Cartrans Spedition Srl v Direcţia Generală Regională a Finanţelor Publice Ploieşti - Administraţia Judeţeană a Finanţelor Publice Prahova and Direcţia Regională a Finanţelor Publice Bucureşti - Administraţia Fiscală pentru Contribuabili Mijlocii.
Date: 2018-11-08
29


Article 146(1)(e) of the VAT Directive, to be found in Chapter 6 of Title IX thereof, requires Members States to exempt from VAT the supply of services, including transport and ancillary transactions, where these are directly connected with the exportation of goods outside the European Union (see, to that effect, judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 20).
34


In the first place, as regards the exemption provided for in Article 146(1)(e) of the VAT Directive, it should be recalled at the outset that that exemption supplements the exemption set out in Article 146(1)(a) of that directive, and that it is intended, as is that latter exemption, to ensure that the supply of services concerned is taxed at the place of destination of those services, that is to say, the place where the exported products are consumed (judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 19).
35


Referring, in that regard, to its settled case-law, according to which VAT exemptions must be interpreted strictly since they constitute exceptions to the general principle that that tax is to be levied on each delivery of goods and each service supplied for consideration by a taxable person, the Court has held that it follows from the wording and the objective of Article 146(1)(e) of the VAT Directive, according to which the supply of services, including transport and ancillary transactions, are exempt from VAT when they are directly connected with the exportation of goods, that that provision must be interpreted as meaning that the existence of a direct connection entails not only that, by their subject matter, the supplies of services in question contribute to the actual performance of an exportation transaction, but also that those services are supplied directly to, as the case may be, the exporter or the consignee of the goods referred to in that provision (see, to that effect, judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraphs 22 and 23).
37


In that connection, it must be recalled that, in the absence of any 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 under which export transactions will be exempt, with a view to ensuring the correct and straightforward application of those exemptions and to 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, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27 and the case-law cited).
38


As regards the principle of proportionality, a national measure goes further than is necessary to ensure the correct collection of the tax if, in essence, it makes the right to 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 by taking into account their objective characteristics (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 34 and the case-law cited).
39


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 (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 35 and the case-law cited).
40


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 (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 38 and the case-law cited).
41


First, 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 jeopardising the operation of the common system of VAT (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 39 and the case-law cited). 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. 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 required of it to prevent that fraud from being committed, that person would have to be refused a VAT exemption (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 40 and the case-law cited).
42


Second, 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 (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 42 and the case-law cited).
55


As regards the principle of legal certainty, it should be recalled that that principle, the corollary of which is the principle of the protection of legitimate expectations and compliance with which, as has been noted in paragraph 37 of the present judgment, obliges Member States to lay down the conditions in regard to exemptions requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those who are subject to them (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 28 and the case-law cited).
56


That principle must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the obligations which such rules impose on them. It follows that it is necessary that taxable persons should be aware, before concluding a transaction, of their tax obligations (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 29 and the case-law cited).
57


The Court has also stated that the obligations imposed on taxable persons with regard to evidence must be determined in the light of the conditions expressly laid down in that regard by national law and in accordance with the general practice established in respect of similar transactions (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 30 and the case-law cited).
64


Such a crossing of borders and arrival of the goods in the third country of destination demonstrated by the TIR carnet constitute one of the elements of an export transaction which distinguishes it from a transaction which occurs within the European Union (see, by analogy, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 37).