Case C‑273/11

Mecsek-Gabona Kft

v

Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

(Reference for a preliminary ruling
from the Baranya Megyei Bíróság)

(VAT — Directive 2006/112/EC — Article 138(1) — Conditions of exemption for intra-Community transactions characterised by the obligation on the purchaser to ensure, as from the time of their loading, the transport of the goods of which it disposes as owner — Obligation on the vendor to prove that the goods have physically left the territory of the Member State of supply — Removal from the register, with retroactive effect, of the customer’s VAT identification number)

Summary — Judgment of the Court (Second Chamber), 6 September 2012

1.        Harmonisation of fiscal legislation — Common system of value added tax — Exemption for intra-Community transactions — Refusal to grant the exemption to the vendor — Lawfulness — Conditions

(Council Directive 2006/112, Art. 138(1))

2.        Harmonisation of fiscal legislation — Common system of value added tax — Exemption for intra-Community transactions — Removal from the register, with retroactive effect, of the customer’s value added tax identification number — No impact on the entitlement to exemption

(Council Directive 2006/112, Art. 138(1))

1.        Where (i) the right to dispose of goods as owner is transferred, on the territory of that Member State, to a purchaser established in another Member State which, at the time of the transaction, has a value added tax (‘VAT’) identification number in that other Member State and which assumes responsibility for the transportation of those goods to the other Member State and (ii) the vendor satisfies itself that the goods sold have been picked up by the foreign-registered vehicles, and is in possession of the CMRs (Convention on the Contract for the International Carriage of Goods by Road) returned by the purchaser from the Member State of destination, as proof that the goods have been transported to a destination outside the Member State of the vendor, Article 138(1) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2010/88, is to be interpreted as not precluding refusal to grant a vendor the right to the VAT exemption for an intra-Community supply, provided that it has been established, on the basis of objective evidence, that the vendor has failed to fulfil its obligations as regards evidence, or that it knew or should have known that the transaction which it carried out was part of a tax fraud committed by the purchaser, and that it had not taken every reasonable step within its power to prevent its own participation in that fraud.

(see paras 28, 55, operative part 1)

2.        A vendor may not be refused the VAT exemption for an intra-Community supply, in accordance with Article 138(1) of Directive 2006/112, as amended by Directive 2010/88, solely on the ground that the tax authority of another Member State has removed the purchaser’s VAT identification number from the register, with retroactive effect from a date prior to the sale of the goods even though the number was removed after the goods had been supplied. Given that the obligation to check the status of the taxable person must be discharged by the competent national authority before it assigns that person a VAT identification number, possible irregularities affecting the register cannot deprive a trader who has relied on the information entered in that register of the right of exemption from VAT to which it is entitled.

(see paras 63, 65, operative part 2)