Kreuzmayr GmbH v Finanzamt Linz.
Date: 2018-02-21
23


It should be noted that, according to 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 14 June 2017, Santogal M‑Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 31 and the case-law cited).
30


First of all, it is clear from settled case-law that, where two successive supplies of the same goods, effected for consideration between taxable persons acting as such, give rise to a single intra-Community transport of those goods, that transport can be ascribed to only one of the two supplies (see, to that effect, judgments of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 21 and the case-law cited, and of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraph 34).
32


The case-law of the Court goes on to specify that, in order to determine which of the two supplies the intra-Community transport should be ascribed to, it is necessary to undertake an overall assessment of all the specific circumstances of the case. In that assessment, it is necessary to determine, in particular, when the second transfer of the right to dispose of the goods as owner, to the person finally acquiring the goods, has taken place (see, to that effect, judgment of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraphs 35 and 36 and the case-law cited).
33


In a situation where the second transfer of the right to dispose of the goods as owner took place before the intra-Community transport occurs, the intra-Community transport cannot be ascribed to the first supply to the first person acquiring the goods (judgment of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraph 36 and the case-law cited).
34


Finally, it should be added that, in order to determine whether a supply may be classified as an ‘intra-Community supply’, account must be taken of the purchaser’s intentions at the time of the acquisition of the goods in question, provided that they are supported by objective evidence (see, to that effect, judgment of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 34 and the case-law cited).
40


It should be recalled that intra-Community supplies of goods are exempt, subject to the conditions laid down in Article 138(1) of the VAT Directive (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 25 and the case-law cited).
41


It should also be pointed out that the right to deduct provided for in Article 167 et seq. of the VAT Directive is an integral part of the VAT scheme and in principle may not be limited. That deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities (see, to that effect, judgment of 15 September 2016, Senatex, C‑518/14, EU:C:2016:691, paragraph 37 and the case-law cited).
42


Accordingly, the common system of VAT ensures that all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT, are taxed in a wholly neutral way (see, to that effect, judgment of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 43 and the case-law cited).
43


The right to deduct VAT can be exercised only in respect of taxes actually due and cannot be extended to overpaid input VAT (see, by analogy, judgment of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraphs 35 and 36). It follows that the exercise of that right does not extend to VAT which is due exclusively because it features on an invoice (see, to that effect, judgments of 13 December 1989, Genius, C‑342/87, EU:C:1989:635, paragraph 19, and of 6 November 2003, Karageorgou and Others, C‑78/02 to C‑80/02, EU:C:2003:604, paragraph 51).
44


Accordingly, if the second supply in a chain of two successive supplies involving a single intra-Community transport is an intra-Community supply, the person ultimately acquiring the goods cannot deduct, from the VAT which he is liable to pay, the amount of VAT wrongly paid for goods which were supplied to him in the context of an exempted intra-Community supply on the sole basis of the incorrect invoice provided by the supplier.
46


In that regard, it must be noted that the right to rely on the principle of the protection of legitimate expectations 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).
48


An operator in the situation of Kreuzmayr in the case in the main proceedings may, by contrast, request the repayment of the tax unduly paid to the operator which produced an incorrect invoice, in accordance with national law (see, to that effect, judgment of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 49 and the case-law cited).