Unitel Sp. z o.o. v Dyrektor Izby Skarbowej w Warszawie.
Date: 2019-10-17
19


It must be recalled in this connection, in the first place, that in accordance with Article 146(1)(a) and (b) of the VAT Directive the Member States are to exempt the supply of goods dispatched or transported to a destination outside the European Union by or on behalf of the vendor or by or on behalf of a customer. That provision should be read in conjunction with Article 14(1) of the directive, in accordance with which ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner (judgments of 19 December 2013, BDV Hungary Trading, C‑563/12, EU:C:2013:854, paragraph 23, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 22).
20


That exemption is intended to ensure that the supplies of goods concerned are taxed at the place of destination of those goods, namely the place where the exported products will be consumed (judgment of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 23 and the case-law cited).
21


As the Court has already observed on several occasions, it follows from the provisions mentioned in paragraph 19 above, and particularly from the word ‘dispatched’ in Article 146(1)(a) and (b) of the VAT Directive, that the export of goods is effected and the exemption of the supply of goods for export becomes applicable when the right to dispose of the goods as owner has been transferred to the person acquiring the goods, the supplier establishes that those goods have been dispatched or transported outside the European Union, and, as a result of that dispatch or that transport, the goods have physically left the territory of the European Union (see, to that effect, judgments of 19 December 2013, BDV Hungary Trading, C‑563/12, EU:C:2013:854, paragraph 24 and the case-law cited, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 24).
22


The Court has also already held that the concept of ‘supply of goods’ is objective in nature and that it applies without regard to the purpose or results of the transactions concerned and without its being necessary for the tax authorities to carry out inquiries to determine the intention of the taxable person in question or for them to take account of the intention of an operator other than that taxable person involved in the same chain of supply (see, to that effect, judgment of 21 November 2013, Dixons Retail, C‑494/12, EU:C:2013:758, paragraph 21 and the case-law cited).
26


However, in the second place, it is for the Member States to lay down, in accordance with Article 131 of the VAT Directive, the conditions under which they will exempt transactions on exportation for the purposes of ensuring the correct and straightforward application of the exemptions provided for in that directive and of preventing any possible evasion, avoidance or abuse. When they exercise their powers, Member States must nonetheless respect the general principles of law which form part of the legal order of the European Union, including, in particular, the principle of proportionality (see, to that effect, judgment of 28 February 2018, Pieńkowski, C‑307/16, EU:C:2018:124, paragraphs 32 and 33).
27


As regards that principle of proportionality, it must be recalled that a national measure goes beyond what is necessary to ensure the correct collection of the tax if, in essence, it makes the right of exemption from VAT subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied. Transactions should be taxed taking into account their objective characteristics (judgments of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 38, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 29).
28


When those substantive requirements have been satisfied, the principle of fiscal neutrality requires the VAT exemption to be granted even if certain formal requirements have been omitted by the taxable persons (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 39).
29


According to the Court’s case-law, there are only two situations in which the failure to meet a formal requirement may result in the loss of entitlement to an exemption from VAT (judgments of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 40, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 32).
30


First, a breach of a formal requirement may lead to the refusal of an exemption from VAT if the effect of the breach is to prevent the production of conclusive evidence that the substantive requirements have been satisfied (judgments of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 42, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 35).
33


Secondly, the principle of fiscal neutrality cannot be relied on for the purposes of an exemption from VAT by a taxable person who has intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT. 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 it were concluded that the taxable person concerned knew or ought to have known that the transaction he carried out was part of a fraud committed by the person acquiring the goods and that he has not taken every step which could reasonably be asked of him to prevent that fraud from being committed, he would have to be refused the exemption (judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 41, and of 28 March 2019, Vinš, C‑275/18, EU:C:2019:265, paragraph 33).
34


On the other hand, the supplier cannot be held liable for the payment of the VAT irrespective of his involvement in the tax evasion committed by the person acquiring the goods. It would clearly be disproportionate to hold a taxable person liable for the shortfall in tax caused by fraudulent acts of third parties over which he has no influence whatsoever (see, to that effect, judgment of 21 February 2008, Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 23).