UAB "Fast Bunkering Klaipėda“" v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos.
Date: 2015-09-03
20. That court is unsure as to whether it is possible to apply the reasoning followed by the Court in the judgment in Velker International Oil Company (C‑185/89, EU:C:1990:262) to a situation in which the goods at issue are transferred to the tanks of the vessels which will use them by a taxable person and in which adequate checks were in place to ensure that the goods were actually used for the fuelling and provisioning of vessels used on the high seas. In the judgment in A (C‑33/11, EU:C:2012:482), the Court acknowledged that the exemption provided for in what is now Article 148(f) of Directive 2006/112, for the supply of aircraft, might apply to supplies prior to the final stage of the commercial chain on the ground that taking account, in particular, of the type of goods concerned and, inter alia, of the registration and authorisation mechanisms to which their operation is subject, that extension of the exemption does not seem to be liable to give rise to constraints for the Member States and the economic agents concerned which could not be reconciled with the correct and straightforward application of the exemptions laid down by what is now Article 131 of Directive 2006/112.
26. According to that case-law, transactions for fuelling and provisioning vessels used for navigation on the high seas are exempted because they are equated with exports (judgment in Velker International Oil Company , C‑185/89, EU:C:1990:262, paragraph 21).
27. Therefore, ju st as the exemption provided for export transactions applies exclusively to the final supply of goods exported by the seller or on his behalf, the exemption laid down in Article 148(a) of Directive 2006/112 applies only to the supply of goods to a vessel operator who will use those goods for fuelling and provisioning and cannot, therefore, be extended to the supply of those goods effected at a previous stage in the commercial chain (see, to that effect, judgment in Velker International Oil Company , C‑185/89, EU:C:1990:262, paragraph 22).
28. Furthermore, such a conclusion is supported by the fact that the extension of the exemption to stages prior to the final supply of the goods to the operator of the vessels, who will use them for their fuelling and provisioning, would require Member States to set up systems of supervision and control in order to satisfy themselves as to the ultimate use of the goods supplied free of tax. Far from bringing about administrative simplification, such systems would amount to constraints on the Member States and the taxable persons concerned which it would be impossible to reconcile with the correct and straightforward application of the exemptions laid down in Article 131 of Directive 2006/112 (see, to that effect, judgment in Velker International Oil Company , C‑185/89, EU:C:1990:262, paragraph 24).
37. However, the Court has acknowledged, in the context of Article 15(6) of the Sixth Directive, the provisions of which are set out in almost identical terms to those of Article 148(f) of Directive 2006/112, that the exemption laid down in that provision may apply to the supply of an aircraft to an operator which is not itself an airline operating for reward chiefly on international routes, but which acquires it for the purposes of exclusive use by such an undertaking, without transferring to the latter the power to dispose of the aircraft as owner, if that use is known and duly established. In that connection, the Court emphasised, inter alia, in the light of the type of object at issue and, inter alia, the registration and authorisation mechanisms in place for its use, the verification of its actual use is not liable to give rise to constraints for the Member States and the economic operators concerned which would be irreconcilable with the correct and straightforward application of the exemptions (see, to that effect, judgment in A , C‑33/11, EU:C:2012:482, paragraphs 56 and 57).
39. In that connection, it must be recalled, as a preliminary point, that in paragraph 53 of the judgment in A (C‑33/11, EU:C:2012:482), the Court expressly held that, as regards the interpretation of Article 15(6) of the Sixth Directive, a provision the wording of which is identical to Article 148(f) of Directive 2006/112, there was nothing which required the approaches adopted in the judgment in Velker International Oil Company (C‑185/89, EU:C:1990:262) concerning the interpretation of Article 15(4) of the Sixth Directive, the wording of which is identical to Article 148(a) of Directive 2006/112, to be carried across.
41. Furthermore, the VAT exemptions referred to in Article 148 of Directive 2006/112 constitute independent concepts of EU law which must, therefore, be interpreted and applied uniformly throughout the European Union (see, to that effect, judgment in Unterpertinger , C‑212/01, EU:C:2003:625, paragraph 34).
42. In the judgment in A (C‑33/11, EU:C:2012:482), the Court based its findings, in particular, on the fact that the exemption at issue could be applied to the supply of an aircraft made in the circumstances set out in paragraph 37 of the present judgment on the existence of rules relating to registration and permits to fly existing in all Member States on account, in particular, of the fact that all the States are parties to the International Civil Aviation Convention mentioned in paragraph 3 of the present judgment.
51. In order for a transaction to be classified as a supply of goods to a person for the purposes of Article 14(1) of Directive 2006/112, it is necessary that that transaction has the effect of authorising that person actually to dispose of them, as if he was the owner of the goods. According to settled case-law, the concept of ‘supply of goods’ referred to in Article 14(1) of Directive 2006/112 does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law, but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner (judgment in Evita-K , C‑78/12, EU:C:2013:486, paragraph 33 and the case-law cited).