Notice for the OJ
Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), by order of that court dated 2 August 2004, in the case of The Queen on the application of 1) Teleos plc 2) Unique Distribution Ltd 3) Synectiv Ltd 4) New Communications Ltd 5) Quest Trading Company Ltd 6) Phones Interntional Ltd 7) AGM Associates Ltd 8) DVD Components Ltd 9) Fonecomp Ltd 10) Bulk GSM 11) Libratech Ltd 12) Rapid Marketing Services Ltd 13) Earthshine Ltd 14) Stardex (UK) Ltd against Commissioners of Customs and Excise.
(Case C-409/04)
Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court), dated 2 August 2004, which was received at the Court Registry on 24 September 2004, for a preliminary ruling in the case of The Queen on the application of 1) Teleos plc 2) Unique Distribution Ltd 3) Synectiv Ltd 4) New Communications Ltd 5) Quest Trading Company Ltd6) Phones Interntional Ltd 7) AGM Associates Ltd 8) DVD Components Ltd 9) Fonecomp Ltd 10) Bulk GSM 11) Libratech Ltd 12) Rapid Marketing Services Ltd 13) Earthshine Ltd 14) Stardex (UK) Ltd and Commissioners of Customs and Excise on the following questions:
1. In the relevant circumstances, is the term "despatched" in Article 28a(3)
1 (intra-Community acquisition of goods) to be understood as meaning that intra-Community acquisition takes place when:
a. the right to dispose of the goods as owner passes to the purchaser and the goods are supplied by the supplier by placing them at the disposal of the purchaser (who is registered for VAT in another Member State), on an ex works contract of sale whereby the purchaser assumes responsibility for removing the goods to a different Member State from that of supply, at a secure warehouse located in the supplier's Member State, and where the contractual documents and/or other documentary evidence state that the intention is that the goods should then be transported onwards towards a destination in another Member State, but the goods have not yet physically left the territory of the Member State of Supply; or
b. the right to dispose of the goods as owner passes to the purchaser and the goods commence, but do not necessarily complete, their journey towards a different Member State (in particular, if the goods have not yet physically left the territory of the Member State of supply); or
c. the right to dispose of the goods as owner has passed to the purchaser and the goods have physically left the territory of the Member State of supply on their journey towards a different Member State?
2. Is Article 28cA(a) to be interpreted as meaning that supplies of goods are exempt from VAT where:
- the goods are supplied to a purchaser who is registered for VAT in another Member State; and
- the purchaser contracts to purchase the goods on the basis that, after he has acquired the right to dispose of the goods as owner in the supplier's Member State, he will be responsible for transporting the goods from the supplier's Member State to a second Member State; and:
a. the right to dispose of the goods as owner has passed to the purchaser and the goods have been supplied by the supplier by placing them at the disposal of the purchaser, on an ex works contract of sale whereby the purchaser assumes responsibility for removing the goods to a different Member State from that of supply, at a secure warehouse located in the supplier's Member State, where the contractual documents and/or other documentary evidence state that the intention is that the goods should then be transported onwards towards a destination in another Member State, but the goods have not yet physically left the territory of the Member State of Supply; or
b. the right to dispose of the goods as owner has passed to the purchaser and the goods have commenced, but not necessarily completed, their journey towards a different Member State (in particular, the goods have not yet physically left the territory of the Member State of supply); or
c. the right to dispose of the goods as owner has passed to the purchaser and the goods have left the territory of the Member State of supply on their journey towards a second Member State; or
d. the right to dispose of the goods as owner has passed to the purchaser and the goods can also be shown to have actually arrived in the Member State of destination?
3. In the relevant circumstances, where a supplier acting in good faith has tendered to the competent authorities in his Member State, after submission of a repayment claim, objective evidence which at the time of its receipt apparently supported his right to exempt goods under Article 28cA(a) and the competent authorities initially accepted that evidence for the purpose of exemption, in what circumstances (if any) may the competent authorities in the Member State of supply nevertheless subsequently require the supplier to account for VAT on those goods where further evidence comes to their attention that either (a) casts doubt upon the validity of the earlier evidence or (b) demonstrates that the evidence submitted was materially false, but without the knowledge or the involvement of the supplier?
4. Is the answer to question 3 above affected by the fact that there was evidence that the purchaser made returns to the tax authorities in the Member State of destination, where those returns included as intra-Community acquisitions the purchases the subject matter of these claims, the purchaser entered an amount purporting to represent acquisition tax and also claimed the same amount as input tax in accordance with Article 17(2)(d) of the Sixth Directive?
____________1 - of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ L 145, 13.06.1977, p. 1).