AREX CZ a.s. v Odvolací finanční ředitelství.
Date: 2018-12-19
34


In the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgments of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 39 and the case-law cited, and of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 39).
35


Consequently, even if, formally, the referring court limited its questions to the interpretation of Article 138(1) and (2)(b) of the VAT Directive, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in that regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, 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 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 40 and the case-law cited, and of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 40).
40


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 19 April 2018, Firma Hans Bühler, C‑580/16, EU:C:2018:261, paragraph 33).
44


Secondly, as regards the objectives of Article 2(1)(b)(iii) of the VAT Directive, it should be noted that that provision is part of the transitional arrangements for 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). The transitional arrangements are based on a new chargeable event for VAT purposes, 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. The arrangements are intended to ensure a clear demarcation of the sovereignty of the Member States in matters of taxation (see, to that effect, judgments of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 22 and 23 and the case-law cited, and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraphs 37 and 38).
45


Thus, any intra-Community acquisition taxed in the Member State of destination of the dispatch or transport of the goods (‘the Member State of destination’) leads to an exempt intra-Community supply in the Member State in which dispatch or transport of the goods began (hereinafter ‘the Member State of origin’). Therefore, the provisions relating to the intra-Community acquisition and to the intra-Community supply of goods must be given identical meaning and scope (see, to that effect, judgments of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 29, and of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraph 31 and the case-law cited).
61


As regards the first of those conditions, it should be recalled that the intra-Community acquisition of goods, within the meaning of Article 20 of the VAT Directive, is effected when the right to dispose of the goods as an owner has been transferred to the purchaser, when the supplier establishes that those goods have been dispatched or transported to another Member State and when, as a result of that dispatch or that transport, they have physically left the territory of the Member State of origin (see, to that effect, judgments of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraphs 27 and 42, and of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 27). The condition relating to the crossing of borders between Member States is a constituent element of intra-Community acquisitions (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 37).
63


Therefore, where several acquisitions for consideration give rise to a single intra-Community dispatch or intra-Community transport of goods, that dispatch or transport can only be ascribed to one of those acquisitions, which will alone be subject to VAT in the Member State of destination as an intra-Community acquisition provided that the other conditions laid down in Article 2(1) of the VAT Directive are met (see, by analogy, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 45).
64


Such an interpretation is necessary in order to achieve in a simple way the objective, pursued by the transitional arrangements for intra-Community transactions, of transferring, as is apparent from paragraph 44 of the present judgment, the tax revenue to the Member State in which final consumption of the goods supplied took place. That transfer occurs upon the single transaction giving rise to an intra-Community movement (see, by analogy, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 40).
70


In that regard, it follows from the case-law on the interpretation of Article 138(1) of the VAT Directive that, as regards transactions which form a chain of two successive supplies which gave rise to only a single intra-Community transport, the intra-Community transport can be ascribed to only one of the two supplies, which, therefore, will alone be exempt under that provision, and that, in order to determine which of the two supplies the intra-Community transport must be ascribed to, a global assessment of all the circumstances of the individual case must be made. In that assessment, it is appropriate in particular to determine when the second transfer of the right to dispose of the goods as an owner to the person finally acquiring the goods occurred. In the situation where the second transfer of that right, that is the second supply, occurred before the intra-Community transport took place, the intra-Community transport cannot be ascribed to the first supply to the first buyer (see, to that effect, judgment of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraphs 34 to 36 and the case-law cited).
72


Therefore, in order to determine to which of the acquisitions of the chain at issue in the main proceedings the intra-Community transport must be ascribed and which must, therefore, be classified as an intra-Community acquisition, it is for the referring court to carry out an overall assessment of all the specific circumstances of the individual case and to determine, in particular, when the transfer to Arex of the right to dispose of the goods as an owner occurred. In the event that the transfer took place before the intra-Community transport occurred, that transport must be ascribed to the acquisition by Arex and that acquisition must therefore be classified as an intra-Community acquisition.
75


With regard to the latter condition, it is apparent from the case-law of the Court that it is not restricted to the transfer in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner (see, to that effect, judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 24 and the case-law cited). A transfer of the power to dispose of tangible property as owner does not require that the party to whom the property is transferred must physically possess it or that it must be physically transported to and/or received by that party (order of 15 July 2015, Itales, C‑123/14, not published, EU:C:2015:511, paragraph 36).
77


Furthermore, the Court has already held that the chargeable event for VAT, by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled, is the supply or import of the goods, not the levying of excise duty on the latter (judgment of 14 July 2005, British American Tobacco and Newman Shipping, C‑435/03, EU:C:2005:464, paragraph 41).