17.11.2012

Official Journal of the European Union

C 355/6

(Case C-273/11) (<span class="super">1</span>)

(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)

2012/C 355/09

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicant: Mecsek-Gabona Kft

Defendant: Nemzeti Adó- és Vámhivatal Dél-dunántúli Regionális Adó Főigazgatósága

Re:

Reference for a preliminary ruling — Baranya Megyei Bíróság — Interpretation of Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 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 may dispose as owner — Obligation on the taxable person to prove that the goods have been transported to another Member State and that, as a result of that transport, they have physically left the territory of the Member State of supply

Operative part of the judgment

1.Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/88/EU of 7 December 2010, is to be interpreted as not precluding, in circumstances such as those of the case before the referring court, 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.

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.

(<span class="super">1</span>) OJ C 269, 10.9.2011.