EMAG Handel Eder OHG v Finanzlandesdirektion für Kärnten.
Date: 2006-04-06
29. As the Advocate General pointed out at points 23 to 25 of her Opinion, any intra-Community acquisition that is taxed in the Member State where the dispatch or intra-Community transport of goods ends under the first subparagraph of Article 28a(1)(a) has, as a corollary, an exempted supply in the Member State in which that dispatch or transport began under the first subparagraph of Article 28c(A)(a) of that directive.
30. Under the transitional arrangements laid down in Title XVIa of the Sixth Directive, firstly, the vendor effects an exempted supply in the Member State of the departure of the dispatch or intra-Community transport of the goods in accordance with Article 8(1)(a) and the first subparagraph of Article 28c(A)(a) of that directive and, then, is granted by that Member State a deduction or refund of the VAT due or paid as input tax in that Member State in respect of those goods under Article 17(3)(b) of that directive, as amended by Article 28f(1) of that directive. For his part, the person acquiring the goods makes an intra-Community acquisition that is taxed in the Member State in which that dispatch or intra-Community transport ends under the first subparagraph of Article 28a(1)(a) and Article 28b(A)(1) of the Sixth Directive.
38. Firstly, even if two successive supplies give rise only to a single movement of goods, they must be regarded as having followed each other in time. The intermediary acquiring the goods can transfer the right to dispose of the goods as owner to the second person acquiring the goods only if it has previously been transferred to him by the first vendor and, therefore, the second supply can take place only after the first supply has been effected.
40. Secondly, if the relevant provisions of the Sixth Directive are interpreted as meaning that the single intra-Community movement of goods is ascribed to only one of the two successive supplies, the purpose of the transitional arrangements under Title XVIa of that directive, namely to transfer the tax revenue to the Member State in which final consumption of the goods supplied takes place, can be easily attained. That transfer in fact occurs by means of the single transaction giving rise to an intra-Community movement of goods under the first subparagraph of Article 28c(A)(a) (exemption by the Member State of departure of the intra-Community dispatch or transport) in conjunction with Article 17(3)(b), as amended by Article 28f(1) (deduction or reimbursement by the Member State of departure of the VAT due or paid by way of input tax in that Member State), and the first subparagraph of Article 28a(1)(a) (taxation by the Member State of arrival of the intra-Community acquisition) of the Sixth Directive. That mechanism makes it possible to delimit clearly the authority to tax of the Member States concerned.
45. The answer to the second and fourth questions must therefore be that, where two successive supplies of the same goods, effected for consideration between taxable `persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, that dispatch or transport can be ascribed to only one of the two supplies, which alone will be exempted from tax under the first subparagraph of Article 28c(A)(a) of the Sixth Directive. That interpretation holds good regardless of which taxable person – the first vendor, the intermediary acquiring the goods or the second person acquiring the goods – has the right to dispose of the goods during that dispatch or transport.
Question 1
46. The first point to be made with regard to the determination of the place where the supply is deemed to take place is that the Sixth Directive makes no distinction between ‘intra-Community’ supplies and ‘internal’ supplies. Article 8(1) of that directive makes a distinction only between supplies in which goods are dispatched or transported (subparagraph (a)), those in which goods are not dispatched or transported (subparagraph (b)) and those effected on board ships, aircraft or trains during the part of a transport of passengers effected within the Community (subparagraph (c)), the latter situation being irrelevant to the case in the main proceedings.
50. If the first of the two successive supplies is the supply which involves intra-Community dispatch or transport of goods and which, therefore, has as a corollary an intra-Community acquisition taxed in the Member State of arrival of that dispatch or transport, the second supply is deemed to occur in the place of the intra-Community acquisition preceding it, that is, in the Member State of arrival. Conversely, if the supply involving intra-Community dispatch or transport of goods is the second of the two successive supplies, the first supply, which, necessarily, occurred before the goods were dispatched or transported, is deemed to occur in the Member State of the departure of that dispatch or transport.
51. The answer to the first question must therefore be that only the place of the supply which gives rise to dispatch or intra-Community transport of goods is determined in accordance with Article 8(1)(a) of the Sixth Directive; that place is deemed to be in the Member State of the departure of that dispatch or transport. The place of the other supply is determined in accordance with Article 8(1)(b) of that directive; that place is deemed to be either in the Member State of departure or in the Member State of arrival of that dispatch or transport, according to whether that supply is the first or the second of the two successive supplies.
Question 3