Euro Tyre Holding BV v Staatssecretaris van Financiën.
Date: 2010-12-16
21. It is apparent from the order for reference that, by that question, the national court seeks to obtain clarification in relation to the answer given by the Court in EMAG Handel Eder . In paragraph 45 of that judgment and in the first subparagraph of paragraph 1 of the operative part thereof, the Court ruled 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. In that connection, the referring court observes that the Court did not specify how one should determine to which of those two supplies the transport should be ascribed.
23. In paragraph 38 of EMAG Handel Eder , the Court held that, 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.
24. As regards the place of those two supplies, the Court held that, if the first of the two successive supplies is the supply which involves the 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 the 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 ( EMAG Handel Eder , paragraph 50).
25. Therefore, only the place of the supply which gives rise to the 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 ( EMAG Handel Eder , paragraph 51).
27. As regards the question to which supply the intra-Community transport should be ascribed if it is effected by or on behalf of the person who, as first person acquiring the goods and second supplier, was involved in both supplies, it should be pointed out that the Sixth Directive does not lay down any general rule in this regard. The answer to that question depends on an overall assessment of all the specific circumstances from which it is possible to determine which supply fulfils all the conditions relating to an intra-Community supply.
28. In that regard, it should be borne in mind that, just like other expressions which define taxable transactions for the purposes of the Sixth Directive (see, inter alia, 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), the meanings of ‘intra-Community supply’ and ‘intra-Community acquisition’ are objective in nature and apply without regard to the purpose or results of the transactions concerned (Case C‑409/04 Teleos and Others  [2007] ECR I‑7797, paragraph 38; and Case C‑285/09 R.  [2010] ECR I‑0000, paragraph 39).
29. It also follows from the Court’s case-law that exemption of the intra-Community supply of goods for the purposes of the first subparagraph of Article 28c(A)(a) of the Sixth Directive becomes applicable only if the right to dispose of the goods as owner has been transferred to the person acquiring the goods, if the supplier establishes that those goods have been dispatched or transported to another Member State and if, as a result of that dispatch or transport, they have physically left the territory of the Member State of supply (see, to that effect, Teleos and Others , paragraph 42; Case C‑184/05 Twoh International  [2007] ECR I‑7897, paragraph 23; and Case C‑84/09 X  [2010] ECR I‑0000, paragraph 27).
31. As regards, first of all, the transfer of the right to dispose of the goods as owner in the context of supplies effected successively, it should be borne in mind that the Court held, in paragraph 38 of EMAG Handel Eder , that 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.
32. In circumstances such as those at issue in the main proceedings, it must therefore be held that the collection of the goods from ETH’s warehouse by the representative of the first person acquiring the goods must be regarded as the transfer to that person of the right to dispose of the goods as owner, and should be ascribed to the first supply.
33. However, that circumstance does not of itself suffice to justify the conclusion that the first supply constitutes an intra-Community supply. It cannot be ruled out that the second transfer of the power to dispose of the goods as owner may also take place in the Member State of the first supply, before the intra-Community transport has occurred. In such a case, the intra-Community transport could no longer be ascribed to that supply.
34. In a situation where the person acquiring the goods obtains the right to dispose of the goods as owner in the Member State of supply and undertakes to transport them to the Member State of destination, as occurs with supplies having as a condition that the goods be collected from the supplier’s warehouse, account must 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, to that effect, X , paragraph 47 and case-law cited).
35. In this case, if the purchasers, as the first persons acquiring the goods, expressed their intention to transport the goods to a Member State other than the State of supply and presented their VAT identification number attributed by that other Member State, ETH was entitled to consider that the transactions that it effected constituted intra-Community supplies.
36. However, after the transfer to the person acquiring the goods of the right to dispose of the goods as owner, the supplier effecting the first supply might be held liable to VAT on that transaction if he had been informed by that person of the fact that the goods would be sold on to another taxable person before they left the Member State of supply and if, following that information, the supplier omitted to send the person acquiring the goods a rectified invoice including VAT.
37. Next, as regards the condition relating to evidence, inasmuch as it constitutes one of the conditions of exemption referred to in paragraph 29 of this judgment, it should be pointed out that, even if it is incumbent as a rule on the supplier to establish that the goods have been dispatched or transported to another Member State, in circumstances where the right to dispose of the goods as owner is transferred to the person acquiring the goods in the Member State of supply and where it is for that person acquiring the goods to dispatch or transport the goods out of the Member State of supply, the evidence that the supplier might submit to the tax authorities depends essentially on information that he receives for that purpose from the person acquiring the goods.
38. It is apparent from the Court’s case-law that it is legitimate to require, in such a case, that the supplier act in good faith and take every reasonable measure in his power to ensure that the transaction that he effects does not lead to his participation in tax fraud. However, once the supplier has fulfilled his obligations relating to evidence of an intra-Community supply, where the contractual obligation to dispatch or transport the goods out of the Member State of supply has not been satisfied by the person acquiring the goods, it is the latter who should be held liable for the VAT in that Member State (see, to that effect, Teleos and Others , paragraphs 66 and 67).
40. Lastly, in respect of the condition relating to the dispatch or transport of the goods out of the Member State of supply, it should be pointed out that, although, as is apparent from paragraph 45 of EMAG Handel Eder , the question who holds the right to dispose of the goods during the intra-Community transport is irrelevant, the circumstance that that transport is effected by the owner of the goods or on his behalf might none the less play a role in the decision of whether to ascribe that transport to the first or second supply. However, in cases where the transport is effected by or on behalf of the person who participates in both transactions, as in the main proceedings, that circumstance is not decisive.
43. That interpretation is not invalidated by the wording of Article 28b(A)(1) of the Sixth Directive, according to which the place of the intra-Community acquisition of goods is deemed to be the place where the goods are at the time when dispatch or transport to the person acquiring them ends. As is apparent from the Court’s case-law, the purpose of the transitional arrangements for the taxation of trade between Member States, of which that provision forms part, is to transfer the tax revenue to the Member State in which final consumption of the goods supplied takes place (see, to that effect, Joined Cases C‑536/08 and C‑539/08 X and fiscale eenheid Facet-Facet Trading  [2010] ECR I‑0000, paragraphs 30 and 31) and not to determine which person effected an intra-Community supply.
44. In view of the foregoing considerations, the answer to the question referred is that, when goods are the subject of two successive supplies between different taxable persons acting as such, but of a single intra-Community transport, the determination of the transaction to which that transport should be ascribed, namely the first or second supply – given that that transaction therefore falls within the concept of an intra-Community supply for the purposes of the first subparagraph of Article 28c(A)(a) of the Sixth Directive, read in conjunction with Article 8(1)(a) and (b), the first subparagraph of Article 28a(1)(a), and Article 28b(A)(1) of that directive – must be conducted in the light of an overall assessment of all the circumstances of the case in order to establish which of those two supplies fulfils all the conditions relating to an intra-Community supply.
45. In circumstances such as those at issue in the main proceedings, in which the first person acquiring the goods, having obtained the right to dispose of the goods as owner in the Member State of the first supply, expresses his intention to transport those goods to another Member State and presents his VAT identification number attributed by that other State, the intra-Community transport should be ascribed to the first supply, on condition that the right to dispose of the goods as owner has been transferred to the second person acquiring the goods in the Member State of destination of the intra-Community transport. It is for the referring court to establish whether that condition has been fulfilled in the case pending before it.
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