Vogtländische Straßen-, Tief- und Rohrleitungsbau GmbH Rodewisch (VSTR) v Finanzamt Plauen.
Date: 2012-09-27
27. The first subparagraph of Article 28c(A)(a) of the Sixth Directive, which exempts intra-Community supplies from VAT, forms part of the transitional arrangements for the taxation of trade between Member States 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, inter alia, Case C-285/09 R [2010] ECR I-12605, paragraph 37).
28. 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, R , paragraph 38) and enables double taxation and, therefore, infringement of the principle of fiscal neutrality inherent in the common system of VAT to be avoided (see, inter alia, Case C-409/04 Teleos and Others  [2007] ECR I-7797, paragraph 25, and Case C-146/05 Collée  [2007] ECR I-7861, paragraph 23).
31. Although the questions asked by the referring court concern the capacity as a taxable person of the person acquiring the goods, the Court none the less considers it necessary to give the referring court some indications regarding the condition concerning transport. Since the dispute in the main proceedings concerns a transaction in which the goods sold were the object of two successive supplies, but only one intra-Community transport, the classification as an intra-Community supply of the first supply, between the branch of VSTR and Atlantic, which can be therefore exempted from VAT pursuant to the first subparagraph of Article 28c(A)(a) of the Sixth Directive, depends on whether, as the order for reference suggests, that transport can actually be ascribed to that first supply (see, to that effect, Case C-245/04 EMAG Handel Eder [2006] ECR I-3227, paragraph 45, and Case C-430/09 Euro Tyre Holding [2010] ECR I-13335, paragraph 21).
32. The answer to that question depends on an overall assessment of all the specific circumstances of the case (see Euro Tyre Holding , paragraph 27), and, in particular, on the determination of the moment at which the right to dispose of the goods as owner was transferred to the final recipient (see Euro Tyre Holding , paragraphs 31 to 35). In a situation where the second transfer of the power to dispose of the goods as owner took place before the intra-Community transport had occurred, the intra-Community transport could no longer be ascribed to the first supply to the first person acquiring the goods (see Euro Tyre Holding , paragraph 33).
34. As regards the criteria for assessment, the Court has held that, where the first person acquiring the goods has obtained the right to dispose of the goods as owner in the Member State of the first supply, expresses his intention to transport those goods to another Member State and presents his VAT identification number attributed by that other State, the intra-Community transport should be ascribed to the first supply, on condition that the right to dispose of the goods as owner has been transferred to the second person acquiring the goods in the Member State of destination of the intra-Community transport (see Euro Tyre Holding , paragraphs 44 and 45).
35. However, the Court has also made clear that such is not the case where, after the transfer to the person acquiring the goods of the right to dispose of the goods as owner, the supplier effecting the first supply had been informed by that person of the fact that the goods would be sold on to another taxable person before they left the Member State of supply ( Euro Tyre Holding , paragraph 36).
40. The condition set out in the first subparagraph of Article 28c(A)(a) of the Sixth Directive, according to which the person acquiring the goods must be a ‘taxable person … acting as such in [another] Member State’ does not, in itself, imply that the person acquiring the goods must trade under a VAT identification number in the course of the acquisition at issue.
42. In that connection, the Court has held that, in the absence of any provision on that subject in the Sixth Directive, which provides only, in the first sentence of Article 28c(A), that Member States are to lay down the conditions subject to which they may exempt intra-Community supplies of goods, the question of the evidence which may be adduced by taxable persons in order to be exempted from VAT falls within the competence of the Member States (see Collée , paragraph 24, and R , paragraph 43).
43. The Court has also held that it is for the supplier of the goods to furnish the proof that the conditions laid down for the application of the first subparagraph of Article 28c(A)(a) of the Sixth Directive, 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 R , paragraph 46).
44. Moreover, Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof, gives Member States the option of adopting measures to ensure the correct collection of the tax and the prevention of tax evasion, provided that they do not go further than is necessary to attain those objectives (see, to that effect, Collée , paragraph 26, and R , paragraph 45). Such measures may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT (see Teleos and Others , paragraph 46, and Collée , paragraph 26).
45. Thus, a measure which, in essence, makes the right of exemption from VAT in respect of an intra-Community supply 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, goes further than is necessary to ensure the correct collection of the tax (see Collée , paragraph 29).
46. The principle of fiscal neutrality requires that an exemption from VAT be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements, and it can only be otherwise if non-compliance with such formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (see Collée , paragraph 31), provided, however, that the supplier of the goods has not intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT. In such a situation, the Court has held that the principle of tax neutrality cannot legitimately be invoked by such a person (see R , paragraph 54).
49. However, that evidence cannot, in every case, depend exclusively on the provision of that number given that the definition of ‘taxable person’ set out in Article 4(1) of the Sixth Directive simply covers a person who independently carries out in any place any economic activity specified in paragraph 2 of that article, whatever the purpose or results of that activity, and does not make the capacity of taxable person subject to the possession by that person of a VAT identification number. It follows, moreover, from the case-law that a taxable person acts in that capacity where he carries out transactions in the course of his taxable activity (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others  [2006] ECR I-483, paragraph 42).
51. Thus, although a VAT identification number provides proof of the tax status of the taxable person and facilitates the tax audit of intra-Community transactions, it constitutes only a formal requirement which cannot undermine the right of exemption from VAT where the substantive conditions for an intra-Community supply are satisfied (see Case C-273/11 Mecsek-Gabona [2012] ECR, paragraph 60).
52. Consequently, although it is legitimate to require that the supplier act in good faith and take every measure which can reasonably be required of him to ensure that the transaction that he effects does not lead to his participation in tax evasion (see Euro Tyre Holding , paragraph 38), the Member States would be going further than the measures strictly necessary for the correct collection of tax if they refused to grant the VAT exemption for an intra-Community supply on the sole ground that the VAT identification number was not provided by the supplier, where that supplier, acting in good faith and having taken all the measures which can reasonably be required of him, is unable to provide that number but provides other information which is such as to demonstrate sufficiently that the person acquiring the goods is a taxable person acting as such in the transaction at issue.
55. As for the fact that the supplier presented the tax return of the person acquiring the goods concerning its intra-Community acquisition, it must be borne in mind that, as was held in paragraph 30 of the present judgment, apart from the requirements relating to the capacity of the taxable person, to the transfer of the right to dispose of goods as owner and to the physical movement of the goods from one Member State to another, no other conditions can be placed on the classification of a transaction as an intra-Community supply or acquisition of goods. Thus, in order to be exempt under the first subparagraph of Article 28c(A)(a) of the Sixth Directive, a supplier cannot be required to provide evidence of the taxation of the intra-Community acquisition of the goods in question.
56. Moreover, such a return cannot be considered to constitute, on its own, decisive evidence of the capacity as a taxable person of the person acquiring the goods and at the most can only constitute an indication (see Teleos and Others , paragraph 71, and Case C-184/05 Twoh International [2007] ECR I-7897, paragraph 37).