(
43
)	See point 31 of this Opinion.
(
44
)	See, by analogy, judgment of 9 September 2021, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Intra-Community acquisitions of diesel) (C‑855/19, EU:C:2021:714, paragraph 33).
(
45
)	See, to that effect, judgment of 13 July 2023, Napfény-Toll (C‑615/21, EU:C:2023:573, paragraphs 30, 34 and 35).