Josef Plöckl v Finanzamt Schrobenhausen.
Date: 2016-10-20
29


It follows from this that, for the purposes of exemption from VAT, an intra-Community transfer, as referred to in Article 28a(5)(b), is to be treated, in particular, as an intra-Community supply in respect of which there is provision for exemption from VAT in the first subparagraph of Article 28c(A)(a) of the Sixth Directive. The conditions for the exemption of such an intra-Community transfer are apparent from the latter provision, there being no need for the transfer to have been made on behalf of another taxable person. The goods concerned must therefore be dispatched or transported by or on behalf of the taxable person out of the territory referred to in Article 3 of that directive but within the European Union, and that transfer must be effected for that taxable person or a non-taxable legal person acting as such in a Member State other than that of the departure of the dispatch or transport of the goods.
31


That being the case, it must be stated that transferring goods for the purposes of the taxable person’s undertaking, as stated in that provision, implies that the transfer is effected for that taxable person ‘acting as such’ within the meaning of the first subparagraph of Article 28c(A)(a) of the Sixth Directive. It has consistently been held that a taxable person acts in that capacity where he carries out transactions in the course of his taxable activity (see, to that effect, judgments of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 49, and of 8 November 2012, Profitube, C‑165/11, EU:C:2012:692, paragraph 52).
35


In that connection, the Court has held that, in the absence of any provision on that subject in the Sixth Directive, which provides only, in the first sentence of Article 28c(A), that Member States are to lay down the conditions subject to which they may exempt intra-Community supplies of goods, the question of the evidence which may be adduced by taxable persons in order to be exempted from VAT falls within the competence of the Member States (judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 42 and the case-law cited). That applies also to the intra-Community transfers referred to in Article 28c(A)(d).
36


In addition, Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof, gives Member States the option of adopting measures to ensure the correct collection of VAT and the prevention of tax evasion, provided that they do not go further than is necessary to attain those objectives. Such measures may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT (judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 44 and the case-law cited).
37


Such a national measure goes further than 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 (see, to that effect, judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraphs 29 and 30).
38


However, as regards the objective characteristics of an intra-Community transfer, it follows from paragraph 30 of the present judgment that if a transfer of goods meets the conditions laid down in the second subparagraph of Article 28a(5)(b) of the Sixth Directive, that transfer is exempt from VAT (see, by analogy, judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 30).
39


Accordingly, the principle of fiscal neutrality requires that an exemption from VAT be allowed if the substantive conditions are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see, by analogy, judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 31).
40


In that regard, the Court has held, in connection with an intra-Community supply, that an obligation to communicate the VAT identification number of the person acquiring the goods constitutes a formal requirement with regard to the right to exemption from VAT (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 51).
41


The same applies to an obligation to provide, in connection with an intra-Community transfer, the taxable person’s VAT identification number issued by the Member State of destination. While the provision of that number is proof that such a transfer has been effected for the purposes of that taxable person’s undertaking and, therefore, as is apparent from paragraph 31 of the present judgment, that that taxable person is acting as such in that Member State, proof of that capacity cannot, in every case, depend exclusively on the provision of that VAT identification number. Article 4(1) of the Sixth Directive, which defines ‘taxable person’, does not make that capacity subject to the possession by that person of a VAT identification number (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 49). The provision of that number is not, therefore, a substantive condition for the exemption from VAT of an intra-Community transfer.
43


As the Advocate General noted in point 81 of his Opinion, the case-law of the Court has, however, recognised two situations in which the failure to meet a formal requirement may result in the loss of entitlement to an exemption from VAT.
44


In the first place, the principle of fiscal neutrality cannot be invoked 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 (see, to that effect, judgments of 7 December 2010, R., C‑285/09, EU:C:2010:742, paragraph 54, and of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 46).
46


In the second place, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see, to that effect, judgments of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 31, and of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 46).
47


It follows, however, from the very condition to which that refusal to allow an exemption from VAT is subject, that, where the authority has the information necessary to establish that the substantive requirements have been satisfied, it cannot, in relation to the taxable person’s right to an exemption, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes (see, by analogy, judgment of 11 December 2014, Idexx Laboratories Italia, C‑590/13, EU:C:2014:2429, paragraph 40 and the case-law cited).
58


While Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof, allows Member States to adopt measures to ensure the correct collection of VAT and the prevention of evasion, such a refusal to allow an exemption would go further than is necessary to attain those objectives, since such an infringement of national law can be penalised by a fine proportionate to the seriousness of the infringement (see, by analogy, judgments of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraphs 62 and 63, and of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos, C‑516/14, EU:C:2016:690, paragraphs 47 and 48).