Case C‑414/17
AREX CZ a.s.
v
Odvolací finanční ředitelství
(Request for a preliminary ruling from the Nejvyšší správní soud)
(Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 2 (1) (b) (i) and (iii) — Article 3(1) — Intra-Community acquisitions of goods subject to excise duties — Article 138(1) and (2) (b) — Intra-Community supply of goods — Chain transactions with a single transport — Transaction to which the transport should be ascribed — Transport under an excise duty suspension arrangement — Impact on the classification of an intra-Community purchase)
Summary — Judgment of the Court (Fourth Chamber), 19 December 2018
Harmonisation of fiscal legislation — Common system of value added tax — Transitional arrangements for the taxation of trade between Member States — Intra-Community supply — Intra-Community acquisition of goods for consideration within the territory of a Member State — Goods subject to excise duty in the Member State of destination — Article 2(1) (b) (iii) of Directive 2006/112 — Scope — Acquisition of a taxable person whose other acquisitions are not subject to the tax under Article 3 (1) of Directive 2006/112 — Included
(Council Directive 2006/112, Art. 2(1)(b)(iii))
Harmonisation of fiscal legislation — Common system of value added tax — Transitional arrangements for the taxation of trade between Member States — Intra-Community supply — Intra-Community acquisition of goods for consideration within the territory of a Member State — Concept — Transport not attributable to the acquisition carried out by the trader liable for payment of the excise duty in the Member State of destination — Precluded
(Council Directive 2006/112, Art. 2(1)(b)(iii))
Harmonisation of fiscal legislation — Common system of value added tax — Transitional arrangements for the taxation of trade between Member States — Intra-Community supply — Intra-Community acquisition of goods for consideration within the territory of a Member State — Determination of the acquisition to which the transport should be ascribed — Goods transported under an excise duty suspension arrangement — Not a decisive factor
(Council Directive 2006/112, Art. 2(1)(b)(iii))
Article 2(1)(b)(iii) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it applies to intra-Community acquisitions of excise goods, in respect of which the excise duty is chargeable in the Member State of destination of the dispatch or transport of those goods, carried out by a taxable person whose other acquisitions are not subject to value added tax pursuant to Article 3(1) of that directive.
(see para. 56, operative part 1)
Article 2(1)(b)(iii) of Directive 2006/112 must be interpreted as meaning that, in a chain of successive transactions which gave rise only to a single intra-Community transport of excise goods under an excise duty suspension arrangement, the acquisition carried out by the trader liable for payment of the excise duty in the Member State of destination of the dispatch or transport of those goods cannot be classified as an intra-Community acquisition subject to value added tax under that provision, where that transport cannot be ascribed to that acquisition.
In that regard, it follows from the wording of Article 2(1)(b)(iii) of the VAT Directive, as set out in paragraph 41 of the present judgment, that the liability to pay VAT, pursuant to that provision, for intra-Community acquisitions of excise goods in the Member State of destination, is subject to three cumulative conditions.
It presupposes, first, that the transaction constitutes an intra-Community acquisition within the meaning of Article 20 of the VAT Directive; secondly, that the transaction concerns excise goods for which the excise duty is due in the Member State of destination; and, thirdly, that the transaction is carried out by a taxable person or a non-taxable legal person whose other acquisitions are not subject to VAT pursuant to Article 3(1) of that directive.
Only an acquisition that satisfies all those conditions may be classified as an intra-Community acquisition.
Therefore, where several acquisitions for consideration give rise to a single intra-Community dispatch or intra-Community transport of goods, that dispatch or transport can only be ascribed to one of those acquisitions, which will alone be subject to VAT in the Member State of destination as an intra-Community acquisition provided that the other conditions laid down in Article 2(1) of the VAT Directive are met (see, by analogy, judgment of 6 April 2006, EMAG Handel Eder, C‑245/04, EU:C:2006:232, paragraph 45).
(see paras 59, 60, 62, 63, 68, operative part 2)
Article 2 (1) (b) (i) of Directive 2006/112 must be interpreted as meaning that, where there is a chain of successive acquisitions concerning the same excise goods and which gave rise only to a single intra-Community transport of those goods under an excise duty suspension arrangement, the fact that those goods are transported under that arrangement does not constitute a decisive factor in determining to which acquisition the transport is to be ascribed for the purposes of applying value added tax under that provision.
(see para. 79, operative part 3)