BDV Hungary Trading Kft., in liquidation v Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága.
Date: 2013-12-19
23. In that regard, it should be noted that, under Article 146(1)(b) of Directive 2006/112, the Member States are to exempt supplies of goods dispatched or transported to a destination outside the European Union by or on behalf of a customer not established within that territory. That provision must be read in conjunction with Article 14(1) of that directive, according to which ‘supply of goods’ means the transfer of the right to dispose of tangible property as owner.
24. It is apparent from those provisions and, in particular, having regard to the term ‘dispatched’ in Article 146(1)(b) 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 and the supplier establishes that those goods have been dispatched or transported outside the European Union and that, as a result of that dispatch or that transport, they have physically left the territory of the European Union (see, with regard to intra-Community supplies, Case C‑409/04 Teleos and Others  [2007] ECR I‑7797, paragraph 42; Case C‑285/09 R  [2010] ECR I‑12605, paragraph 41; and Case C‑273/11 Mecsek-Gabona  [2012] ECR I‑0000, paragraphs 31 and 32 and the case-law cited).
29. In the exercise of the powers conferred on them by Article 131, the Member States must respect the general principles of law that form part of the legal order of the European Union, including, in particular, the principles of legal certainty and proportionality and the principle of protection of legitimate expectations (see, to that effect, Case C‑271/06 Netto Supermarkt  [2008] ECR I‑771, paragraph 18; R , paragraph 45 and the case-law cited).
30. In particular, as regards the principle of proportionality, the Court has already 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, in particular, Case C‑84/09 X  [2010] ECR I‑11645, paragraph 36 and the case-law cited).
33. In that regard, it must be borne in mind that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (Case C‑285/11 Bonik  [2012] ECR I‑0000, paragraph 35 and the case‑law cited). Therefore, the Court has held that the objective of preventing tax evasion sometimes justifies stringent requirements as regards suppliers’ obligations (see, to that effect, Teleos and Others , paragraph 58; and Netto Supermarkt , paragraph 22).
37. In that regard, it should be noted, first of all, that the fact that a supply of goods for export is taxed in accordance with legislation such as that at issue in the main proceedings where the goods concerned have not left the territory of the European Union within the period laid down in that legislation, does not in itself mean that that legislation should be regarded as disproportionate. In accordance with the fundamental principle of the common system of VAT, that tax applies to each transaction by way of production or distribution (see, inter alia, Case C‑146/05 Collée  [2007] ECR I‑7861, paragraph 22; and Bonik , paragraph 28). It follows that a supply of goods intended to be exported may, in principle, be taxed where the transaction in question does not satisfy, within a reasonable period laid down by the applicable national legislation, the conditions of Article 146(1)(b) of Directive 2006/112.
39. In that regard, it should be noted that national legislation, such as that at issue in the main proceedings, which makes export exemptions subject to a time-limit for dispatch with the aim, in particular, of combatting tax evasion and avoidance, without thereby allowing taxable persons to show, in order to benefit from that exemption, that the dispatch condition has been satisfied after expiry of that time‑limit, and without providing a right for the taxable person to have VAT already paid as a result of failing to comply with that time-limit reimbursed once he provided evidence that the goods had left the customs territory of the European Union, goes beyond what is necessary in order to attain that objective.
40. In circumstances where the conditions for export exemption laid down in Article 146(1)(b) of Directive 2006/112, in particular, the requirement that the goods concerned leave the customs territory of the European Union, are satisfied, no liability to pay VAT arises in respect of such a supply (see, by analogy, Collée , paragraph 30 and the case-law cited). In those circumstances, there no longer exists, in principle, a risk of tax evasion or loss of tax which could justify the transaction concerned being taxed.