Milan Božičevič Ježovnik v Republika Slovenija.
Date: 2018-10-25
27


The referring court observes that in the judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraphs 56 and 57), the Court of Justice made a distinction between a taxable person’s liability to pay VAT and an importer’s liability to pay customs debts. The national court asks whether, in a case such as the one in the main proceedings, the importer is liable to pay VAT in the same way that he is liable for the customs debts, even if the customer was responsible for transporting the goods and the importer acted with the necessary diligence and in good faith.
34


Exemption from VAT on importation is thus subject to the importer subsequently making an intra-Community supply which is itself exempt under Article 138 of the VAT Directive, and it therefore depends on compliance with the substantive conditions laid down in that article (judgment of 20 June 2018, Enteco Baltic, C‑108/17, EU:C:2018:473, paragraph 47).
35


In that regard, it should be pointed out, in the first place, that, in the context of the exemption for intra-Community supplies pursuant to Article 138 of the VAT Directive, first, the Court has held that it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of him to satisfy himself that the transaction which he is carrying out does not result in his participation in tax evasion (see, to that effect, judgments of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 65, and of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 48 and the case-law cited). It follows that, if the taxable person concerned knew or ought to have known that the transaction which he carried out was involved in a tax evasion scheme of the purchaser and he did not take all reasonable steps in his power to prevent the evasion, he has to be refused the exemption (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 54 and the case-law cited).
36


Secondly, it is clear, in essence, from the case-law of the Court that a supplier’s liability to pay VAT after the event is assessed differently from an importer’s liability to pay customs duties. Thus, an importer is required to pay customs duties payable on the importation of goods in respect of which the exporter has committed a customs offence, including where the importer is acting in good faith and has played no part in that offence (see, to that effect, judgment of 17 July 1997, Pascoal & Filhos, C‑97/95, EU:C:1997:370, paragraph 61). By contrast, that case-law is not transposable to the assessment of whether the supplier, in an intra-Community transaction tainted by fraud, may be required to pay the VAT after the event (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraphs 54 to 57).
37


It follows that, in the context of the exemption for intra-Community supplies pursuant to Article 138 of the VAT Directive, a supplier who, in good faith and having taken every step which could reasonably be required of him, carried out a transaction which was, without his knowledge, connected with a fraud committed by the customer cannot be required to pay the VAT after the event (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraphs 65 to 67).
38


That case-law also applies to the scheme for exempting the importation of goods intended for intra-Community supply, laid down in Article 143(1)(d) of the VAT Directive (see, to that effect, judgment of 20 June 2018, Enteco Baltic, C‑108/17, EU:C:2018:473, paragraph 94).
43


In that regard, it should be pointed out that, in accordance with the Court’s settled case-law, to which, incidentally, the referring court refers, the principle of legal certainty precludes a Member State which has initially accepted the documents submitted by the vendor as evidence establishing entitlement to an exemption for a supply from subsequently requiring that vendor to account for the VAT on that supply, because of fraud by the customer of which the vendor had and could have had no knowledge (see, to that effect, judgments of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 50, and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 75).
44


However, the application of that case-law is limited to a situation where the taxable person acted in good faith and took every step which could reasonably be asked of him to avoid any participation in tax evasion. Accordingly, that case-law cannot be understood as meaning that the principle of legal certainty precludes the relevant national authorities from carrying out a further examination within the applicable time limits in order to ascertain whether the taxable person had not, and could not have, been aware of possible tax evasion (see, to that effect, judgment of 20 June 2018, Enteco Baltic, C‑108/17, EU:C:2018:473, paragraphs 97 and 98).
46


It is therefore for the referring court to carry out an overall assessment of all the facts and circumstances of the dispute in the main proceedings in order to determine whether Mr Božičevič Ježovnik acted in good faith and took every step which could reasonably be asked of him to satisfy himself that the transactions carried out would not result in his participation in tax evasion (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). In that regard, it should be pointed out that, as the European Commission submitted, the mere fact that the goods concerned were imported beforehand from a third country does not justify a more stringent approach to the liability of Mr Božičevič Ježovnik than that which would be incurred in a mere intra-Community transaction, as referred to in Article 138(1) of the VAT Directive.
47


In the event that the referring court reaches the conclusion that, in the light of objective evidence, the taxable person concerned knew, or should have known, that the supplies subsequent to the imports at issue in the main proceedings were involved in fraud committed by the customer and that he did not take all reasonable steps in his power to avoid participation in the fraud, there would be no entitlement to an exemption from import VAT (see, by analogy, judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 54, and of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 42).