Case C‑26/16

Santogal M-Comércio e Reparação de Automóveis Lda

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Autoridade Tributária e Aduaneira

(Reference for a preliminary ruling from the le Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD))

(Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 138(2)(a) — Conditions for the grant of the exemption for an intra-Community supply of a new means of transport — Purchaser’s residence in the Member State of destination — Temporary registration in the Member State of destination — Risk of tax evasion — Good faith of the vendor — Obligation of diligence on the part of the vendor)

Summary — Judgment of the Court (Ninth Chamber), 14 June 2017

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—Supply of new means of transport—Transport by the purchaser to another Member State and registration in that State on a temporary basis—Refusal to grant an exemption to the vendor in the event of a fraud committed by the purchaser—Not permissible—Limits—Vendor knew or ought to have known of the existence of a fraud—Verification a matter for the national court

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—Supply of new means of transport—Transport by the purchaser to another Member State and registration in that State on a temporary basis—Expiry of the temporary registration and payment of the tax in the Member State of destination not established—Member State of departure’s refusal to grant an exemption—Not permissible

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—Supply of new means of transport—Refusal to grant vendor an exemption on the sole ground of the temporary nature of the registration issued in the Member State of destination—Not permissible

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—Supply of new means of transport—National legislation making the benefit of the exemption subject to the requirement that the purchaser resident in the Member State of destination—Not permissible

Article 138(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax precludes national provisions from making the benefit of the exemption of an intra-Community supply of a new means of transport subject to the requirement that the purchaser of that means of transport must be established or domiciled in the Member State of destination of that means of transport. The imposition of such a condition would, moreover, be contrary to the general scheme of that provision as well as to the background and objectives of the transitional VAT arrangements applicable to intra-Community trade, as mentioned in paragraphs 37 to 39 of the present judgment. Indeed, by refusing to exempt an intra-Community supply on the sole ground that the purchaser of the new means of transport is not established or domiciled in the Member State of destination, irrespective even of the fact that the substantive conditions of the exemption are met, the Member State of supply would be compelled to tax a transaction which, provided those conditions are met, should be taxed as an intra-Community acquisition in the Member State of destination. This would result in a double taxation, contrary to the principle of fiscal neutrality. The refusal to grant the benefit of the exemption laid down in Article 138(2)(a) of the VAT Directive on the sole ground that the purchaser does not reside in the Member State of destination would be contrary to the allocation of powers of taxation and capable of affecting the principle of tax neutrality. Moreover, as is apparent from paragraph 45 of the present judgment, such a refusal may result in the risk of a double taxation. (see paras 45, 51, 52, operative part 1)

Article 138(2)(a) of Directive 2006/112 must be interpreted as meaning that the exemption of a supply of a new means of transport cannot be refused in the Member State of supply on the sole ground that that means of transport has been registered only temporarily in the Member State of destination. (see para. 59, operative part 2)

Article 138(2)(a) of Directive 2006/112 precludes the vendor of a new means of transport, transported by the purchaser to another Member State and registered in that latter State temporarily, from being required to pay value added tax at a later stage when it is not established that the temporary registration regime has ended and value added tax has or will be paid in the Member State of destination. Indeed, first, in such circumstances, proof of the physical movement of that means of transport to its place of final use, which the vendor might be able to submit to the tax authorities, depends essentially on information that he receives for that purpose from the person acquiring the goods (see, by analogy, judgment of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 37). Second, according to the case-law of the Court, the vendor cannot be required to provide evidence relating to the taxation of the intra-Community acquisition of the goods at issue in order to benefit from the exemption of the corresponding supply (judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 55). To make the exemption subject to the prior determination by the Member State of final use of the new means of transport would amount precisely to imposing such an obligation on the vendor. Indeed, that could impose on the vendor the burden of proving that definitive registration has been granted, which could occur, if it be the case, after payment of VAT by the purchaser. (see paras 66, 67, 69, operative part 3)