Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, a supply of goods by a taxable person established in a first Member State is not exempt from value added tax under that provision where, prior to entering into that supply transaction, the person acquiring the goods, who is identified for value added tax purposes in a second Member State, informs the supplier that the goods will be resold immediately to a taxable person established in a third Member State, before he takes them out of the first Member State and transports them to that third taxable person, provided that that second supply has in fact been carried out and the goods have then been transported from the first Member State to the Member State of the third taxable person. The fact that the first person acquiring the goods is identified for value added tax purposes in a Member State other than that of the place of the first supply or that of the place of the final acquisition is not a criterion for classification of an intra-Community transaction or, in itself, evidence sufficient to show that a transaction is an intra-Community one.

In the case of transactions which, such as those at issue in the main proceedings, form a chain of two successive supplies that have given rise to only a single intra-Community transport, it is clear from the Court’s case-law, first, that the intra-Community transport can be ascribed to only one of the two supplies, which, therefore, will alone be exempted under Article 138(1) of the VAT Directive (see, to that effect, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 45).

Secondly, in order to determine which of the two supplies the intra-Community transport must be ascribed to, it is necessary to undertake an overall assessment of all the specific circumstances of the case (see, to that effect, judgments of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 27, and of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 32).

In that assessment, it must be determined in particular when the second transfer of the right to dispose of the goods as owner, to the person finally acquiring the goods, has occurred. In a situation where the second transfer of that right, that is to say, the second supply, has taken place before the intra-Community transport occurs, the intra-Community transport cannot be ascribed to the first supply to the first person acquiring the goods (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 32 and the case-law cited).

In the case of two successive supplies that have given rise to only a single intra-Community transport, in order to determine which of the two supplies that transport must be ascribed to, it must be established whether that transport took place after the second supply. If that were to be the case, only the second supply should be classified as an intra-Community supply and be entitled, where appropriate, to the exemption provided for in Article 138(1) of the VAT Directive.

(see paras 34-37, 44, operative part 1)