Euro Tyre BV – Sucursal em Portugal v Autoridade Tributária e Aduaneira.
Date: 2017-02-09
23


It must be borne in mind at the outset that Article 138(1) of the VAT Directive requires Member States to exempt from VAT supplies of goods which satisfy the conditions listed in that article (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 46).
25


It is settled case-law that the VAT exemption in respect 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, the vendor establishes that those goods have been dispatched or transported to another Member State and, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited).
27


In that regard, it should be noted that, it is true that, under the transitional arrangements for tax applicable to trade within the European Union, the identification of taxable persons subject to VAT by means of an individual number also facilitates the determination of the Member State in which the final consumption of the goods delivered takes place (judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 57, and 14 March 2013, Ablessio, C‑527/11, EU:C:2013:168, paragraph 19). Article 214(1)(b) of the VAT Directive requires Member States to take all measures necessary to identify by means of an individual number, in particular, every taxable person or non-taxable legal person who makes intra-Community acquisitions.
29


Neither Article 138(1) of the VAT Directive nor the Court’s case-law, however, mentions — as one of the substantive conditions, listed exhaustively, for an intra-Community supply — the obligation for the purchaser to have a VAT identification number (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 59) nor, a fortiori, the obligation for the purchaser to be registered for the purpose of carrying out intra-Community transactions and to be registered in the VIES system.
30


Contrary to what the Portuguese and Polish Governments argued, in essence, before the Court, such obligations cannot be deduced from the condition that the purchaser must be a taxable person acting as such in a Member State other than that in which dispatch or transport of the goods began (see, by analogy, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 40).
31


The definition of ‘taxable person’ set out in Article 9(1) of the VAT Directive simply covers a person who independently carries out in any place an economic activity, whatever the purpose or results of that activity, and does not make the capacity of taxable person either subject to that person is possessing a VAT identification number (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 49 and the case-law cited), specific for carrying out intra-Community transactions, or subject to that person is being registered in the VIES system. It follows, moreover, from the Court’s case-law that a taxable person is acting in that capacity when performing transactions in the course of his taxable activity (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 49 and the case-law cited).
32


Accordingly, neither the acquisition by the purchaser of a VAT identification number valid for the purpose of carrying out intra-Community transactions nor the inclusion of that number in the VIES system constitute substantive conditions for exemption from VAT of an intra-Community supply. Those are merely formal requirements which cannot undermine the vendor’s entitlement to exemption from VAT where the substantive conditions for an intra-Community supply are satisfied (see, by analogy, judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 60; of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 51, and of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 40).
33


In that connection, it must be recalled that, in the absence of any specific provision in the VAT Directive as to the evidence that taxable persons are required to provide in order to be granted an exemption from VAT, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions in which intra-Community supplies of goods will be exempt, with a view to ensuring the correct and straightforward application of those exemptions 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 European Union legal order (see judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 36 and the case-law cited, and of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27).
34


According to the Court’s case-law, such a national measure goes further than 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 (judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 38 and the case-law cited).
35


As regards the objective characteristics of an intra-Community supply, it follows from paragraphs 23 to 25 above that, if a supply of goods satisfies the conditions laid down in Article 138(1) of the VAT Directive, that supply is exempt from VAT (see, to that effect, judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 37 and the case-law cited).
36


Accordingly, the principle of fiscal neutrality requires that an exemption from VAT be allowed if the substantive conditions are satisfied, even if the taxable person has failed to comply with some of the formal requirements (judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 39).
37


Accordingly, the authorities of a Member State cannot in principle refuse to grant an exemption from VAT for an intra-Community supply merely on the ground that the recipient is neither registered in the VIES system nor comes under a system of taxation on intra-Community acquisitions.
38


It must be noted that, according to Court’s case-law, however, 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 (see, to that effect, judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 43).
39


In the first place, the principle of fiscal neutrality cannot be invoked 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 (see judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 44 and the case-law cited).
40


It must be note pointed out 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 it to satisfy itself that the transaction which it is carrying out does not result in its participation in tax evasion (judgment of 6 September 2012, Mecsek-Gabona , C‑273/11, EU:C:2012:547, paragraph 48 and the case-law cited). If the taxable person concerned knew or should have known that the transaction which it had carried out was part of a fraud committed by the purchaser and that the taxable person had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, that person would have to be refused a VAT exemption (judgment of 6 September 2012, Mecsek-Gabona , C‑273/11, EU:C:2012:547, paragraph 54).
42


In the second place, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see judgment of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraph 46 and cited case-law).