Criminal proceedings against R.
Date: 2010-12-07
31. It must be observed in that regard that, under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case pending before it both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, to that effect, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59; Case C‑454/98 Schmeink & Cofreth and Strobel  [2000] ECR I‑6973, paragraph 37; and Case C‑97/09 Schmelz  [2010] ECR I‑0000, paragraph 28).
32. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25; Joined Cases C‑317/08 to C‑320/08 Alassini and Others  [2010] ECR I‑0000, paragraph 26; and Schmelz , paragraph 29).
36. In order to answer that question, it must be observed, as a preliminary point, that the prevention of potential tax evasion, avoidance and abuse is an objective which is recognised and encouraged by the Sixth Directive (see, in particular, Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep  [2004] ECR I‑5337, paragraph 76, and Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 71).
37. Intra-Community supplies of goods are exempt by virtue of the first subparagraph of Article 28c(A)(a) of the Sixth Directive, which forms part of the transitional arrangements for the taxation of trade between Member States as laid down in Title XVIa of that directive, the purpose of which is to transfer the tax revenue to the Member State in which final consumption of the goods supplied takes place (see Case C‑409/04 Teleos and Others  [2007] ECR I‑7797, paragraph 36; Case C‑146/05 Collée  [2007] ECR I‑7861, paragraph 22; Case C‑184/05 Twoh International  [2007] ECR I‑7897, paragraph 22; and Joined Cases C‑536/08 and C‑539/08 X and fiscale eenheid Facet-Facet Trading  [2010] ECR I‑0000, paragraph 30).
38. The mechanism established under those transitional arrangements consists of (i) exemption by the Member State of departure of the supply giving rise to the intra-Community dispatch or transport, in conjunction with the right to deduction or reimbursement of the VAT paid as input tax in that Member State, and (ii) taxation, by the Member State of destination, of the intra-Community acquisition. That mechanism thus makes it possible to delimit clearly the authority to tax of the Member States concerned (see, to that effect, Case C‑245/04 EMAG Handel Eder  [2006] ECR I‑3227, paragraphs 30 and 40).
39. Just like other expressions which define taxable transactions for the purposes of the Sixth Directive (see, in particular, Joined Cases C‑354/03, C‑355/03 and C‑484/03 Optigen and Others  [2006] ECR I‑483, paragraph 44, and Joined Cases C‑439/04 and C‑440/04 Kittel and Recolta Recycling  [2006] ECR I‑6161, paragraph 41), the meanings of ‘intra-Community supply’ and ‘intra-Community acquisition’ are objective in nature and apply without regard to the purpose or results of the transactions concerned ( Teleos and Others , paragraph 38).
41. The Court has interpreted that provision as meaning that 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 supplier establishes that those goods have been dispatched or transported to another Member State and that, as a result of that dispatch or that transport, the goods have physically left the territory of the Member State of supply (see Teleos and Others , paragraph 42, and Twoh International , paragraph 23).
42. The Court has also held that, since the abolition of border controls between the Member States, it has been difficult for the tax authorities to check whether the goods have or have not 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 Twoh International , paragraph 24).
43. However, given that none of the provisions of the Sixth Directive specifically lays down the evidence required to be furnished by taxable persons in order for them to be eligible for the exemption from VAT, that issue, as is apparent from the first part of the sentence in Article 28c(A) of the Sixth Directive, falls within the competence of the Member States (see Collée , paragraph 24).
45. Nevertheless, in exercising their powers, the Member States must observe the general principles of law that form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality and the principle of protection of legitimate expectations (see, to that effect, Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others  [1997] ECR I‑7281, paragraph 48; Case C‑384/04 Federation of Technological Industries and Others  [2006] ECR I‑4191, paragraphs 29 and 30; and Case C‑271/06 Netto Supermarkt  [2008] ECR I‑771, paragraph 18). As regards, in particular, the principle of proportionality, the Court has already held that, in accordance with that principle, the measures which the Member States may thus adopt must not go further than is necessary to attain the objectives of ensuring the correct levying and collection of the tax and the prevention of tax evasion (see, in particular, Case C‑188/09 Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski  [2010] ECR I‑0000, paragraph 26).
46. Moreover, it is apparent from the case-law of the Court that, in order to be eligible for the exemption under the first subparagraph of Article 28c(A)(a) of the Sixth Directive, it is for the supplier of the goods to furnish the proof that the conditions laid down for the application of that provision, including those imposed by the Member States for the purpose of ensuring the correct and straightforward application of the exemptions and for preventing any evasion, avoidance or abuse, are fulfilled (see, to that effect, Twoh International , paragraph 26).
48. The presentation of false invoices or false declarations and any other manipulation of evidence is liable to prevent the correct collection of the tax and, therefore, to compromise the proper functioning of the common system of VAT. Such actions are all the more serious when committed in the context of the transitional arrangements for the taxation of intra-Community transactions, which, as noted in paragraph 42 of the present judgment, operate on the basis of the evidence provided by taxable persons.
49. Therefore, EU law does not prevent Member States from treating the issuing of irregular invoices as amounting to tax evasion and from refusing to grant the exemption in such cases (see, to that effect, Schmeink & Cofreth and Strobel , paragraph 62, and order in Case C‑395/02 Transport Service  [2004] ECR I‑1991, paragraph 30).
51. It follows from this that, in circumstances such as those at issue in the main proceedings, the Member State of departure of the intra-Community supply may refuse to apply the exemption pursuant to its powers under the first part of the sentence in Article 28c(A) of the Sixth Directive and for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any evasion, avoidance or abuse.
52. However, with regard to particular cases in which there are genuine reasons to assume that the intra-Community acquisition corresponding to the supply at issue might escape payment of the VAT in the destination Member State, notwithstanding the mutual assistance of and administrative cooperation between the tax authorities of the Member States concerned, the Member State of departure is, in principle, required to refuse to grant the exemption to the supplier of the goods and to require that supplier to pay the tax subsequently in order to ensure that the transaction in question does not escape taxation altogether. In accordance with the fundamental principle of the common system of VAT, VAT applies to each transaction by way of production or distribution after deduction of the VAT directly borne by the various cost components (see, in particular, Transport Service , paragraphs 20 and 21; Optigen and Others , paragraph 54; and Collée , paragraph 22).
54. Furthermore, the finding in paragraph 51 of the present judgment is not called into question by the principles of fiscal neutrality or legal certainty, or by the principle of the protection of legitimate expectations. Those principles cannot legitimately be invoked by a taxable person who has intentionally participated in tax evasion and who has jeopardised the operation of the common system of VAT.