Case C‑108/17

‘Enteco Baltic’ UAB

v

Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

(Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas)

(Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 143(1)(d) and Article 143(2) — Exemptions from VAT on importation — Importation followed by an intra-Community supply — Conditions — Evidence of dispatch or transport of the goods to another Member State — Transport under an excise duty suspension arrangement — Transfer to the purchaser of the right to dispose of goods as owner — Tax evasion — No obligation of the competent authority to help the taxable person collect the necessary information to show that the conditions for exemption are satisfied)

Summary — Judgment of the Court (Fourth Chamber), 20 June 2018

Harmonisation of fiscal legislation—Common system of value added tax—Exemptions—Exemptions on importation—Importation followed by an intra-Community supply—Check by the competent national authorities that there is a transfer of the power to dispose of the goods as owner—Obligation of the tax authorities of the Member State from which the goods are consigned or transported to ask the authorities of the Member State of destination for information accessible only to the public authorities—None

Harmonisation of fiscal legislation—Common system of value added tax—Exemptions—Exemptions on importation—Importation followed by an intra-Community supply—Conditions for the exemption of that supply not satisfied because of tax evasion on the part of the purchaser—Administrative practice refusing exemption to an importer acting in good faith—Not permissible—Electronic communications between the importer and the purchaser—Irrelevant

Harmonisation of fiscal legislation—Common system of value added tax—Exemptions—Exemptions on importation—Importation followed by an intra-Community supply—Goods not transferred directly to the purchaser but to transport undertakings and tax warehouses—Transfer to the purchaser of the power to dispose of the goods as owner—Refusal of exemption by the competent authorities—Not permissible

Harmonisation of fiscal legislation—Common system of value added tax—Exemptions—Exemptions on importation—Importation followed by an intra-Community supply—Transport of imported goods from a tax warehouse in the Member State of import not to the purchaser but to a tax warehouse in another Member State—Evidence to show that goods have been dispatched or transported to another Member State—Imported goods intended to be transported or dispatched from the Member State of import to another Member State—Documents that may be taken into account to show that goods are intended to be transported or dispatched

Harmonisation of fiscal legislation—Common system of value added tax—Exemptions—Exemptions on importation—Importation followed by an intra-Community supply—Change of circumstances after the importation—Supply of goods to a taxable person other than the person mentioned in the import declaration—Communication of all the information on the identity of the new purchaser to the competent authorities of the Member State of import—Refusal of exemption by those authorities—Not permissible—Exception—Proof that the substantive conditions are satisfied

Article 143(1)(d) and Article 143(2)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/69/EC of 25 June 2009, must be interpreted as precluding the competent authorities of a Member State from refusing exemption from value added tax on importation on the sole ground that, following a change of circumstances after the importation, the goods in question have been supplied to a taxable person other than the person whose value added tax identification number was stated in the import declaration, where the importer has communicated all the information on the identity of the new purchaser to the competent authorities of the Member State of import, provided that it is shown that the substantive conditions for the exemption of the subsequent intra-Community supply are actually satisfied. (see para. 61, operative part 1)

Article 143(1)(d) in conjunction with Article 138 and Article 143(2)(c) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning that: – documents which confirm the transport of goods from a tax warehouse in the Member State of import, not to the purchaser but to a tax warehouse in another Member State, may be regarded as sufficient evidence of dispatch or transport of the goods to another Member State; – documents such as consignment notes on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol of 5 July 1978, and electronic administrative documents accompanying movements under suspension of excise duty may be taken into account to show that, at the time of importation into a Member State, the goods concerned are intended to be dispatched or transported to another Member State within the meaning of Article 143(2)(c) of Directive 2006/112, as amended, provided that the documents are submitted at that time and include all the necessary information. Those documents, as also the electronic confirmations of the supply of the goods and the report of receipt issued following a movement under suspension of excise duty, are capable of showing that the goods have actually been dispatched or transported to another Member State in accordance with Article 138(1) of Directive 2006/112, as amended. (see para. 81, operative part 2)

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as precluding the authorities of a Member State from refusing an importer the right to the exemption from value added tax laid down in that provision for imports of goods into that Member State carried out by him and followed by intra-Community supplies on the ground that the goods were not transferred directly to the purchaser but were handled by transport undertakings and tax warehouses designated by the purchaser, where the power to dispose of the goods as owner was transferred to the purchaser by the importer. In this context, the concept of ‘supply of goods’ within the meaning of Article 14(1) of that directive, as amended, must be interpreted in the same way as in the context of Article 167 of the directive, as amended. (see para. 92, operative part 3)

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as precluding an administrative practice under which, in circumstances such as those of the dispute in the main proceedings, an importer acting in good faith is refused the right to the exemption from value added tax on importation where the conditions for the exemption of the subsequent intra-Community supply are not satisfied, because of tax evasion on the part of the purchaser, unless it is shown that the importer knew or ought to have known that the transaction was involved in tax evasion committed by the purchaser and did not take all reasonable steps in his power to avoid participation in the evasion. The mere fact that the importer and the purchaser communicated by electronic means of communication cannot allow it to be presumed that the importer knew or could have known that he was participating in tax evasion. (see para. 100, operative part 4)