Milan Vinš v Odvolací finanční ředitelství.
Date: 2019-03-28
22


It must be recalled, in the first place, that in accordance with Article 146(1)(a) of the VAT Directive the Member States are to exempt the supply of goods dispatched or transported to a destination outside the European Union by or on behalf of the vendor. That provision should be read in conjunction with Article 14(1) of the directive, in accordance with which ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner (see, to that effect, judgment of 28 February 2018, Pieńkowski, C‑307/16, EU:C:2018:124, paragraph 24).
23


That exemption is intended to ensure that the supplies of goods concerned are taxed at the place of destination of those goods, namely the place where the exported products will be consumed (see, to that effect, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 34).
24


It follows from the provisions mentioned in paragraph 22 above, and particularly from the word ‘dispatched’ in Article 146(1)(a) of the VAT Directive, that the export of goods is effected and the exemption of the supply of goods for export becomes applicable when the right to dispose of the goods as owner has been transferred to the purchaser, the supplier establishes that those goods have been dispatched or transported outside the European Union, and, as a result of that dispatch or that transport, the goods have physically left the territory of the European Union (see, to that effect, judgment of 28 February 2018, Pieńkowski, C‑307/16, EU:C:2018:124, paragraph 25).
26


Second, Article 146(1)(a) of the VAT Directive does not lay down a condition, such as that provided for in Paragraph 66(1) of Law No 235/2004, that the goods intended for exportation must be placed under the export customs procedure for the exemption for export laid down in Article 146(1)(a) to be applicable.
27


Consequently, the classification of a transaction as a supply for export under Article 146(1)(a) of the VAT Directive cannot depend on the placing of the goods under the export customs procedure, failure to do so having the consequence of depriving the taxable person of the exemption for export (see, by analogy, judgment of 19 December 2013, BDV Hungary Trading, C‑563/12, EU:C:2013:854, paragraph 27).
29


As regards that principle, it must be recalled that a national measure goes beyond what is necessary to ensure the correct collection of the tax if, in essence, it makes the right of exemption from VAT subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied. Transactions should be taxed taking into account their objective characteristics (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 38).
32


According to the Court’s case-law, there are only two situations in which the failure to meet a formal requirement may result in the loss of entitlement to an exemption from VAT (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 40).
33


First, the principle of fiscal neutrality cannot be relied on for the purposes of an exemption from VAT by a taxable person who has intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT. According to the Court’s case-law, it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of him to satisfy himself that the transaction which he is carrying out does not result in his participation in tax evasion. If it were concluded that the taxable person concerned knew or ought to have known that the transaction he carried out was part of a fraud committed by the purchaser and that he had not taken every step which could reasonably be asked of him to prevent that fraud from being committed, he would have to be refused the exemption (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 41).
34


In the present case, there is nothing before the Court to indicate that the refusal of the exemption at issue in the main proceedings was based on the existence of such evasion.
35


Second, a breach of a formal requirement may lead to the refusal of an exemption from VAT if the effect of the breach is to prevent the production of conclusive evidence that the substantive requirements have been satisfied (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 42).
38


It follows that, in circumstances such as those at issue in the main proceedings, the failure to comply with the formal requirement of placing the goods intended to be exported under the export customs procedure cannot lead to the exporter losing his right to the exemption on export, provided that it is established that the goods concerned have actually left the territory of the European Union.
39


That conclusion is not invalidated by the Czech Government’s argument that the exporter should in any event, by virtue in particular of Articles 59(1) and 161(2) of the Customs Code, have placed the goods under that customs procedure by means of a customs declaration to that effect, which he could if necessary have made ex post, so that the initial failure to comply with that requirement would not entail the definitive loss of the right to the exemption on export. As follows from paragraphs 29 to 31 above, such placing, whether done before or after the export, constitutes a formal obligation which, moreover, belongs not to the common system of VAT but to the customs system. Consequently, non-compliance with that obligation does not in itself preclude compliance with the substantive conditions for the grant of the exemption.