X v Skatteverket.
Date: 2010-11-18
22. It should be borne in mind, as a preliminary point, that the transitional arrangements for VAT applicable to intra-Community trade established by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added t ax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1) are based on a new chargeable event, namely the intra-Community acquisition of goods, enabling the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place (see, to that effect, Case C‑409/04 Teleos and Others  [2007] ECR I‑7797, paragraphs 21, 22 and 36).
23. Thus, the mechanism consisting, on the one hand, in an exemption granted by the Member State of departure, of the supply giving rise to the intra-Community dispatch or transport, together with a right to deduct or reimbursement of the input VAT paid in that Member State and, on the other hand, in taxation, by the Member State of arrival, of the intra-Community acquisition, was intended to ensure a clear demarcation of the sovereignty of the Member States in matters of taxation (see, to that effect, Case C‑245/04 EMAG Handel Eder  [2006] ECR I‑3227, paragraph 40).
24. As regards, in particular, the rules pertaining to the taxation of acquisitions of new means of transport, it can be seen from recital 11 in the preamble to Directive 2006/112, which reiterates the content of the 11th recital in the preamble to Directive 91/680, that those rules, in addition to covering the allocation of authority to tax, aim to prevent distortions of competition between the Member States liable to result from the application of differing rates of tax. If there were no transitional arrangements, the marketing of new means of transport would tend to be confined to Member States having a low VAT rate, to the detriment of the other Member States and their taxation revenue. As the Advocate General pointed out at point 34 of her Opinion, the European Union legislature has, by Article 2(1)(b)(ii) of Directive 2006/112, made the acquisition of new means of transport not only by taxable persons and non-taxable legal persons, but also by private persons, subject to tax, inter alia because of the high value and easy transportability of those goods.
26. Regarding, in the first place, the question whether the transport of the goods in question to the purchaser, for the purposes of the first paragraph of Article 20 and Article 138(1) of Directive 2006/112, must take place within a certain period of time, it should be observed, at the outset, that those provisions lay down conditions which must be satisfied in order for a transaction to be classified as an intra-Community supply or acquisition.
27. Thus, the intra-Community acquisition of goods takes place and the exemption of the intra-Community supply of goods becomes applicable only when the right to dispose of the goods as owner has been transferred to the purchaser and the supplier establishes that those goods have been dispatched or transported to another Member State and when, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply (see Teleos and Others , paragraph 42, and Case C‑184/05 Twoh International  [2007] ECR I‑7897, paragraph 23).
28. Moreover, the intra-Community supply of goods and their intra-Community acquisition are, in fact, one and the same financial transaction, such that the two provisions referred to in paragraph 26 of this judgment must be interpreted in such a way as to confer on them identical meaning and scope (see, regarding the first subparagraph of Article 28a(3) and the first subparagraph of Article 28c(A)(a) of the Sixth Directive, the contents of which correspond to the first paragraph of Article 20 and to Article 138(1) of Directive 2006/112 respectively, Teleos and Others , paragraphs 23 and 34).
31. The application of a time period within which the transport of the goods to the purchaser must be commenced or completed would give purchasers the option of choosing the Member State where the acquisition of a new means of transport would be taxed according to the most favourable rates and terms. Such an opportunity would jeopardise the achievement of the objective of the transitional VAT arrangements applicable to intra-Community trade in that it would deprive those Member States where the actual final consumption takes place of the tax revenue which is rightfully theirs. Leaving such a choice to purchasers would also run counter to the objective of preventing distortions of competition between Member States in trade involving new means of transport.
33. Consequently, the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on observance of a specific time period during which the transport of the goods supplied or acquired must be commenced or completed. However, in order for such a classification to be made and the place of acquisition determined, a temporal and material link must be established between the supply of the goods in question and the transport of those goods, as well as continuity in the course of the transaction.
35. As is clear from Article 131 of Directive 2006/112, it is for the Member States to lay down the conditions for the application of the exemption of intra-Community supplies of goods with a view to ensuring the correct and straightforward application of those exemptions and to prevent any possible fraud, evasion and abuse. It is important to note, however, that when they exercise their powers, Member States must comply with the general principles of law which form part of the legal order of the European Union, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, Case C‑384/04 Federation of Technological Industries and Others [2006] ECR I‑4191, paragraphs 29 and 30, and Case C‑271/06 Netto Supermarkt  [2008] I‑771, paragraph 18).
36. In particular, as regards the principle of proportionality, the Court has held that, in accordance with that principle, the Member States must employ means which, whilst enabling them effectively to attain the objectives pursued by their domestic laws, cause the least possible detriment to the objectives and principles laid down by the relevant European Union legislation (see Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others [1997] ECR I‑7281, paragraph 46; and also Teleos and Others , paragraph 52, and Netto Supermarkt , paragraph 19).
37. Moreover, the measures which the Member States adopt to that end may not be used in such a way as to undermine the neutrality of VAT (see Case C‑454/98 Schmeink & Cofreth and Strobel  [2000] ECR I‑6973, paragraph 59; Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 92; and also C‑146/05 Collée  [2007] ECR I‑7861, paragraph 26).
41. In that regard, regard should be had to the settled case-law, according to which the expressions which define taxable transactions for the purposes of the common system of VAT are objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C‑354/03, C-355/03 and C‑484/03 Optigen and Others [2006] ECR I‑483, paragraph 44, and Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling [2006] ECR I‑6161, paragraph 41). Consequently, it is necessary that the classification of intra-Community supplies and acquisitions be made on the basis of objective matters, such as the physical movement of the goods concerned between Member States ( Teleos and Others , paragraph 40).
42. As regards new means of transport, however, the application of the rule referred to in the preceding paragraph to intra-Community transactions involving such goods is not a simple matter, given the particular nature of those transactions.
43. In that regard, it is difficult, first of all, to distinguish the transport of means of transport from their use. Secondly, the classification of the transaction is complicated by the fact that the VAT on that transaction must also be paid by a non-taxable individual, who is not subject to the obligations relating to tax returns and accounting, so that a subsequent check of that individual is not possible. Moreover, the individual, as final consumer, cannot claim a VAT deduction, even in the event of resale of a purchased vehicle, and therefore has a greater interest than a trader in avoiding the tax.
44. In those circumstances, in order to classify a transaction as an intra-Community acquisition, it is necessary to conduct an overall assessment of all the relevant objective evidence in order to determine whether the goods purchased have actually left the territory of the Member State of supply and, if so, in which Member State the final consumption will take place.
45. In that regard, as the Advocate General stated at point 38 of her Opinion, significance may be attached to factors such as the amount of time spent on transporting the goods in question, the place of registration and usual use of the goods, the place of residence of the purchaser and the presence or absence of links between the purchaser and the Member State of supply or another Member State.
47. Moreover, in the specific case of the acquisition of a new means of transport, account must also be taken, as far as possible, of the purchaser’s intentions at the time of the acquisition, provided that they are supported by objective evidence (see, by analogy, regarding entitlement to deduction, Case 268/83 Rompelman  [1985] ECR 655, paragraph 24; Case C‑230/94 Enkler  [1996] ECR I‑4517, paragraph 24; and Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others [2000] ECR I‑1577, paragraph 47). That is all the more necessary in a situation where the purchaser acquires the right to dispose of goods in question as owner in the Member State of supply and undertakes to transport them to the Member State of destination.
50. The essential issue is, in fact, to determine the Member State in which the final, permanent use of the means of transport will take place. In that regard, the use of the means of transport, even for leisure purposes, represents only a negligible period of time in relation to the usual lifespan of a means of transport.
51. In view of the foregoing considerations, the answer to the first to third questions is that the first paragraph of Article 20 and Article 138(1) of Directive 2006/112 are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on the observance of any time period during which the transport of the goods in question from the Member State of supply to the Member State of destination must be commenced or completed. In the specific case of the acquisition of a new means of transport within the meaning of Article 2(1)(b)(ii) of that directive, the determination of the intra-Community nature of the transaction must be made through an overall assessment of all the objective circumstances and the purchaser’s intentions, provided that it is supported by objective evidence which make it possible to identify the Member State in which final use of the goods concerned is envisaged.
The fourth question