Case C‑21/16

Euro Tyre BV — Sucursal em Portugal

v

Autoridade Tributária e Aduaneira

(Request for a preliminary rulingfrom the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa))

(Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Articles 131 and 138 — Preconditions for the exemption of an intra-Community supply — VAT Information Exchange System (VIES) — Purchaser’s failure to register — Refusal to grant the exemption — Whether permissible)

Summary — Judgment of the Court (Ninth Chamber), 9 February 2017

Harmonisation of fiscal legislation — Common system of value added tax — Exemption of an intra-Community supply — Vendor refused an exemption on the sole ground that the purchaser is not registered in the VIES system and does come under a system of taxation on intra-Community acquisitions of goods — No sound evidence pointing to the existence of fraud and the basic conditions for the exemption fulfilled — Not permissible

(Council Directive 2006/112, Arts 131 and 138(1))

Article 131 and Article 138(1) of the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as precluding the tax authority of a Member State from refusing to exempt an intra-Community supply from value added tax on the sole ground that, at the time of that supply, the purchaser domiciled in the territory of the Member State of destination exemption of an intra-Community supply who was in possession of a valid identification number for the purposes of value added tax in that Member State is neither registered in the VIES System nor comes under a system of taxation on intra-Community acquisitions of goods, where there is no sound evidence pointing to the existence of fraud and it is established that the basic conditions of the exemption are fulfilled. In that case, Article 138(1) of that directive, interpreted in the light of the principle of proportionality, also precludes such refusal where the vendor was aware of the circumstances of the situation of the purchaser with regard to the application of value added tax and was convinced that subsequently the purchaser would be registered as an intra-Community operator with retroactive effect.

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).

(see paras 32, 44, and operative part)