UAB „Enteco Baltic“ v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos.
Date: 2018-06-20
47


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, as the Advocate General observes in points 42, 50 and 68 of his Opinion.
50


In the absence of any provision on the point in the VAT Directive, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions under which imports followed by intra-Community supplies will be exempt, with a view to ensuring the correct and straightforward application of the exemption on importation provided for by the directive 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 EU legal order (see, to that effect, judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 36 and the case-law cited; of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27; and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 33).
51


The Court has previously held in this respect, in the context of the exemption of intra-Community supplies laid down by Article 138(1) of the VAT Directive, that, since that exemption depends on compliance with the substantive conditions set out exhaustively in that provision, which do not include an obligation for the purchaser to have a VAT identification number, Member States cannot in principle refuse to grant that exemption on the ground of failure to comply with a formal requirement, such as the purchaser’s VAT identification number, that may be laid down by the national law of a Member State (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 29 and 32).
59


It would be otherwise only if the importer intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT, or if the breach of a formal requirement has the effect of preventing the production of conclusive evidence that the substantive requirements have been satisfied (see, by analogy, judgments of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraphs 39, 43, 44 and 46, and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 36 to 39 and 42).
60


Moreover, it should be recalled that, in order to penalise non-compliance with formal requirements, the Member States may consider penalties other than the refusal of an exemption from VAT, such as the imposition of a fine or financial penalty proportionate to the seriousness of the infringement (see, to that effect, judgment of 19 April 2018, Firma Hans Bühler, C‑580/16, EU:C:2018:261, paragraph 52).
66


Second, it must be recalled that the exemption of an intra-Community supply of goods in accordance with Article 138(1) of the VAT Directive applies only where the right to dispose of the goods as owner has been transferred to the purchaser, the vendor shows that the goods have been dispatched or transported to another Member State and, as a result of the dispatch or transport, the goods have physically left the territory of the Member State from which they were dispatched or transported (judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited, and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 25).
67


It is for the person seeking to benefit from the VAT exemption, in other words the supplier of the goods, to prove that the conditions set out in Article 138(1) of the VAT Directive are satisfied (judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraph 26). However, in circumstances in which the right to dispose of the goods as owner is transferred to the purchaser in the territory of the Member State from which they are dispatched or transported and the purchaser dispatches or transports the goods out of the territory of that Member State, the evidence that the supplier might submit to the tax authorities depends essentially on the information that he receives for that purpose from the purchaser (judgments of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 37, and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 66).
68


Furthermore, it follows from Article 138(1) of the VAT Directive and the case-law of the Court that the condition concerning the dispatch or transport of the goods is satisfied where the goods have actually left the territory of the Member State from which they are dispatched or transported in order to be transferred to the territory of the Member State of destination (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraphs 27 and 33).
84


Like any supply of goods as defined in Article 14(1) of the VAT Directive, an intra-Community supply requires the transfer to the purchaser of the right to dispose of tangible property as owner (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 32).
85


According to settled case-law, ‘supply of goods’ within the meaning of the VAT Directive must be given an autonomous and uniform interpretation specific to EU law (see, to that effect, judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 22). In accordance with the purpose of the VAT Directive, which is designed inter alia to base the system of VAT on a uniform definition of taxable transactions (see, to that effect, judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe, C‑320/88, EU:C:1990:61, paragraph 8, and of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraph 25), that concept must have a uniform meaning in the context of that directive. Consequently, it cannot be interpreted differently in connection with the exemption on importation and in connection with the right to deduct input VAT referred to in Article 167 of the directive.
86


It is also apparent from the Court’s case-law that the concept of ‘supply of goods’ does not refer to the transfer of ownership 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 (judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 24 and the case-law cited).
88


On the other hand, where there is no transfer of the power to dispose of goods as owner, neither the transfer of goods merely for possession (see, to that effect, judgment of 14 July 2005, British American Tobacco and Newman Shipping, C‑435/03, EU:C:2005:464, paragraph 36) nor the physical movement of the goods concerned by a transporter from one place to another on behalf of other operators (see, to that effect, judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 25) can fall within the concept of ‘supply of goods’.
90


It is for the referring court to ascertain, in the light of all the facts available to it, whether that is so in the case before it (see, to that effect, judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe, C‑320/88, EU:C:1990:61, paragraph 13, and of 18 July 2013, Evita-K, C‑78/12, EU:C:2013:486, paragraph 34).
94


It should be recalled that, according to the Court’s case-law, 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. 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 would have to be refused the exemption (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraphs 48 and 54 and the case-law cited).
95


It is for the referring court to ascertain, on the basis of an overall assessment of all the facts and circumstances of the dispute in the main proceedings, whether Enteco Baltic acted in good faith and took all the steps which could reasonably be asked of it to satisfy itself that the import and supply transactions which it carried out did not result in its participation in tax evasion (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). The Court may nonetheless provide it with all the elements of interpretation of EU law that may be of use to it (judgment of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 72).
97


Should the referring court find that Enteco Baltic acted in good faith and took all the steps which could reasonably be asked of it to satisfy itself that the import and supply transactions which it carried out did not result in its participation in tax evasion, it must be recalled that, in accordance with settled case-law, 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 purchaser 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).
98


It is not apparent from the documents before the Court that those conditions are satisfied in the situation at issue in the main proceedings. Admittedly, according to those documents, on the basis of the evidence submitted by Enteco Baltic, the Tax Inspectorate concluded that the conditions for exemption of the intra-Community supplies were satisfied and that the company could not be accused of any negligence. However, it must be stressed that the Tax Inspectorate’s analysis, which in any event related only to some of the transactions at issue in the main proceedings, did not prevent the VTM from ascertaining, in a further check carried out within the applicable time limits, whether Enteco Baltic had not and could not have been aware of possible tax evasion by the purchaser with respect to all the transactions in question.
103


Moreover, in the context of intra-Community supplies, it follows from the Court’s case-law that, where the supplier is unable to produce the necessary evidence to show that the conditions for the exemption of an intra-Community supply are satisfied, the tax authorities of the Member State in which the dispatch or transport of the goods begins are not obliged to request information from the authorities of the Member State of destination on the basis of the provisions of Regulation No 1798/2003 on the system of exchange of information between the tax authorities of the Member States (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 37, and, by analogy, judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraphs 28, 34 and 38).
105


As may be seen in particular from recitals 3, 4 and 7 of Regulation No 904/2010, the objective of that regulation is to combat VAT fraud and tax evasion and to contribute to the correct application of VAT. To that end, the regulation, in accordance with the second paragraph of Article 1(1), lays down rules and procedures to enable the competent authorities of the Member States to cooperate and to exchange with each other any information that may help to effect a correct assessment of VAT, monitor the correct application of VAT, particularly on intra-Community transactions, and combat VAT fraud. In particular, Article 7(1) of the regulation provides for that purpose that, at the request of a national authority, the requested authority is to communicate any information that may help to effect a correct assessment of VAT. Article 54(1) of the regulation lays down limits to the exchange of information between the national authorities, who are not required to produce the information requested in all circumstances. Consequently, and in the absence of any express provision in the regulation to that effect, the regulation does not confer on a taxable person any specific right to request the transmission of information where he is unable himself to produce evidence capable of showing that he is entitled to an exemption from VAT (see, by analogy, judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraphs 30 to 34).