OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 6 April 2016 (1)
Case C‑24/15
Josef Plöckl
v
Finanzamt Schrobenhausen
(Request for a preliminary ruling
from the Finanzgericht München (Finance Court, Munich, Germany))
(Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive — Article 28c(A)(a) and (d) — Intra-Community transfer — Exemption — Possibility for the State of origin to refuse the exemption because of the failure to provide the VAT identification number issued by the State of destination)
I – Introduction
1. By order of 4 December 2014, received at the Court on 21 January 2015, the Finanzgericht München (Finance Court, Munich), has referred for a preliminary ruling a question concerning the interpretation of Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 2005/92/EC of 12 December 2005 (OJ 2005 L 345, p. 19) (‘the Sixth Directive’).
2. This question has arisen in the course of a dispute between Mr Plöckl and the Finanzamt Schrobenhausen (Schrobenhausen Tax Office) concerning the latter’s refusal to exempt the transfer by Mr Plöckl of a motor vehicle forming part of the assets of his undertaking, from the territory of the Federal Republic of Germany to that of the Kingdom of Spain, on the ground that Mr Plöckl did not provide to the Schrobenhausen Tax Office a value added tax (VAT) identification number issued by Spain.
II – Legal context
A – EU law
3. Article 411 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) provides for the Sixth Directive to be repealed.
4. Under Article 413 thereof, Directive 2006/112 entered into force on 1 January 2007. It is clear from the account of the facts given by the referring court that the transaction at issue in the dispute in the main proceedings, namely the transfer by Mr Plöckl of a car forming part of the assets of his undertaking from Germany to Spain, took place on 20 October 2006. Therefore, Directive 2006/112 had not entered into force at the material time in the main proceedings.
5. It is clear from the foregoing that it is necessary to apply the provisions of the Sixth Directive in the present case.
6. Article 5(1) of the Sixth Directive defines the concept of ‘supply of goods’ as the transfer of the right to dispose of tangible property as owner.
7. Article 22 of the Sixth Directive, in the version resulting from Article 28h thereof, imposes several obligations on persons liable for payment relating, inter alia, to the submission of returns, the keeping of accounts, invoicing, the payment of VAT and the submission of a recapitulative statement.
8. Under Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof:
‘Member States may impose other obligations which they deem necessary for the correct collection of [VAT] and for the prevention of evasion, subject to the requirement of equal treatment for domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’
9. Article 28a of the Sixth Directive is worded as follows:
‘1. The following shall also be subject to [VAT]:
(a) intra-Community acquisitions of goods for consideration within the territory of the country by a taxable person acting as such or by a non-taxable legal person where the vendor is a taxable person acting as such who is not eligible for the [VAT] exemption provided for in Article 24 and who is not covered by the arrangements laid down in the second sentence of Article 8(1)(a) or in Article 28b(B)(1).
…
3. “Intra-Community acquisition of goods” shall mean acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods by or on behalf of the vendor or the person acquiring the goods to a Member State other than that from which the goods are dispatched or transported.
…
5. The following shall be treated as supplies of goods effected for consideration:
(b) the transfer by a taxable person of goods from his undertaking to another Member State.
The following shall be regarded as having been transferred to another Member State: any tangible property dispatched or transported by or on behalf of the taxable person out of the territory defined in Article 3 but within the Community for the purposes of his undertaking, other than for the purposes of one of the following transactions:
…
6. The intra-Community acquisition of goods for consideration shall include the use by a taxable person for the purposes of his undertaking of goods dispatched or transported by or on behalf of that taxable person from another Member State within the territory of which the goods were produced, extracted, processed, purchased, acquired as defined in paragraph 1 or imported by the taxable person within the framework of his undertaking into that other Member State.’
10. Article 28c(A)(a) and (d) of the Sixth Directive is worded as follows:
‘Without prejudice to other Community provisions and subject to conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions provided for below and preventing any evasion, avoidance or abuse, Member States shall exempt:
(a) supplies of goods, as defined in Article 5, dispatched or transported by or on behalf of the vendor or the person acquiring the goods out of the territory referred to in Article 3 but within the Community, effected for another taxable person or a non-taxable legal person acting as such in a Member State other than that of the departure of the dispatch or transport of the goods.
…
(d) the supply of goods, within the meaning of Article 28a(5)(b), which benefit from the exemptions set out above if they have been made on behalf of another taxable person.’
11. The referring court also cites Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 (OJ 2003 L 264, p. 1), as amended by Council Regulation (EC) No 885/2004 of 26 April 2004 (OJ 2004 L 168, p. 1, ‘Regulation No 1798/2003’).
12. Contained in Chapter IV, entitled ‘Exchange of information without prior request’, Article 17 of Regulation No 1798/2003 states:
‘Without prejudice to the provisions of Chapters V and VI, the competent authority of each Member State shall, by automatic or structured automatic exchange, forward the information referred to in Article 1 to the competent authority of any other Member State concerned, in the following cases:
1. where taxation is deemed to take place in the Member State of destination and the effectiveness of the control system necessarily depends on the information provided by the Member State of origin;
2. where a Member State has grounds to believe that a breach of VAT legislation has been committed or is likely to have been committed in the other Member State;
3. where there is a risk of tax loss in the other Member State.’
13. Chapter V of Regulation No 1798/2003 is entitled ‘Storage and exchange of information specific to intra-Community transactions’. Within that chapter, Article 22(1) of that regulation provides:
‘Each Member State shall maintain an electronic database in which it shall store and process the information that it collects in accordance with Article 22(6)(b) in the version given in Article 28h of [the Sixth Directive].
…’
14. Articles 23 and 24 of Regulation No 1798/2003 govern the arrangements for the automatic communication of data stored in accordance with Article 22, which relate to VAT identification numbers in each Member State and the total value of intra-Community supplies of goods between two persons holding such numbers.
B – German law
15. In accordance with the first sentence of Paragraph 3(1a) of the Law on turnover tax (Umsatzsteuergesetz, ‘the UStG’) in the version in force during the year at issue, the transfer of an undertaking’s goods, by a trader, from the national territory to another part of the Community so that he may dispose of them, other than for use only on a temporary basis, is to be treated as a ‘supply for consideration’, even where the trader has imported the goods into national territory. In accordance with the second sentence of that provision, the trader is to be regarded as a supplier.
16. In accordance with Paragraph 4(1)(b) of the UStG, intra-Community supplies are to be exempt from tax.
17. Paragraph 6a of the UStG defines an intra-Community supply, inter alia, as follows:
‘…
2. The transfer of goods treated as a supply of goods shall also be regarded as an intra-Community supply …
3. The trader must demonstrate that the conditions laid down in subparagraphs 1 and 2 have been met …’
18. Paragraph 17c of the Regulation on the implementation of turnover tax (Umsatzsteuer-Durchführungsverordnung), in the version in force in the year at issue, imposes the following obligations on the supplier:
‘1. In the case of intra-Community supplies (Paragraph 6a(1) and (2) of the UStG), a trader to whom this regulation applies must provide accounting evidence that the conditions for exemption from tax have been complied with, including the turnover tax identification number of the person acquiring the goods. Compliance with those conditions must be clearly and easily verifiable from the accounts.
…
3. In the case of a transfer treated as a supply (Paragraph 6a(2) of the UStG), the trader shall indicate the following:
…
(2) the address and turnover tax identification number of the part of the undertaking located in the other Member State;
…’
III – The dispute in the main proceedings and the question referred for a preliminary ruling
19. In 2006, Mr Plöckl acquired a new car and allocated it to his sole-trader undertaking ‘HD Equipment’. On 20 October 2006, he dispatched that vehicle to a Spanish automotive dealer in order for it to be sold in Spain. On 11 July 2007, that vehicle was sold by the undertaking HD Equipment to the Spanish undertaking D SL (‘D’).
20. In his VAT returns, Mr Plöckl did not declare any amount in respect of those transactions for 2006 but did declare an exempt intra-Community supply for 2007. In his accounts, he indicated that the vehicle had been dispatched to Spain on 20 October 2006 (as attested by a CMR consignment note) and that it had been sold to D in 2007 (as attested by an invoice of 11 July 2007). Mr Plöckl did not provide a VAT identification number issued to his undertaking in Spain and did not declare the turnover in Spain. It is clear from the file sent by the referring court that the invoice forwarded by Mr Plöckl made reference to D’s VAT identification number.
21. In the context of an external audit, the Schrobenhausen Tax Office took the view that the conditions for exemption in respect of an intra-Community supply had not been satisfied in 2007, and issued a VAT amendment notice for 2007. During the subsequent legal proceedings before the Finanzgericht München (Finance Court, Munich), that court established that the vehicle was already in Spain in 2007, which led the Schrobenhausen Tax Office to annul that amendment notice.
22. Following that annulment, the Schrobenhausen Tax Office corrected the VAT calculation for 2006, taking the view that the transfer of the vehicle to Spain in 2006 was subject to VAT and was not exempt. Mr Plöckl raised an objection to that decision which the Schrobenhausen Tax Office dismissed as unfounded. According to that office, the transfer was not exempt from VAT since Mr Plöckl had not provided a VAT identification number issued to his undertaking in Spain and therefore had not produced the necessary accounting evidence. Mr Plöckl appealed against that decision.
23. The German tax authority did not inform the Spanish tax authority of the situation.
24. According to the referring court, it is common ground between the parties to the main proceedings that there is no question of any tax evasion.
25. The referring court is of the opinion that the transfer of the vehicle in 2006 to Spain is subject to VAT as a transfer by a taxable person of goods from his undertaking to another Member State in accordance with Article 28a(5)(b) of the Sixth Directive. The place of transfer is in Germany, in accordance with the first sentence of Article 8(1)(a) of that directive.
26. The referring court rules out the existence of an intra-Community supply to D in the absence of a sufficient temporal and material link between the transfer of the vehicle to Spain and its sale to D. In that regard, it points out that the sale took place several months after the transfer and that the person acquiring the vehicle was not yet known at the time of that transfer.
27. It is therefore of the view that it is for that court to determine whether the intra-Community transfer made by Mr Plöckl may benefit from the exemption provided for in Article 28c(A)(d) of the Sixth Directive, particularly in the light of the fact that he did not take all reasonable measures to provide a Spanish VAT identification number issued by the Spanish authorities.
28. The referring court is inclined to the view that an intra-Community transfer taking place in circumstances such as those described above must benefit from that exemption.
29. The referring court points out that, in accordance with Article 28c(A)(d) of the Sixth Directive, intra-Community transfers which benefit from the exemption provided for in Article 28c(A)(a) of that directive are exempt ‘if they have been made on behalf of another taxable person’.
30. The referring court notes that if the intra-Community transfer at issue in the main proceedings had been made on behalf of another taxable person, it would indeed have qualified for the exemption provided for in Article 28c(A)(a) of that directive. Mr Plöckl, a taxable person, dispatched the vehicle from Germany to Spain in order to continue to use it for business purposes.
31. The referring court adds that, except in the event of tax evasion, the Member States cannot impose conditions other than those laid down in Article 28c(A)(a) of the Sixth Directive, in particular as regards the corresponding taxation of the intra-Community acquisition of goods. In that regard, it cites the judgments in Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 70) and VSTR (C‑587/10, EU:C:2012:592, paragraphs 30 and 55).
32. Again according to that court, in the case in the main proceedings there is no specific evidence of tax evasion. Mr Plöckl was merely mistaken in law in regarding the transfer of the vehicle and the subsequent sale to D as together constituting an exempt intra-Community supply, which is reflected in the content of his VAT returns and his accounts. Admittedly Mr Plöckl should have declared an exempt intra-Community transfer in Germany and an intra-Community acquisition (Article 28a(6) of the Sixth Directive) that was taxable in Spain (Article 28b(A)(1) of that directive), which should have been followed by a supply of goods to D that was taxable in Spain. However, the absence of taxation of the intra-Community acquisition in Spain cannot constitute evasion since Mr Plöckl was entitled to deduct the VAT payable on the basis of that intra-Community acquisition.
33. It is in that context that the referring court questions whether it is possible for the tax authority to refuse to grant an exemption where the taxable person has not provided his customer’s VAT identification number (in the case of an intra-Community transfer, the part of his undertaking located in another Member State).
34. The answer to be given to that question depends, in large part, on the interpretation to be given to the judgment in VSTR (C‑587/10, EU:C:2012:592) in the context of an intra-Community transfer. According to the referring court, it may be inferred from paragraphs 44, 46 and 51 of that judgment that an exemption from VAT must be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements. It can only be otherwise where non-compliance with such formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied. Therefore, the formal requirement relating to the VAT identification number cannot undermine the right of exemption from VAT where the substantive requirements are satisfied, which is the case in the main proceedings.
35. In the light of those circumstances the Finanzgericht München (Finance Court, Munich) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of [the Sixth Directive] permit Member States to refuse to grant a tax exemption in respect of an intra-Community supply (in this instance, an intra-Community transfer) where, although the supplier has not taken all the measures that can reasonably be expected of him from the point of view of the formal requirements applicable to the recording of the [VAT] identification number, there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met?’
IV – Procedure before the Court
36. The request for a preliminary ruling was lodged at the Court Registry on 21 January 2015.
37. Written observations were submitted by the Schrobenhausen Tax Office, the Greek and Portuguese Governments and the European Commission.
38. The representatives of the Schrobenhausen Tax Office, the German Government and the Commission attended the hearing of 20 January 2016 in order to present their oral observations.
V – Analysis of the question referred
39. The referring court asks whether Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of the Sixth Directive must be interpreted as precluding the tax authority of the State of origin from refusing to exempt an intra-Community transfer on the ground that the taxable person has not provided a VAT identification number issued by the State of destination, where there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met.
40. An intra-Community transfer consists, for a taxable person, in transferring tangible property from his undertaking in the territory of one Member State to the territory of another Member State, for the purposes of his undertaking.
41. That type of transaction is, in principle, exempt in the State of origin and subject to VAT in the State of destination, in compliance with the principle of neutrality of VAT. The dispute in the main proceedings relates to the refusal by the State of origin (in the present case, the Federal Republic of Germany) to grant the exemption on the ground that the taxable person did not provide, to the authorities of that Member State, a VAT identification number issued by the State of destination (in the present case, the Kingdom of Spain).
42. I should like to emphasise three findings of fact made by the referring court. In the first place, that court considers that there is no specific evidence of tax evasion. In the second place, it adds that all the eligibility requirements for the exemption have been met, with the exception of the obligation to provide the VAT identification number issued by the State of destination. In the third place, it states that providing that number would not have helped to clarify the factual context, as that was already known. It is in the light of those three findings that I shall answer the question referred.
A – The arrangements applicable to intra-Community transfers
43. The arrangements for intra-Community transfers were created at the time of the introduction of the ‘transitional arrangements for the taxation of trade between Member States’ by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388 with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1).
44. Under those transitional arrangements, an intra-Community transfer is, on the one hand, treated as a supply of goods and exempt in the State of origin and, on the other hand, treated as an intra-Community acquisition subject to VAT in the State of destination. That treatment of intra-Community transfers is consistent with the objective of the transitional arrangements for the taxation of trade between Member States, which is to transfer the tax revenue to the Member State in which final consumption of the goods supplied takes place. (2)
1. Treating an intra-Community transfer as a supply of goods effected for consideration in the State of origin
45. An intra-Community transfer does not constitute a supply of goods under the definition set out in Article 5(1) of the Sixth Directive. Under that provision, a supply of goods requires the transfer of the right to dispose of tangible property as owner. In the context of an intra-Community transfer, the taxable person retains the power to dispose of the goods in question as owner, since those goods are merely transferred to another part of his undertaking located in another Member State.
46. That factor makes it possible to draw a distinction between intra-Community transfers and ‘ordinary’ intra-Community supplies. Where the right to dispose of tangible property as owner is transferred to another taxable person (or to a non-taxable legal person) acting as such in another Member State, the transaction must be classified as an ‘ordinary’ intra-Community supply. By contrast, where that right is not transferred, and the goods in question continue to form part of the assets of the undertaking of the taxable person concerned, the transaction constitutes an intra-Community transfer.
47. I therefore concur with the analysis of the referring court that the transactions carried out by Mr Plöckl must be classified not as an ‘ordinary’ intra-Community supply to D, but as an intra-Community transfer (effected via the dispatch of the vehicle to Spain) followed by a supply of goods to D (effected by the sale of the vehicle). The classification of intra-Community supply requires, in my view, the identity of the person acquiring the goods to be known when the goods are transported or dispatched to another Member State, which was not the case in the main proceedings according to the findings of the referring court. (3)
48. It is clear from the foregoing that, on the sole basis of the definition established in Article 5(1) of the Sixth Directive, an intra-Community transfer should not be subject to VAT.
49. However, Article 28a(5)(b) of the Sixth Directive treats an intra-Community transfer as a supply of goods effected for consideration.
50. The technique of treating transactions as equivalent has an important practical implication. An intra-Community transfer may be subject to VAT only where all of the conditions for such equivalent treatment laid down in Article 28a(5)(b) of the Sixth Directive have been met. The five conditions for such treatment (‘the five conditions’), as set out in that provision, are as follows:
– the transfer must be made by or on behalf of a taxable person;
– the transfer must relate to tangible property of the taxable person’s undertaking;
– the goods must be dispatched or transported out of the territory defined in Article 3 of that directive but within the European Union (that is to say from the territory of one Member State to the territory of another Member State);
– the goods must be transferred for the purposes of the undertaking; and
– the goods must not be transferred for the purposes of one of the transactions listed in that provision. (4)
51. I should add that, in accordance with the traditional rules on the allocation of the burden of proof, it is for the tax authorities to provide proof that the five conditions have been met before making an intra-Community transfer subject to VAT. It is true that the task of the tax authorities is facilitated by the imposition of reporting obligations on taxable persons, (5) but the fact remains that those authorities cannot make an intra-Community transfer subject to VAT without having established that all of the five conditions have been satisfied.
52. As regards the place of the intra-Community transfer that is to be treated as a supply of goods, it is necessary to apply the provisions governing the place of the supply of goods. In accordance with Article 8(1)(a) of the Sixth Directive, the place of that ‘assimilated’ intra-Community transfer is deemed to be in the territory of the State where the goods are at the time of dispatch or transport, namely the Federal Republic of Germany in the case in the main proceedings.
2. The exemption of the intra-Community transfer in the State of origin
53. Article 28c(A)(d) of the Sixth Directive provides that the Member States are to exempt the supply of goods within the meaning of Article 28a(5)(b) of that directive ‘which benefit from the exemptions set out above if they have been made on behalf of another taxable person’.
54. Logically speaking, it is reasonable to question the raison d’être of that provision extending the scope of the exemptions laid down in Article 28c(A)(a) to (c) of the Sixth Directive. Is the equivalence provided for in Article 28a(5)(b) of the Sixth Directive not sufficient to bring intra-Community transfers within the scope of those exemptions?
55. In my view, that extension provision was necessary because of the express reference to two distinct persons, namely the vendor and the person acquiring the goods, in each of those provisions. As an intra-Community transfer involves, by definition, only one person, it was necessary to extend their scope to intra-Community transfers which would have benefitted from the exemptions if they had been made ‘on behalf of another taxable person’.
56. Still to be examined are the substantive requirements which must be satisfied in order for an intra-Community transfer to benefit from the exemption laid down in Article 28c(A)(d) of the Sixth Directive. Those substantive requirements vary according to the goods which are the subject of the transaction, namely new means of transport, products subject to excise duty or other goods, which are respectively referred to in Article 28c(A)(b)(c) and (a) of the Sixth Directive.
57. Having regard to the wording of the question referred, the referring court considers that Article 28c(A)(a) of the Sixth Directive is relevant in the case in the main proceedings, that is to say the provision establishing the exemption for ‘other goods’. That choice implies that the vehicle transferred by Mr Plöckl was not a ‘new means of transport’ for the purposes of Article 28a(2) and Article 28c(A)(b) of that directive, which it is for the referring court to establish.
58. Consequently, it is necessary to identify the substantive requirements for the exemption laid down jointly in Article 28c(A)(a) and (d) of the Sixth Directive.
59. First, under Article 28c(A)(d) of that directive, the transaction in question must be an intra-Community transfer within the meaning of Article 28a(5)(b) of that directive. Therefore, the transaction must satisfy the five conditions identified in point 50 of this Opinion.
60. Secondly, the substantive requirements imposed by the first subparagraph of Article 28c(A)(a) of that directive are as follows:
– the goods must be dispatched or transported by or on behalf of the vendor or the person acquiring the goods out of the territory referred to in Article 3 but within the European Union (that is to say from the territory of one Member State to the territory of another Member State) and
– the supply must be effected for another taxable person or a non-taxable legal person acting as such in a Member State other than that of the departure of the dispatch or transport of the goods.
61. In my view, satisfying the five conditions identified in point 50 of this Opinion necessarily implies that the substantive requirements imposed by the first subparagraph of Article 28c(A)(a) of the Sixth Directive will be met. In particular, transferring goods ‘for the purposes of the undertaking’ implies that the transfer is effected for a taxable person ‘acting as such’. (6)
62. Therefore, the only additional substantive requirement imposed by Article 28c(A)(a) of the Sixth Directive lies in the exclusions set out in the second subparagraph of that provision. However, there is nothing in the file submitted to the Court to suggest that Mr Plöckl is covered by either of those exclusions. That provision was not, moreover, mentioned by the referring court in the question referred to the Court for a preliminary ruling.
63. It is clear from the foregoing that the substantive requirements which must be met by Mr Plöckl in the case in the main proceedings, in order to be eligible for the exemption laid down jointly in Article 28c(A)(a) and (d) of the Sixth Directive, have a scope equivalent to that of the five conditions established in Article 28a(5)(b) of that directive, as identified in point 50 of this Opinion. That factor has particular importance in the answer that I propose to the Court. (7)
3. Treating an intra-Community transfer as an intra-Community acquisition effected for consideration in the State of destination
64. Article 28a(3) of the Sixth Directive defines the intra-Community acquisition of goods as being the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to a Member State other than that from which the goods are dispatched or transported.
65. Under that definition, an intra-Community transfer cannot constitute an intra-Community acquisition in the State of destination of the goods, given that it does not involve the transfer to another person of the right to dispose of property as owner. (8)
66. Intra-Community transfers are, however, treated as intra-Community acquisitions effected for consideration by Article 28a(6) of the Sixth Directive.
67. As regards the place of the intra-Community transfer that is to be treated as an intra-Community acquisition, it is necessary to apply the provisions governing the place of intra-Community acquisitions. In accordance with Article 28b(A)(1) of the Sixth Directive, the place of that ‘assimilated’ intra-Community transfer is deemed to be in the territory of the State in which the goods are at the time when dispatch or transport to the person acquiring them ends, namely the Kingdom of Spain in the case in the main proceedings.
B – The obligation to provide the VAT identification number issued by the State of destination is a formal requirement for the purposes of the exemption of intra-Community transfers
68. The dispute in the main proceedings relates to the refusal by the Schrobenhausen Tax Office to exempt the transfer by Mr Plöckl of a motor vehicle from Germany to Spain, on the ground that he failed to inform the Schrobenhausen Tax Office of a VAT identification number issued by the Kingdom of Spain.
69. The Schrobenhausen Tax Office, the German Government and the Commission emphasised at the hearing the importance of the function of providing the VAT identification number issued by the State of destination for the purposes of monitoring intra-Community transactions. Given the considerable number of those transactions, it would be impossible, in practice, to monitor each of them individually. Consequently, the tax authorities of the Member States carry out automated monitoring of those transactions, which could not be set up if taxable persons were not required to provide the VAT identification number of the recipient in the State of destination.
70. The referring court and the Portuguese Government also referred to the system introduced by Regulation No 1798/2003. Article 17 of that regulation provides for the automatic exchange of information between tax authorities in three situations, namely, where taxation is deemed to take place in the Member State of destination and the effectiveness of the control system necessarily depends on the information provided by the Member State of origin; where a Member State has grounds to believe that a breach of VAT legislation has been committed, or is likely to have been committed in the other Member State; and where there is a risk of tax loss in the other Member State.
71. Furthermore, Articles 22 to 24 of Regulation No 1798/2003 introduce the electronic storage and automatic exchange of information as regards intra-Community transactions, relating to VAT identification numbers in each Member State and the total value of intra-Community supplies of goods between two persons holding such numbers.
72. As the case-law of the Court does not attach the same consequences to infringement of substantive requirements as it does to the infringement of formal requirements, (9) it is necessary to determine whether the obligation to provide a VAT identification number issued by the State of destination is a formal requirement or a substantive requirement for the purposes of the grant of the exemption at issue.
73. In their written and oral observations, the Schrobenhausen Tax Office and the German and Portuguese Governments argued that that obligation had to be classified not as a formal requirement but as a ‘substantive’ requirement, a ‘quasi-substantive’ requirement, or a ‘formal requirement having substantive effects’.
74. I take the view, however, that that obligation must be classified as a ‘formal requirement’ for the following reasons.
75. First, the methodology applied by the Court to identify the substantive requirements which make the right to a VAT exemption or deduction conditional in nature consists in an analysis of the wording of the provision of the Sixth Directive which establishes the right being claimed. (10)
76. In the present case, the exemption claimed by Mr Plöckl is laid down jointly in Article 28c(A)(a) and (d) of the Sixth Directive. The obligation to provide a VAT identification number issued by the State of destination is not referred to in the wording of either of those provisions. The substantive requirements that can be identified through an ‘analysis’ of the wording of those two provisions have been set out in points 59 and 60 of this Opinion.
77. Secondly, the obligation to identify oneself for VAT purposes (11) and the obligation to provide the VAT identification number (12) have consistently been held by the Court to be formal requirements as regards both the right to deduction and the exemption of intra-Community supplies. To my knowledge, there is no reason to revisit that case-law in the context of the exemption of intra-Community transfers.
78. It is clear from the foregoing that, by failing to provide a Spanish VAT identification number to the Schrobenhausen Tax Office, Mr Plöckl infringed a formal requirement imposed by the German legislature for the purposes of the grant of the exemption for intra-Community transfers. It is now necessary to determine the consequences of the infringement of such a formal requirement in the light of the principles established by the Court.
C – The case-law on non-compliance with formal requirements concerning VAT
79. Can the exemption of intra-Community transfers laid down in Article 28c(A)(a) and (d) of the Sixth Directive be refused by the tax authorities of the State of origin because of the infringement of a formal requirement, such as the obligation to provide a VAT identification number issued by the State of destination?
80. The case-law of the Court concerning VAT is characterised by a rejection of formalism. That rejection of formalism is expressed, in practice, by an obligation on the tax authorities of the Member States to grant a right where all the substantive requirements are satisfied, even where some formal requirements have not been met. (13)
81. There are, however, two exceptions to this rejection of formalism. First, that principle cannot be relied on by a taxable person who has intentionally participated in VAT fraud. (14) Secondly, it cannot be relied on by a taxable person to relieve himself of his obligation to provide proof that he has satisfied the substantive requirements. (15) I shall set out below the reasons why I take the view that those two exceptions are not applicable in circumstances such as those of the dispute in the main proceedings, and thus that the Schrobenhausen Tax Office should exempt the intra-Community transfer made by Mr Plöckl.
82. Having regard to certain written and oral observations submitted to the Court, I shall also endeavour to refute the existence of a hypothetical third exception to the principle of the rejection of formalism, which has its origin in the judgment in VSTR (C‑587/10, EU:C:2012:592) and according to which an exemption may be refused where the taxable person did not take all the measures which can reasonably be required of him to satisfy the formal requirements. (16)
1. The principle of the rejection of formalism established in the judgment in Collée (C‑146/05, EU:C:2007:549)
83. In the judgment in Collée (C‑146/05, EU:C:2007:549), which concerned the refusal to exempt an intra-Community supply on the ground that the accounting evidence of that supply had been belatedly produced, the Court identified the sources of the principle of the rejection of formalism in VAT matters as being, first, the objective nature of the terms defined by VAT legislation and, secondly, the principle of fiscal neutrality.
84. In the words of the Court, ‘a national measure which, in essence, makes the right of exemption 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 levying and collection of [VAT]’. (17)
85. According to the Court, ‘transactions should be taxed taking into account their objective characteristics. However, as regards determining whether a supply is of an intra-Community nature, it follows from the case-law of the Court that if a supply meets the conditions laid down in the first subparagraph of Article 28c(A)(a) of the Sixth Directive, no VAT is payable on such a supply’. (18)
86. Consequently, ‘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’. (19)
87. That principle, according to which the principle of fiscal neutrality requires the deduction or exemption of VAT to ‘be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements’ (‘the principle of the rejection of formalism’), has been applied on several occasions by the Court, both in connection with the right to deduction (20) and the exemption of intra-Community supplies. (21)
88. Furthermore, that principle has been applied to various formal requirements such as the obligation to identify oneself for VAT purposes, (22) the obligation to provide the VAT identification number of the co-contractor, (23) or the requirements to submit a return, (24) an invoice (25) and accounts (26) which comply with the Sixth Directive.
89. As regards the dispute in the main proceedings, the referring court found that Mr Plöckl meets all of the eligibility requirements for exemption of his intra-Community transfer, with the exception of the obligation to provide a VAT identification number issued by the State of destination. (27)
90. As that latter requirement is a formal requirement, it may be inferred from that finding that Mr Plöckl meets all the substantive requirements for that exemption. Therefore, the Schrobenhausen Tax Office was, in principle, required to exempt the intra-Community transfer carried out by Mr Plöckl.
91. The position would be different only if Mr Plöckl’s situation was covered by one of the two exceptions to the principle of the rejection of formalism. I take the view, however, that that is not the case for the following reasons.
2. The first exception: intentional participation in tax evasion
92. According to the case-law of the Court, the principle of the rejection of formalism must be excluded where the taxable person has ‘intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT’. The Court ruled that the principle of fiscal neutrality, which is at the heart of the rejection of formalism, (28) cannot legitimately be relied on by a taxable person who has intentionally participated in tax evasion. (29)
93. In that regard, it should be borne in mind that, in proceedings brought under Article 267 TFEU, the Court has no jurisdiction to check or to assess the factual circumstances of the case before the referring court. It is therefore for the referring court to carry out an overall assessment of all the facts and circumstances of the case in order to establish whether the taxable person had acted in good faith and taken every step which could reasonably be required of him to satisfy himself that the transaction which he had carried out had not resulted in his participation in tax fraud. (30)
94. In the present case, it is clear from the order for reference that it is common ground between the parties to the main proceedings that Mr Plöckl did not participate in tax evasion. According to the very wording of the question referred to the Court for a preliminary ruling, the referring court considers that there is no specific evidence of tax evasion. The referring court notes, in that regard, the following factors. First, Mr Plöckl communicated all the relevant information to the Schrobenhausen Tax Office, (31) and in particular the date of dispatch of the vehicle to Spain, the identity of the recipient of that dispatch (a dealer), the date of sale of the vehicle in Spain and the identity and VAT identification number in Spain of the person acquiring the goods (in the present case D). (32) Secondly, Mr Plöckl was, in any event, granted the deduction of the VAT payable on the intra-Community transfer in Spain, since that transfer was made for the purposes of the taxable supply of goods to D. (33)
95. It is clear from the foregoing that Mr Plöckl is not, in my view, covered by the first exception to the principle of the rejection of formalism.
3. The second exception: the obligation to provide proof that the substantive requirements have been satisfied
96. According to the case-law of the Court, the principle of the rejection of formalism must also be excluded where ‘non-compliance with such formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied’. That second exception to the principle of the rejection of formalism, which concerns the proof which the tax authorities of the Member States may require taxable persons to provide, was established by the Court with regard both to the right to deduction (34) and to the exemption of intra-Community supplies. (35)
97. That exception is consistent with the traditional principles governing the burden of proof, according to which it is for the person claiming a tax advantage to provide the proof that he satisfies the requirements established for that purpose. As regards exemption from tax of intra-Community supplies, the Court therefore stated 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 are fulfilled. (36)
98. The Court has, however, established an ‘exception to that exception’ which is of particular importance in the present case. According to the settled case-law of the Court, where the tax authority has the information necessary to establish that the substantive requirements have been satisfied, it cannot impose additional conditions which may have the effect of rendering the claimed right ineffective for practical purposes. (37)
99. In the dispute in the main proceedings, the provision of the VAT identification number issued in Spain, which was required by the Schrobenhausen Tax Office, could help to prove that Mr Plöckl had the status of taxable person in Spain. (38)
100. However, the arrangements for intra-Community transfers applicable in the case in the main proceedings have a particular feature in that regard. Given that, under Article 28a(5)(b) of the Sixth Directive, the dispatch or the transport of the goods ‘for the purposes of [the] undertaking’ of the taxable person constitutes a substantive condition for treating an intra-Community transfer as a supply of goods effected for consideration, and since the Schrobenhausen Tax Office noted the existence of such a taxable transaction, may that tax office still refuse the VAT exemption laid down in Article 28c(A)(d) of that directive on the ground that the taxable person did not provide proof that the transfer was carried out ‘for a taxable person acting as such’?
101. As I stated previously, the fact that a taxable person transfers goods ‘for the purposes of the undertaking’ (substantive requirement at the stage of treating the transfer as a supply of goods effected for consideration) implies that the transfer is effected on behalf of a taxable person ‘acting as such’, that is to say acting in the course of his taxable activity (substantive requirement at the stage of exempting the transfer). (39)
102. Therefore, given that the Schrobenhausen Tax Office decided to tax the intra-Community transfer made by Mr Plöckl, it should be inferred from this that the Schrobenhausen Tax Office had available to it all the information necessary to establish that the transfer had been made ‘for the purposes of the undertaking’, and therefore for a taxable person ‘acting as such’. It is of particular importance, in that regard, that the Schrobenhausen Tax Office had in its possession an invoice sent by Mr Plöckl establishing that the vehicle in question was sold to D. (40) I would add that the referring court also considered that it was an established fact that Mr Plöckl had dispatched the vehicle from Germany to Spain in order to continue to use it for business purposes. (41)
103. It follows, in my view, that the Schrobenhausen Tax Office had the information necessary to establish that the substantive requirements for the exemption at issue had been satisfied. Therefore, Mr Plöckl is not covered by the second exception to the principle of the rejection of formalism.
D – No exception introduced by the judgment in VSTR (C‑587/10, EU:C:2012:592) to the principle of the rejection of formalism
104. The Schrobenhausen Tax Office, the Portuguese Government and the Commission relied on certain passages from the judgment in VSTR (C‑587/10, EU:C:2012:592), and in particular paragraphs 52 and 58 thereof, to argue in favour of recognising what would, in my view, constitute a third exception to the principle of the rejection of formalism.
105. According to those parties, the Court permitted the tax authorities to deny a right claimed by a taxable person, although all the substantive requirements were satisfied, where that taxable person did not take all the measures which could reasonably have been required of him to satisfy a formal requirement. That argument is of particular importance in the present case, since the referring court has expressly questioned the Court on that point.
106. In my view, such a ‘narrow’ interpretation of the judgment in VSTR (C‑587/10, EU:C:2012:592) must be rejected for the following three reasons.
107. In the first place, I consider that that narrow interpretation arises from a misreading of the judgment in VSTR (C‑587/10, EU:C:2012:592). It will be recalled that that case concerned the refusal to grant the exemption laid down for intra-Community supplies because of the failure to comply with a formal requirement imposed on the supplier to provide the VAT identification number of the person acquiring the goods (see paragraph 39 of that judgment).
108. In paragraphs 40 to 47 of that judgment, the Court summarises its earlier case-law on the limitations on the power of the Member States to make the exemption of intra-Community supplies subject to compliance with formal requirements, including compliance with evidential requirements. In particular, paragraphs 45 to 46 of that judgment point out that the principle of VAT neutrality requires the rejection of formalism, except where the taxable person has intentionally participated in evasion. By contrast, the Court makes no reference to the existence of an exception to the rejection of formalism where the taxable person has failed to take all the measures which can reasonably be required of him to satisfy a formal requirement.
109. In paragraphs 48 to 53 of the judgment in VSTR (C‑587/10, EU:C:2012:592), the Court applies the principles mentioned previously to the specific circumstances of that case. In particular, in paragraph 51 of that judgment, the Court applies the principle of the rejection of formalism:
‘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.’
110. In paragraph 52 of that judgment, which is partially reproduced in paragraph 58 of the same judgment and which is the basis of the narrow interpretation proposed by the parties referred to in point 104 of this Opinion, the Court examines the relevance of the first exception to that principle, namely the participation of the taxable person in tax evasion, in the light of the specific circumstances of the case in the main proceedings:
‘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 …, 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’ (emphasis added).
111. In my view, the first part of the sentence refers to the principle constituting the first exception to the rejection of formalism, while the last part of the sentence, starting with the word ‘where’, applies that exception in concreto. The Court thus held that the supplier’s participation in evasion could be ruled out in the light of the fact that that supplier could not, in good faith, and having taken all the measures which could reasonably be required of him, provide the identification number of the person acquiring the goods. Paragraph 53 of that judgment supports that interpretation, since the Court concludes that ‘neither of the persons involved appears to have acted fraudulently’ (emphasis added).
112. Consequently, and contrary to the claims made by the Schrobenhausen Tax Office, the Portuguese Government and the Commission, paragraph 52 of the judgment in VSTR (C‑587/10, EU:C:2012:592) does not establish a third exception to the principle of the rejection of formalism, in accordance with which the taxable person would be required to take all the measures which could reasonably be required of him to satisfy all formal requirements, failing which he would not be granted the exemption. In my view, the Court has in that paragraph merely referred to and applied the first exception to that principle, in accordance with which the taxable person must 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, failing which he will not be granted the exemption.
113. In the second place, the existence of a third exception to the principle of the rejection of formalism finds no support in the case-law preceding or following the judgment in VSTR (C‑587/10, EU:C:2012:592). I would point out in that regard that the Court made no reference to the existence of that hypothetical third exception, based on the double criterion of ‘good faith’ and ‘measures which can reasonably be required of the taxable person’, in any of the judgments delivered after that judgment in which it reaffirmed the principle of the rejection of formalism. (42)
114. In the third and last place, the narrow interpretation advocated by the Schrobenhausen Tax Office, the Portuguese Government and the Commission cannot be reconciled with the solutions adopted by the Court in the judgments preceding and following the judgment in VSTR (C‑587/10, EU:C:2012:592). The Court never applied such a strict criterion in those judgments.
115. That comment may be illustrated by the case-law on infringement of the requirement to submit a return, an invoice and accounts which comply with VAT legislation, (43) of the obligation to identify oneself for VAT purposes (44) or of the obligation to provide the VAT identification number of the co-contractor. (45) Save in exceptional circumstances such as those which gave rise to the judgment in VSTR (C‑587/10, EU:C:2012:592, paragraph 53), a taxable person who takes ‘every measure which can reasonably be required of him’ will always be able to satisfy such formal requirements. However, the Court has ruled on several occasions that failure to comply with a formal requirement cannot result in the loss of the right to deduction or exemption where the substantive requirements are satisfied.
116. In my view, a criterion of such severity would reduce the scope of the principle of the rejection of formalism to cases of force majeure. Failure to comply with a formal requirement would still lead to the loss of the claimed right, except in circumstances in which it was impossible for the taxable person to satisfy that requirement despite adopting all the measures that can reasonably be expected of him. There is little doubt, in my view, that such an interpretation would prompt a radical departure from the settled case-law of the Court on the rejection of formalism in VAT matters.
117. It is clear from the foregoing that it is necessary to reject the narrow interpretation of the judgment in VSTR (C‑587/10, EU:C:2012:592) advocated by the Schrobenhausen Tax Office, the Portuguese Government and the Commission, which favoured a third exception to the principle of the rejection of formalism.
E – The impossibility of justifying the refusal to allow the exemption at issue on the basis of the infringement of other obligations imposed by or pursuant to the Sixth Directive
118. In the written and oral observations submitted to the Court, several obligations imposed by or pursuant to the Sixth Directive were relied on to justify the refusal to grant the exemption at issue because of the failure to provide a VAT identification number issued by the State of destination.
119. The first provision relied on in that context is the first sentence of Article 28c(A) of the Sixth Directive, according to which it is for the Member States to lay down the conditions subject to which they are to exempt intra-Community transactions ‘for the purpose of ensuring the correct and straightforward application of the exemptions provided for below and preventing any evasion, avoidance or abuse’.
120. It is clear from the settled case-law of the Court that, when they exercise the powers conferred by that provision, Member States must observe the general principles of law that form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality and the principle of protection of legitimate expectations. (46)
121. Furthermore, it is necessary to point out that that sentence has never been interpreted by the Court as allowing Member States to refuse to grant an exemption solely because of infringement of a formal requirement. More specifically, the Court has ruled on several occasions that the infringement of a formal requirement alone, and in particular the obligation to provide the identification number of the person acquiring the goods, could not result in a refusal to allow the exemption of intra-Community supplies laid down in Article 28c(A)(a) of the Sixth Directive. (47) I see no reason to revisit that case-law as regards intra-Community transfers.
122. A second provision relied on to justify the refusal to allow the exemption at issue, and which is the subject of the question referred for a preliminary ruling, is Article 22(8) of the Sixth Directive, in the version resulting from Article 28h thereof, according to which ‘Member States may impose other obligations which they deem necessary for the correct collection of [VAT] and for the prevention of evasion’.
123. I must again emphasise that that provision has never been interpreted as enabling the Member States to refuse to grant an exemption solely because of infringement of a formal requirement. According to the settled case-law of the Court, the measures which the Member States may adopt under that provision cannot undermine the fundamental principle of the neutrality of VAT. (48) Therefore, such measures cannot be used in such a way as to undermine the principle of the rejection of formalism, which stems from the principle of the neutrality of VAT. (49)
124. In other words, it is only where the taxable person has intentionally participated in tax evasion that the tax authorities may refuse to grant an exemption because of failure to comply with a formal requirement. That possibility is, however, ruled out by the referring court in the context of the dispute in the main proceedings. (50)
125. A third category of provisions of the Sixth Directive was relied on to justify the refusal to allow the exemption at issue, namely those which impose certain formal obligations on taxable persons such as the obligation to issue an invoice stating the identification numbers of the vendor and the person acquiring the goods (Article 22(3) of the Sixth Directive, in the version resulting from Article 28h thereof) or the obligation to draw up a recapitulative statement of the acquirers identified for VAT purposes to whom the taxable person has supplied goods under the conditions provided for in Article 28c(A)(a) and (d) of the Sixth Directive (laid down in Article 22(6)(b) of that directive, in the version resulting from Article 28h thereof).
126. Without calling into question the possibility of imposing a proportionate penalty in the event of infringement of those formal obligations, I see no reason why such an infringement might lead to the loss of the exemption provided for jointly in Article 28c(A)(a) and (d) of the Sixth Directive. In particular, the latter provisions do not make the granting of that exemption conditional on compliance with formal obligations established by other provisions of the Sixth Directive.
127. A fourth category of provisions relied on to justify the refusal to allow the exemption at issue relates to the obligation to declare the intra-Community transfer as an ‘assimilated’ intra-Community acquisition subject to VAT in the State of destination (namely the Kingdom of Spain).
128. In the dispute in the main proceedings, Mr Plöckl was apparently of the view that the transfer and the sale of the vehicle at issue in the main proceedings in Spain constituted an ordinary intra-Community supply as referred to in Article 28c(A)(a) of the Sixth Directive. Therefore, he had not declared an ‘assimilated’ intra-Community acquisition in the State of destination. In that context, it was for D, the person acquiring the vehicle, to declare an intra-Community acquisition.
129. It is clear, however, from the settled case-law that the exemption of an intra-Community supply cannot be refused in the State of origin on the ground that the corresponding intra-Community acquisition has not been declared in the State of destination. (51)
130. Consequently, in the dispute in the main proceedings, the Schrobenhausen Tax Office could not refuse to grant the exemption at issue on the ground that Mr Plöckl had not declared the corresponding intra-Community acquisition in Spain. It would be otherwise only if the taxable person had intentionally participated in tax evasion (52) — a possibility which, it will be recalled, was ruled out by the referring court in the dispute in the main proceedings. (53)
131. It is clear from the foregoing that the refusal to grant the exemption at issue because of the failure to provide a VAT identification number issued by the State of destination cannot be justified by an infringement of the obligations imposed by or pursuant to the abovementioned provisions of the Sixth Directive.
F – The possibility of imposing a penalty in the event of infringement of that obligation
132. It is clear from all of the foregoing considerations that the Schrobenhausen Tax Office could not refuse to exempt the intra-Community transfer at issue on the ground that Mr Plöckl had not complied with the obligation to provide a Spanish VAT identification number, since:
– that obligation is a formal requirement;
– there is no specific evidence of tax evasion; and
– the Schrobenhausen Tax Office had the necessary information to establish that the substantive requirements had been satisfied.
133. That conclusion seems to me, furthermore, to be in accordance with the principle of proportionality. The refusal to grant the exemption at issue, and the double taxation of the intra-Community transfer which could arise from that refusal, (54) constitutes, in my view, a disproportionate penalty, to the extent that, as suggested by the referring court, Mr Plöckl is alleged only to have made a mistake as regards the legal classification of the transaction at issue.
134. However, the obligation to exempt the intra-Community transfer at issue in the circumstances of the dispute in the main proceedings does not mean that the tax authorities of the State of origin cannot penalise the taxable person’s failure to provide an identification number issued by the State of destination.
135. I must emphasise, in that regard, that the approach I am advocating does not call into question the principle of the obligation on taxable persons to provide the VAT identification number issued by the State of destination in the event of an intra-Community transfer, having regard, in particular, to its importance for the purposes of monitoring intra-Community transactions. In reality, that approach is no different from that proposed by the Schrobenhausen Tax Office, the German and Portuguese Governments and the Commission as regards the penalty attached to that obligation.
136. I take the view, in the light of the case-law of the Court on the rejection of formalism, that infringement of the obligation to provide the VAT identification number issued by the State of destination cannot be penalised by a refusal to grant the exemption at issue, contrary to what is claimed by those parties.
137. However, there is little doubt in my mind that infringement of that obligation may incur an administrative penalty. It is clear from the settled case-law of the Court that a taxable person who fails to comply with the formal requirements laid down by or pursuant to the Sixth Directive may be subject to an administrative penalty, in accordance with the national measures transposing that directive into national law. (55)
138. In the absence of harmonisation of EU legislation in the field of penalties applicable in cases where conditions laid down by arrangements under that legislation are not complied with, Member States are empowered to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with EU law and its general principles, and consequently with the principle of proportionality. (56)
139. In order to assess whether the penalty at issue is consistent with the principle of proportionality, the nature and the degree of seriousness of the infringement which that penalty seeks to sanction must, inter alia, be taken into account, as also must the means of establishing the amount of that penalty. (57)
140. In accordance with those principles, the tax authorities of the Member States are free to impose an administrative penalty on taxable persons who fail to comply with a formal requirement such as the obligation to provide the identification number issued by the State of destination. The amount of that penalty may, inter alia, reflect the importance, emphasised at the hearing, of providing that number for the purposes of monitoring intra-Community transfers. (58) In the course of the hearing, the Schrobenhausen Tax Office accepted that German legislation does indeed provide that an administrative penalty may be imposed in the event of failure to comply with that obligation. In any event, it is for the referring court alone to make the final assessment as to whether such a penalty is proportionate. (59)
VI – Conclusion
141. Having regard to the foregoing, I propose that the Court answer the question referred by the Finanzgericht München (Finance Court, Munich) as follows:
Article 22(8), the first subparagraph of Article 28c(A)(a) and Article 28c(A)(d) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2005/92/EC of 12 December 2005, must be interpreted as precluding the tax authority of the State of origin from refusing to exempt an intra-Community transfer on the ground that the taxable person has not provided a VAT identification number issued by the State of destination, where there is no specific evidence of tax evasion, the goods have been moved to another Member State and the other conditions of exemption from tax are also met.