Santogal M-Comércio e Reparação de Automóveis Lda v Autoridade Tributária e Aduaneira.
Date: 2017-06-14
28


It must be noted that the fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing that court with all the guidance on points of interpretation which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to those points in its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (see, to that effect, judgments of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 29, and of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited).
31


According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 18 December 2014, Schoenimport Italmoda Mariano Previti and Others, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 31 and the case-law cited).
37


As a preliminary point, it must be noted that the context of that question concerns the transitional arrangements relating to VAT applicable to intra-Community trade established by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1). Those arrangements 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 (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 22 and case-law cited).
38


Thus, the mechanism consisting, on the one hand, in an exemption, by the Member State of departure, of the supply giving rise to the intra-Community dispatch or transport, together with a right to deduction or reimbursement of the input VAT paid in that Member State and, on the other hand, in the 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 (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 23 and case-law cited).
39


As regards, in particular, the rules pertaining to the taxation of acquisitions of new means of transport, it can be seen from recital 11 of the VAT Directive, 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 (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 24).
41


That provision requires Member States to exempt from VAT supplies of new means of transport which satisfy the substantive conditions which are listed in that article (see, by analogy, judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 46) exhaustively (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 59).
43


Thus, and as noted by the Advocate General in points 38 and 39 of his Opinion, the exemption of intra-Community supplies of new means of transport becomes applicable only when the right to dispose of that means of transport as owner has been transferred to the purchaser, the vendor establishes that those goods have been dispatched or transported to another Member State and, as a result of that dispatch or that transport, that means of transport has physically left the territory of the Member State of supply (see, by analogy, judgments of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 27, and of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited).
47


Having regard to the particular nature of such a transaction, the Court has held that, 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. Factors likely to be of significance in that respect, other than the process of transporting the goods in question, are, inter alia, 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 (see to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 41 to 45 and 50).
50


Although it is clear from that provision, that the Member States are 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, when they exercise their powers, Member States must, however, 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 and fiscal neutrality (see, to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 35 and 37).
62


Next, the Court has held that it is for the vendor to furnish proof that the conditions laid down for the application of the intra-Community supply exemption, including those imposed by the Member States for the purpose of ensuring the correct and straightforward application of the exemptions and for preventing any evasion, avoidance or abuse, are fulfilled (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 43 and the case-law cited).
63


Finally, intra-Community transactions concerning new means of transport have a particular nature in that, inter alia, VAT relating to those transactions 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 and 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 (see, to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 42 and 43).
66


Indeed, first, in such circumstances, proof of the physical movement of that means of transport to its place of final use, which the vendor might be able to submit to the tax authorities, depends essentially on information that he receives for that purpose from the person acquiring the goods (see, by analogy, judgment of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 37).
67


Second, according to the case-law of the Court, the vendor cannot be required to provide evidence relating to the taxation of the intra-Community acquisition of the goods at issue in order to benefit from the exemption of the corresponding supply (judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 55). To make the exemption subject to the prior determination by the Member State of final use of the new means of transport would amount precisely to imposing such an obligation on the vendor. Indeed, that could impose on the vendor the burden of proving that definitive registration has been granted, which could occur, if it be the case, after payment of VAT by the purchaser.
71


In that regard, it must be noted that it is not contrary to EU law to require a trader to act in good faith and to take every step which could reasonably be asked of it to satisfy itself that the transaction which it is carrying out does not result in its participation in tax evasion (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 48 and the case-law cited). If the taxable person concerned knew or should have known that the transaction which it had carried out was part of a fraud committed by the purchaser and that the taxable person had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, that person should be refused a VAT exemption (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 54).
72


It is for the national court to verify, on the basis of an overall assessment of all the facts and circumstances of the case in the main proceedings, whether Santogal acted in good faith and took every step which could reasonably be asked of it to satisfy itself that the transaction carried out had not resulted in its participation in tax evasion (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). The Court may nevertheless provide it with all the guidance on points of interpretation which may be of assistance.
73


Thus, it is important to indicate that, when carrying out an intra-Community transaction concerning a new means of transport, the vendor cannot rely solely on the intention expressed by the purchaser to transport the goods to another Member State for the purposes of their final use. On the contrary, and as the Advocate General noted in point 63 of his Opinion, the vendor must ensure that the purchaser’s expressed intention is supported by objective evidence (see, by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 47).
74


It must be noted that, having regard to the evidence produced by the purchaser at the time of the sale, it could reasonably be considered that that purchaser resided in Spain and had undertaken in that State the steps necessary for the vehicle at issue in the main proceedings to be used there, be it under a specific regime. It is nevertheless for that court to verify whether Santogal displayed the diligence required to satisfy itself that the transaction carried out had not resulted in its participation in tax evasion. In this respect, it must be added that Santogal had to display a high degree of diligence, first, having regard to the value of the vehicle at issue and, second, given that, in the context of the acquisition of a new means of transport, an individual 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 (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 43). Furthermore, in the assessment to be carried out by the referring court, it is necessary to verify in particular whether, having regard to the evidence it possessed or could have possessed, Santogal was in a position to know that the temporary registration was intended merely for non-residents and that the purchaser had provided several addresses in Spain which could raise doubts regarding his actual residence.
75


Besides the vendor’s behaviour, the Portuguese authorities’ behaviour must also be taken into account. On the assumption that Santogal had presented documents in order to benefit from the exemption of the transaction at issue and those documents had been examined and accepted by the competent authority, which it is for the referring court to verify, it must be noted that the principle of legal certainty precludes a Member State which has accepted, initially, the documents submitted by the vendor as evidence establishing entitlement to the exemption from subsequently requiring that vendor to account for the VAT on that supply, because of the purchaser’s fraud, of which the vendor had and could have had no knowledge (see, by analogy, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 50).
76


Inasmuch as the referring court refers to the principle of the protection of legitimate expectations, it must be noted that, according to the Court’s settled case-law, the right to rely on that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him (judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 44 and the case-law cited). Nevertheless, a taxable person cannot have a legitimate expectation that a situation characterised by fraud will be maintained (see, by analogy, judgment of 29 April 2004, Gemeente Leusden and Holin Groep, C‑487/01 and C‑7/02, EU:C:2004:263, paragraph 77).