Mecsek-Gabona Kft v Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága.
Date: 2012-09-06
29. It should be recalled at the outset that an intra-Community supply, which is the corollary of the intra-Community acquisition, is exempt from VAT if the conditions laid down in Article 138(1) of Directive 2006/112 are satisfied (see, to that effect, Teleos and Others , paragraph 28, and Case C-84/09 X  [2010] ECR I-11645, paragraph 26).
31. In accordance with settled case-law, the exemption of the intra-Community supply of goods becomes applicable only when the right to dispose of the goods as owner has been transferred to the purchaser and the vendor establishes that those goods have been dispatched or transported to another Member State and that, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply (see Teleos and Others , paragraph 42; Case C-184/05 Twoh International  [2007] ECR I-7897, paragraph 23; Case C-285/09 R.  [2010] ECR I-12605, paragraph 41; and Case C-430/09 Euro Tyre Holding  [2010] ECR I-13335, paragraph 29).
32. As regards, first, the transfer to the purchaser of the right to dispose of tangible property as owner, it should be noted that this is an inherent condition for any supply of goods, as defined in Article 14(1) of Directive 2006/112, and is insufficient in itself to establish the intra-Community nature of the transaction in question.
34. So far as concerns, secondly, the vendor’s obligation to establish that the goods have been dispatched or transported to a destination outside the Member State of supply, it should be borne in mind that that obligation must be considered in the specific context of the transitional tax arrangements applicable to intra-Community trade, established for the purpose of the abolition of internal frontiers on 1 January 1993 by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388 with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1) ( Teleos and Others , paragraph 21).
35. In that regard, the Court observed that, even if the intra-Community supply of goods is subject to the objective requirement that the goods must have physically left the territory of the Member State of supply, it has been difficult since the abolition of border controls between the Member States for the tax authorities to check whether or not the goods have physically left the territory of that Member State. As a result, it is principally on the basis of the evidence provided by taxable persons and of their statements that the national tax authorities are to carry out the necessary checks ( Teleos and Others , paragraph 44, and R. , paragraph 42).
36. It is also apparent from the case-law that, in the absence of any specific provision in Directive 2006/112 as to the evidence that taxable persons are required to provide in order to be granted the exemption from VAT, it is for the Member States to lay down, in accordance with Article 131 of Directive 2006/112, the conditions in which intra-Community supplies of goods will be exempt, with a view to ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. However, when they exercise their powers, Member States must observe the general principles of law which form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, Case C-146/05 Collée  [2007] ECR I-7861, paragraph 24; Twoh International , paragraph 25; X , paragraph 35; and R. , paragraphs 43 and 45).
39. According to the case-law of the Court, the principle of legal certainty requires that taxable persons be aware, before concluding a transaction, of their tax obligations ( Teleos and Others , paragraph 48 and the case-law cited).
41. On that point, the Court has observed that, where there appears to be no tangible evidence to substantiate the conclusion that the goods concerned have been transferred out of the territory of the Member State of supply, to oblige taxable persons to provide conclusive proof of this does not ensure the correct and straightforward application of the exemptions. On the contrary, that obligation places taxable persons in an uncertain situation as regards the possibility of applying the exemption to their intra-Community supplies or as regards the need to include VAT in the sale price (see, to that effect, Teleos and Others , paragraphs 49 and 51).
42. Furthermore, it should be pointed out that, where the purchaser has the right to dispose of the goods as owner in the Member State of supply and where that person assumes the obligation of transportation of those goods to the destination Member State, account must be taken of the fact that the evidence that the vendor might submit to the tax authorities depends essentially on information that it receives for those purposes from the purchaser (see, to that effect, Euro Tyre Holding , paragraph 37).
43. The Court accordingly found that, once the vendor has fulfilled his obligations relating to evidence of an intra-Community supply, where the contractual obligation to dispatch or to transport the goods out of the Member State of supply has not been satisfied by the purchaser, it is the latter which must be held liable for the VAT in that Member State (see, to that effect, Teleos and Others , paragraphs 66 and 67, and Euro Tyre Holding , paragraph 38).
47. According to settled case-law, the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by Directive 2006/112 (see Joined Cases C-487/01 and C-7/02 Gemeente Leusden and Holin Groep  [2004] ECR I-5337, paragraph 76; R. , paragraph 36; and Joined Cases C-80/11 and C-142/11 Mahagében and Dávid  [2012] ECR, paragraph 41 and the case-law cited) which can, in certain circumstances, justify stringent requirements as regards vendors’ obligations ( Teleos and Others , paragraphs 58 and 61).
48. Accordingly, it is not contrary to European Union law to require an operator 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 fraud ( Teleos and Others , paragraph 65, and Mahagében and Dávid , paragraph 54).
49. The Court found those factors to be important for the purposes of deciding whether the vendor can be obliged to account for the VAT after the event (see, to that effect, Teleos and Others , paragraph 66).
50. Consequently, in the event that the purchaser in the case before the referring court has committed tax fraud, it is justifiable to make the vendor’s right to exemption from VAT conditional upon its good faith.
53. In that regard, it should be borne in mind that, in proceedings brought under Article 267 TFEU, the Court has no jurisdiction to check or to assess the factual circumstances of the case before the referring court. It is therefore for the national court to carry out an overall assessment of all the facts and circumstances of the case in order to establish whether Mecsek-Gabona had acted in good faith and taken every step which could reasonably be asked of it to satisfy itself that the transaction which it had carried out had not resulted in its participation in tax fraud.
54. If the referring court were to reach the conclusion that the taxable person concerned knew or should have known that the transaction which it had carried out was part of a tax 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, there would be no entitlement to exemption from VAT.
55. In the light of all the foregoing considerations, the answer to Questions 1 and 2 is that Article 138(1) of Directive 2006/112 is to be interpreted as not precluding, in circumstances such as those of the case before the referring court, refusal to grant a vendor the right to the VAT exemption for an intra-Community supply, provided that it has been established, in the light of objective evidence, that the vendor has failed to fulfil its obligations as regards evidence, or that it knew or should have known that the transaction which it carried out was part of a tax fraud committed by the purchaser, and that it had not taken every reasonable step within its power to prevent its own participation in that fraud.
Question 3
57. Under the transitional arrangements for tax applicable to trade within the European Union, the purpose of which is the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place (see Teleos and Others , paragraph 36, and Joined Cases C-536/08 and C-539/08 X and fiscale eenheid Facet-Facet Trading  [2010] ECR I-3581, paragraph 30), the identification of taxable persons subject to VAT by means of an individual number facilitates the determination of the Member State in which that final consumption takes place.
59. However, neither the wording of Article 138(1) of Directive 2006/112 nor the case-law cited in paragraph 31 above mentions – as one of the substantive conditions, listed exhaustively, for an intra-Community supply – the obligation to have a VAT identification number.
60. Admittedly, a VAT identification number provides proof of the tax status of the taxable person for the purposes of the application of VAT and facilitates the tax audit of intra-Community transactions. However, it constitutes a formal requirement which cannot undermine the right of exemption from VAT where the substantive conditions for an intra-Community supply are satisfied (see, by analogy, in relation to the right of deduction, Case C-385/09 Nidera Handelscompagnie  [2010] ECR I-10385, paragraph 50, and Case C-438/09 Dankowski  [2010] ECR I-14009, paragraphs 33 and 47).
61. According to the case-law, a national measure which, in essence, makes the right of exemption for an intra-Community supply conditional upon compliance with formal obligations, without any account being taken of the substantive requirements, goes further than is necessary to ensure the correct levying and collection of the tax ( Collée , paragraph 29). The only exception is if non-compliance with such formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see, to that effect, Collée , paragraph 31).
63. However, given that the obligation to check the status of the taxable person must be discharged by the competent national authority before it assigns that person a VAT identification number, possible irregularities affecting the register cannot deprive a trader who has relied on the information entered in that register of the right of exemption from VAT to which it is entitled.