KrakVet Marek Batko sp. K. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága.
Date: 2020-06-18
42


It should be recalled that Title V of Directive 2006/112 contains specific provisions for determination of the place of taxable transactions, the object of which is, in accordance with, inter alia, recitals 17 and 62 of that directive, to avoid conflicts of jurisdiction which may result in double taxation or non-taxation (see, to that effect, judgment of 29 March 2007, Aktiebolaget NN, C‑111/05, EU:C:2007:195, paragraph 43).
46


Regulation No 904/2010 therefore enables the establishment of a common system of cooperation whereby the tax authorities of one Member State may submit a request to the tax authorities of another Member State, in particular where, in the light of the duty to cooperate in order to help ensure that VAT is correctly assessed, set out in recital 7 of that regulation, such a request may prove expedient, or even necessary (see, to that effect, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 57).
47


That may be so, in particular, where the tax authorities of a Member State know or should reasonably know that the tax authorities of another Member State have information which is useful, or even essential, for determining whether VAT is chargeable in the first Member State (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 58).
48


However, it must be stated that Regulation No 904/2010 is confined to enabling administrative cooperation for the purposes of exchanging information that may be necessary for the tax authorities of the Member States. That regulation does not therefore govern the powers of those authorities to carry out, in the light of such information, the classification of the transactions concerned under Directive 2006/112 (see, by analogy, judgment of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraphs 62 and 63 and the case-law cited).
50


Moreover, it must be stated that the correct application of Directive 2006/112 makes it possible to avoid double taxation and to ensure fiscal neutrality and, thus, to achieve the objectives recalled in paragraph 42 of the present judgment (see, to that effect, judgment of 26 July 2017, Toridas, C‑386/16, EU:C:2017:599, paragraph 43). Therefore, the existence in one or several other Member States of different approaches to that prevailing in the Member State concerned must not, in any event, lead to a misapplication of the provisions of that directive (see, to that effect, judgment of 5 July 2018, Marcandi, C‑544/16, EU:C:2018:540, paragraph 65).
51


Where they find that the same transaction has been the object of a different tax treatment in another Member State, the courts of a Member State before which a dispute raises issues involving an interpretation of provisions of EU law and requiring a decision by them have the power, or even — depending on whether there is a judicial remedy under national law against their decisions — the obligation, to refer a request for a preliminary ruling to the Court (judgment of 5 July 2018, Marcandi, C‑544/16, EU:C:2018:540, paragraphs 64 and 66).
52


That being so, if it transpires, as the case may be following a preliminary ruling from the Court, that VAT has already been overpaid in a Member State, it should be noted that, according to the Court’s settled case-law, the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court. The Member State concerned is therefore required, in principle, to repay charges levied in breach of EU law. The claim for repayment of overpaid VAT concerns the right to recovery of sums paid but not due which, according to settled case-law, helps to offset the consequences of the tax’s incompatibility with EU law by neutralising the economic burden which that tax has wrongly imposed on the trader who, in fact, has ultimately borne it (judgment of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraphs 29 and 30 and the case-law cited).
60


In that regard, while it constitutes a derogation from Article 32 of Directive 2006/112, Article 33 thereof seeks to ensure that, in accordance with the underlying logic of the provisions of that directive concerning the place where goods are supplied, the goods are taxed as far as possible at the place of consumption (see, to that effect, judgment of 13 March 2019, Srf konsulterna, C‑647/17, EU:C:2019:195, paragraph 29 and the case-law cited).
61


In order to determine what is to be understood by a dispatch or supply ‘by or on behalf of the supplier’, within the meaning of Article 33 of that directive, it must be borne in mind that consideration of the economic and commercial realities forms a fundamental criterion for the application of the common system of VAT (see, to that effect, judgment of 2 May 2019, Budimex, C‑224/18, EU:C:2019:347, paragraph 27 and the case-law cited).
66


As regards the importance of contractual terms in categorising a taxable transaction, it should be borne in mind that, in so far as the contractual position normally reflects the economic and commercial reality of the transactions, the relevant contractual terms constitute a factor to be taken into consideration (see, to that effect, judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 43).
67


It may, however, become apparent that, sometimes, certain contractual terms do not wholly reflect the economic and commercial reality of the transactions (judgment of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 44).
84


In that regard, it should be pointed out that preventing possible tax evasion, avoidance and abuse is an objective recognised and encouraged by that directive and that the effect of the principle that abusive practices are prohibited, which applies to the field of VAT, is to bar wholly artificial arrangements which do not reflect economic reality and are set up with the sole aim of obtaining a tax advantage (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 35 and the case-law cited).
85


It is settled case-law of the Court that, in the sphere of VAT, an abusive practice can be found to exist only if two conditions are satisfied, namely, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of that directive and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions and, secondly, it is apparent from a number of objective factors that the essential aim of the transactions concerned is solely to obtain that tax advantage (judgment of 10 July 2019, Kuršu zeme, C‑273/18, EU:C:2019:588, paragraph 35 and the case-law cited).
89


Secondly, the differences between the standard rates of VAT applied by the Member States result from the absence of full harmonisation by Directive 2006/112, which sets only the minimum rate. Accordingly, enjoyment in a Member State of a standard rate of VAT lower than the standard rate in force in another Member State cannot be regarded in itself as a tax advantage the grant of which is contrary to the objectives of that directive (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraphs 39 and 40).
90


As regards, in the second place, whether the essential aim of a transaction is solely to obtain that tax advantage, the Court has already held in the sphere of VAT that, where the taxable person has a choice between two transactions, he is not obliged to choose the one which involves paying the higher amount of VAT but, on the contrary, may choose to structure his business so as to limit his tax liability. Taxable persons are thus generally free to choose the organisational structures and the form of transactions which they consider to be most appropriate for their economic activities and for the purpose of limiting their tax burdens (judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 42).
95


It must be stated that none of the evidence submitted to the Court demonstrates that the transport company recommended by the supplier at issue in the main proceedings did not carry out a genuine economic activity, which was not limited to meeting certain logistical needs of that supplier and the delivery of that supplier’s goods. It therefore appears that that transport company engaged in activity in its own name and on its own behalf, under its own responsibility and at its own risk (see, to that effect, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 45).