Firma Hans Bühler KG v Finanzamt de Graz-Stadt.
Date: 2018-04-19
33


According to settled case-law, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgments of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraph 50, and of 26 July 2017, Jafari, C‑646/16, EU:C:2017:586, paragraph 73).
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That interpretation is in line with the objectives of the VAT Directive and, more specifically, with the simplification measure provided for in Articles 42, 141, 197 and 265 of the VAT Directive. First, the purpose of 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 (OJ 1991 L 376, p. 1), is the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place (see, to that effect, judgment of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 37 and the case-law cited).
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Under the principle of fiscal neutrality, the failure of a taxable person to comply with the formal requirements of Article 42(b) of the VAT Directive cannot call into question the application of the Article 42 of that directive if the substantive conditions set out in Article 42(a) are otherwise satisfied (see, by analogy, judgments of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 46, and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 36). The refusal to apply Article 42 of the VAT Directive on such a ground could lead to double taxation in so far as the intermediary acquirer would also be taxed pursuant to the first paragraph of Article 41 of the VAT Directive, in the Member State which issued the VAT identification number which it used for that operation, while the final acquirer would also be taxed pursuant to Article 141(e) and Article 197 of the VAT Directive. In that regard, it should be added that, according to the case-law of the Court, Articles 41 and 42 of the VAT Directive are intended to ensure that the intra-Community acquisition in question is subject to VAT payable by the final customer, while avoiding double taxation of that transaction (see, to that effect, judgment of 22 April 2010, X and fiscale eenheid Facet-Facet Trading, C‑536/08 and C‑539/08, EU:C:2010:217, paragraph 35).
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In any event, a Member State cannot, without going beyond what is strictly necessary to ensure proper collection of the tax, provide for the possibility of rectifying recapitulative statements relating to triangular transactions while depriving that rectification of effect by refusing to the intermediary contractor the retroactive application of Article 42 of the VAT Directive, where that contractor provides proof that the substantive conditions have been met. However, in order to penalise the failure to comply with formal requirements, the Member States may consider penalties other than the refusal to apply Article 42 of the VAT Directive, such as the imposition of a fine or financial penalty proportionate to the seriousness of the offence (see, by analogy, judgment of 15 September 2016, Senatex, C‑518/14, EU:C:2016:691, paragraph 42).
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However, as the Advocate General observes in point 91 of his Opinion, there are two situations in which failure to comply with a formal requirement may justify excluding the application of Article 42 of the VAT Directive (see, by analogy, judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraphs 43, 44 and 46).
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First, non-compliance with a formal requirement may lead to refusal to apply Article 42 of the VAT Directive where a taxable person has intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT (see, by analogy, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 39 and the case-law cited).
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In the second place, non-compliance with a formal requirement may justify refusal to apply Article 42 of the VAT Directive if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see, by analogy, judgment of 9 February 2017, Euro Tyre, C‑24/16, EU:C:2017:106, paragraph 42 and the case-law cited).