C-108/17 Enteco Baltic

JUDGMENT OF THE COURT (Fourth Chamber)

20 June 2018 ( *1 )

(Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 143(1)(d) and Article 143(2) — Exemptions from VAT on importation — Importation followed by an intra-Community supply — Conditions — Evidence of dispatch or transport of the goods to another Member State — Transport under an excise duty suspension arrangement — Transfer to the purchaser of the right to dispose of goods as owner — Tax evasion — No obligation of the competent authority to help the taxable person collect the necessary information to show that the conditions for exemption are satisfied)

In Case C‑108/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania), made by decision of 15 February 2017, received at the Court on 3 March 2017, in the proceedings

UAB ‘Enteco Baltic’

v

Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos,

intervener:

Vilniaus teritorinė muitinė,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda, E. Juhász, K. Jürimäe (Rapporteur) and C. Lycourgos, Judges,

Advocate General: P. Mengozzi,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 25 January 2018,

after considering the observations submitted on behalf of:

UAB ‘Enteco Baltic’, by A. Medelienė, advokatė, and M. Bielskienė, advokato padėjėja,

the Lithuanian Government, by R. Krasuckaitė, D. Stepanienė, K. Dieninis and D. Kriaučiūnas, acting as Agents,

the European Commission, by L. Lozano Palacios and J. Jokubauskaitė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 March 2018,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 138, Article 143(1)(d) and Article 143(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2009/69/EC of 25 June 2009 (OJ 2009 L 175, p. 12), (‘the VAT Directive’), and of the principles of tax neutrality and the protection of legitimate expectations.

2The request has been made in proceedings between UAB ‘Enteco Baltic’ and the Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos (Customs Department at the Ministry of Finance, Lithuania) (‘the Customs Department’) concerning the exemption from value added tax (VAT) of imports of fuel from Belarus into Lithuania followed by dispatch or transport of the fuel to other Member States.

Legal context

EU law

The VAT Directive

3In accordance with Article 14(1) of the VAT Directive, ‘“supply of goods” shall mean the transfer of the right to dispose of tangible property as owner’.

4Under Article 131 of the VAT Directive:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other [provisions of EU law] and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

5Article 138(1) of the VAT Directive provides:

‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the [European Union], by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.’

6Directive 2009/69, the period for the transposition of which expired on 1 January 2011, added paragraph 2 to the original version of Article 143 of the VAT Directive. Since the transactions at issue in the main proceedings took place from 2010 to 2012, the two successive versions of Article 143 apply to the main proceedings.

7Recitals 3 to 5 of Directive 2009/69 state:

The importation of goods is exempt from [VAT] if followed by a supply or transfer of those goods to a taxable person in another Member State. The conditions under which that exemption is granted are laid down by Member States. Experience, however, shows that divergences in application are exploited by traders to avoid payment of VAT on goods imported under those circumstances.

In order to prevent that exploitation it is necessary to specify, for particular transactions, at Community level, a set of minimum conditions under which this exemption applies.

Since, for those reasons, the objective of this Directive, namely to address the problem of VAT evasion, cannot be sufficiently achieved by the Member States themselves and can therefore be better achieved at Community level, the Community may adopt measures …’

8Article 143 of the VAT Directive provides:

‘1. Member States shall exempt the following transactions:

…

the importation of goods dispatched or transported from a third territory or a third country into a Member State other than that in which the dispatch or transport of the goods ends, where the supply of such goods by the importer designated or recognised under Article 201 as liable for payment of VAT is exempt under Article 138;

…

2. The exemption provided for in paragraph 1(d) shall apply in cases when the importation of goods is followed by the supply of goods exempted under Article 138(1) and (2)(c) only if at the time of importation the importer has provided to the competent authorities of the Member State of importation at least the following information:

his VAT identification number issued in the Member State of importation or the VAT identification number of his tax representative, liable for payment of the VAT, issued in the Member State of importation;

the VAT identification number of the customer, to whom the goods are supplied in accordance with Article 138(1), issued in another Member State, …

the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State.

However, Member States may provide that the evidence referred to in point (c) be indicated to the competent authorities only upon request.’

9Article 167 of the VAT Directive provides:

‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’

Legislation on administrative cooperation and combating fraud in the field of VAT

10Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ 2010 L 268, p. 1) is a recasting of Council Regulation (EC) No 1798/2003 of 7 October 2003 on administrative cooperation in the field of [VAT] and repealing Regulation (EEC) No 218/92 (OJ 2003 L 264, p. 1).

11Regulation No 904/2010, as provided for in the first paragraph of Article 61, repealed Regulation No 1798/2003 with effect from 1 January 2012, and applies, in accordance with the second paragraph of Article 62, from that date. Having regard to the date of the exchange of information requested in the dispute in the main proceedings, Regulation No 904/2010 is relevant for the purposes of the present case.

12Recitals 3, 4 and 7 of Regulation No 904/2010 read as follows:

Tax evasion and tax avoidance extending across the frontiers of Member States lead to budget losses and violations of the principle of fair taxation. They are also liable to bring about distortions of capital movements and of the conditions of competition. They thus affect the operation of the internal market.

Combating VAT evasion calls for close cooperation between the competent authorities in each Member State responsible for the application of the provisions in that field.

…

For the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed. They must therefore not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State.’

13Article 1(1) and (2) of Regulation No 904/2010 provides:

‘1. This Regulation lays down the conditions under which the competent authorities in the Member States responsible for the application of the laws on VAT are to cooperate with each other and with the Commission to ensure compliance with those laws.

To that end, it lays down rules and procedures to enable the competent authorities of the Member States to cooperate and to exchange with each other any information that may help to effect a correct assessment of VAT, monitor the correct application of VAT, particularly on intra-Community transactions, and combat VAT fraud. In particular, it lays down rules and procedures for Member States to collect and exchange such information by electronic means.

2. This Regulation lays down the conditions under which the authorities referred to in paragraph 1 are to assist in the protection of VAT revenue in all the Member States.’

14In accordance with Article 7(1) of that regulation:

‘At the request of the requesting authority, the requested authority shall communicate the information referred to in Article 1, including any information relating to a specific case or cases.’

15Article 54(1) of that regulation provides:

‘The requested authority in one Member State shall provide a requesting authority in another Member State with the information referred to in Article 1 provided that:

the number and the nature of the requests for information made by the requesting authority within a specific period do not impose a disproportionate administrative burden on that requested authority;

that requesting authority has exhausted the usual sources of information which it could have used in the circumstances to obtain the information requested, without running the risk of jeopardising the achievement of the desired end.’

Legislation on excise duty

16Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) lays down in Chapter IV the rules governing the movement of excise goods under suspension of excise duty. That chapter comprises Articles 17 to 31 of the directive.

17In accordance with Article 21(1) to (3) of Directive 2008/118:

‘1. A movement of excise goods shall be considered to take place under a duty suspension arrangement only if it takes place under cover of an electronic administrative document processed in accordance with paragraphs 2 and 3.

2. For the purposes of paragraph 1 of this Article, the consignor shall submit a draft electronic administrative document to the competent authorities of the Member State of dispatch using the computerised system referred to in Article 1 of Decision No 1152/2003/EC (hereinafter “the computerised system”).

3. The competent authorities of the Member State of dispatch shall carry out an electronic verification of the data in the draft electronic administrative document.

Where these data are not valid, the consignor shall be informed thereof without delay.

Where these data are valid, the competent authorities of the Member State of dispatch shall assign to the document a unique administrative reference code and shall communicate it to the consignor.’

18Article 24 of that directive provides:

‘1. On receipt of excise goods at any of the destinations referred to in Article 17(1)(a)(i), (ii) or (iv) or in Article 17(2), the consignee shall, without delay and no later than five working days after the end of the movement, except in cases duly justified to the satisfaction of the competent authorities, submit a report of their receipt (hereinafter the “report of receipt”), using the computerised system.

…

3. The competent authorities of the Member State of destination shall carry out an electronic verification of the data in the report of receipt.

Where these data are not valid, the consignee shall be informed thereof without delay.

Where these data are valid, the competent authorities of the Member State of destination shall confirm to the consignee the registration of the report of receipt and send it to the competent authorities of the Member State of dispatch.

4. The competent authorities of the Member State of dispatch shall forward the report of receipt to the consignor. Where the places of dispatch and of destination are situated in the same Member State, the competent authorities of that Member State shall forward the report of receipt directly to the consignor.’

19Commission Regulation (EC) No 684/2009 of 24 July 2009 implementing Council Directive 2008/118 as regards the computerised procedures for the movement of excise goods under suspension of excise duty (OJ 2009 L 197, p. 24) lays down inter alia, in accordance with Article 1(a), rules on the structure and content of the electronic messages exchanged through the computerised system referred to in Article 21(2) of Directive 2008/118 for the purposes of Articles 21 to 25 of that directive.

20Under Article 3 of Regulation No 684/2009:

‘1. The draft electronic administrative document submitted in accordance with Article 21(2) of Directive [2008/118] and the electronic administrative document to which an administrative reference code has been assigned in accordance with the third subparagraph of Article 21(3) of that Directive shall comply with the requirements set out in Table 1 of Annex I to this Regulation.

2. The draft electronic administrative document shall be submitted no earlier than 7 days before the date indicated on that document as date of dispatch of the excise goods concerned.’

21Article 7 of that regulation provides:

‘The report of receipt submitted in accordance with Article 24 of Directive [2008/118] and the report of export submitted in accordance with Article 25 of that Directive, shall comply with the requirements set out in Table 6 of Annex I to this Regulation.’

Lithuanian law

22Article 143(1) and (2) of the VAT Directive was transposed in Lithuania by Article 35 of the Lietuvos Respublikos pridėtinės vertės mokesčio įstatymas (Law of the Republic of Lithuania on VAT, ‘the Law on VAT’). Article 35 appears in Title V of the Law on VAT, headed ‘Cases in which imported goods are not subject to VAT on importation’. That article provides:

‘1. Imported goods shall be exempt from import VAT if it is known at the time of importation that those goods are intended for export and will be transported to another Member State, and the supply of goods by the importer from the Republic of Lithuania to another Member State shall, by virtue of Chapter VI of this law, be subject to a zero rate of VAT.

2. The provisions of this article shall be applicable if the importer is registered as a VAT payer in the Republic of Lithuania and the goods are transported to another Member State within a period not exceeding one month from the day of the chargeable event referred to in Article 14(12) or (13) of this law. A longer time limit for transport of the goods may be set on objective grounds.

3. Detailed rules for the application of this article shall be laid down by the national customs department together with the central tax authority.’

23In accordance with Article 49(1) of the Law on VAT:

‘The zero rate of VAT shall apply to goods supplied to a person registered for the purposes of VAT in another Member State which are exported from the national territory to another Member State …’

24Article 56 of the Law on VAT, concerning ‘Evidence of applicability of a zero rate of VAT’, provides:

‘1. … A taxable person for the purposes of VAT who has applied the zero rate of VAT under Article 49 of this law must have evidence of exportation of the goods from the national territory and, where the zero rate of VAT is applied at the time of the supply of the goods to a person registered for the purposes of VAT in another Member State, evidence that the person to whom the goods were exported is subject to VAT in another Member State.

…

4. Notwithstanding the other provisions of this article, the tax authority shall have the right, in accordance with the detailed rules laid down by the Mokesčių administravimo įstatymas (Law on tax administration), to require the submission of additional evidence to allow an assessment of the basis for application of the zero rate of VAT. …

5. Notwithstanding the other provisions of this article, the tax authority has the right to collect, on its own initiative or through the competent law enforcement services, additional evidence to allow an assessment of the basis for application of the zero rate of VAT. …’

25The Rules on the exemption from import VAT of imported goods supplied to another Member State of the European Union (‘the Rules’) were approved by Order No 1B-439/VA-71 of the Customs Department and the head of the Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (National Tax Inspectorate at the Ministry of Finance of the Republic of Lithuania, Lithuania, ‘the Tax Inspectorate’) of 29 April 2004. Paragraph 4 of the Rules reads as follows:

‘Goods imported into the national territory shall be exempt from VAT if all the following conditions are met:

it is known at the time of importation that the goods are intended for export and will be transported to another Member State;

…’

26Under paragraph 7 of the Rules:

‘For customs inspection purposes, in addition to the other documents the following shall be provided with the customs import declaration:

…

documents establishing that the goods imported into the territory of the country are intended to be transported and will be transported to another Member State (transport documents or contract, in particular).’

27The Rules were amended by Order No 1B-773/VA-119 of 28 December 2010 of the director of the Customs Department and the head of the Tax Inspectorate, which entered into force on 1 January 2011. That order inserted paragraph 71 in the Rules, under which:

‘The importer must without delay inform in writing the regional customs service if the place of storage of the goods or their purchaser changes (the taxable person of the other Member State and/or the Member State to which the goods are supplied as specified in the documents provided for customs inspection purposes), by presenting new evidence explaining the reasons for the changes and enclosing copies of the supporting documents.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

28Enteco Baltic is a company established in Lithuania. It operates in the wholesale fuel trade.

29In the period at issue in the main proceedings, from 2010 to 2012, Enteco Baltic imported into Lithuania fuel from Belarus. That fuel was placed under the arrangement known as ‘customs procedure 42’, which allows goods to be released for free circulation without being subject to VAT on importation. In the import declarations, Enteco Baltic specified the VAT identification numbers of purchasers in another Member State to whom it intended to supply the goods. It stored the goods in warehouses for goods subject to excise duty owned by other Lithuanian undertakings.

30Enteco Baltic sold the fuel to companies established in Poland, Slovakia and Hungary on the basis of written contracts and individual orders. The contracts provided for ‘ex-works’ supply. Under those contracts, Enteco Baltic was thus obliged only to hand over the fuel to the purchasers in Lithuania, and they were responsible for the continuation of its transport to the Member State of destination. Both the individual orders of the purchasers and the invoices issued by Enteco Baltic were usually sent by electronic mail.

31For transport purposes, the goods were the subject of electronic transport documents for goods subject to excise duties and CMR consignment notes (consignment notes on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol of 5 July 1978). The notes were completed by the responsible employees of the dispatching tax warehouse and specified inter alia the place of dispatch of the goods (that is, the dispatching tax warehouse), the purchaser and the place of receipt of the goods (that is, the receiving tax warehouse).

32After delivery of the goods to the receiving tax warehouses in Poland, Enteco Baltic received an electronic confirmation of the supply of the goods (‘e-ROR confirmation’). It also received the CMR consignment notes confirming the receipt of the goods by the receiving tax warehouses.

33Enteco Baltic sometimes sold goods to taxable persons in other Member States, different from those whose identification numbers were shown on the import declarations. Information on those taxable persons, including their VAT identification numbers, was always provided to the Tax Inspectorate in the monthly reports on the supply of goods to other Member States.

34In 2012 the Vilniaus teritorinė muitinė (Regional Customs Service, Vilnius, Lithuania) (‘the VTM’) carried out a partial analysis of the import declarations for the period from 1 April 2010 to 31 May 2012 and found irregularities in the VAT identification numbers. It corrected them.

35In 2013 the Tax Inspectorate received information from the Hungarian, Polish and Slovak tax authorities concerning possible fraud in the application of ‘customs procedure 42’. In particular, those authorities stated that they could not certify that the fuel had been received by the purchasers and observed that those purchasers had not declared VAT for the period concerned.

36In the light of that information, the Tax Inspectorate carried out a further tax check in 2013 relating to Enteco Baltic’s compliance with VAT obligations for the period from 1 January 2012 to 30 June 2013. It found that Enteco Baltic had provided sufficient evidence to show that the goods had left Lithuanian territory and that the right to dispose of the goods as owner had actually been transferred to the purchasers. According to the Tax Inspectorate, it has not been shown that Enteco Baltic acted negligently or imprudently in connection with the transactions at issue.

37The VTM also carried out, in 2014 and 2015, a further check relating to the period from 1 April 2010 to 31 May 2012 and an initial check relating to the period from 1 June 2012 to 31 December 2013. Following those checks, the VTM found that Enteco Baltic had not supplied the fuel to the taxable persons shown on the import declarations, or had not shown that the fuel had been transported and that the right to dispose of it as owner had been transferred to the persons whose names were stated on the invoices mentioning the VAT due.

38Enteco Baltic turned to a Polish economic information company in order to obtain additional information on the transports in question. It also requested the VTM to approach the Polish tax warehouses for the information which the Polish information company was unable to obtain. The request was not granted.

39On 25 November 2015 the VTM adopted an inspection report, in which it found that Enteco Baltic had wrongly taken the view that the imports of fuel from Belarus were exempt from VAT. Consequently, it ordered it to pay the sum of EUR 3220822 in VAT, plus penalties and default interest.

40The Customs Department confirmed those orders by decision of 16 March 2016.

41Enteco Baltic appealed against that decision of the Customs Department to the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Tax Disputes Commission of the Government of the Republic of Lithuania). By decision of 1 June 2016, the Commission referred the case back to the Customs Department.

42Both Enteco Baltic and the Customs Department brought proceedings before the referring court seeking inter alia the annulment of the decision of the Tax Disputes Commission of the Government of the Republic of Lithuania.

43In those circumstances, the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Is Article 143(2) of the VAT Directive to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in Article 143(1)(d) of that directive solely because at the time of importation the goods were planned to be supplied to one VAT payer and therefore its VAT identification number was specified in the import declaration, but later, after a change in circumstances, the goods were transported to another taxable person (VAT payer) and the public authority was provided with full information about the identity of the actual purchaser?

In circumstances such as those of the present case, can Article 143(1)(d) of the VAT Directive be interpreted as meaning that documents that have not been disproved (e-AD [electronic administrative document] consignment notes and e-ROR confirmations) confirming transport of the goods from a tax warehouse in the territory of one Member State to a tax warehouse in another Member State may be regarded as sufficient proof of transportation of the goods to another Member State?

Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in that provision if the right of disposal was transferred to the purchaser of the goods not directly, but via the persons specified by it (transport undertakings/tax warehouses)?

Does an administrative practice conflict with the principle of neutrality of VAT and of the protection of legitimate expectations where under that practice the interpretation differs as to what is to be regarded as a transfer of the right of disposal, and as to what evidence must be submitted to substantiate such a transfer, according to whether Article 167 or Article 143(1)(d) of the VAT Directive is applicable?

Does the scope of the principle of good faith in relation to the levying of VAT also encompass the right of persons to exemption from import VAT (under Article 143(1)(d) of the VAT Directive) in cases such as that in the main proceedings, that is to say, where the customs office denies the right of a taxable person to exemption from import VAT on the basis that the conditions for further supply of goods within the European Union (Article 138 of the VAT Directive) were not complied with?

Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting an administrative practice of Member States under which the assumption that (i) the right of disposal was not transferred to a specific contractual partner and (ii) that the taxpayer knew or could have known about possible VAT fraud committed by the contractual partner is based on the fact that the undertaking communicated with the contractual partners by electronic means of communication and that it was established when the investigation was carried out by a tax authority that the contractual partners did not operate at the addresses specified and did not declare the VAT on the transactions with the taxable person?

Is Article 143(1)(d) of the VAT Directive to be interpreted as meaning that, although the duty to substantiate the right to a tax exemption falls on the taxpayer, this does not, however, mean that the competent public authority deciding the issue of transfer of the right of disposal has no obligation to collect information accessible only to public authorities?’

Consideration of the questions referred

Question 1

44By its first question, the referring court seeks essentially to know whether Article 143(1)(d) and Article 143(2)(b) of the VAT Directive must be interpreted as precluding the competent authorities of a Member State from refusing exemption from VAT on importation on the sole ground that, following a change of circumstances after the importation, the goods in question have been supplied to a taxable person other than the person whose VAT identification number was stated in the import declaration, where the importer has communicated all the information on the identity of the new purchaser to the competent authorities of the Member State of import.

45As a preliminary point, it must be noted that, as pointed out in paragraph 6 above, the period for transposing Directive 2009/69, which inserted paragraph 2 in Article 143 of the original version of the VAT Directive, expired on 1 January 2011. Consequently, Article 143(2) applies only from that date.

46First, it follows from Article 143(1)(d) of the VAT Directive that the Member States are to exempt the importation of goods dispatched or transported from a third territory or a third country into a Member State other than that in which the dispatch or transport of the goods ends, where the supply of such goods by the importer designated or recognised under Article 201 of the directive as liable for payment of VAT is exempt under Article 138.

47Exemption from VAT on importation is thus subject to the importer subsequently making an intra-Community supply which is itself exempt under Article 138 of the VAT Directive, and it therefore depends on compliance with the substantive conditions laid down in that article, as the Advocate General observes in points 42, 50 and 68 of his Opinion.

48Neither Article 138 nor Article 143(1)(d) of the VAT Directive lays down, on the other hand, an obligation for the importer to indicate the VAT identification number of the purchaser who takes part in the subsequent intra-Community transaction.

49Before the amendment of the original version of the VAT Directive by Directive 2009/69, such an obligation could be laid down by national law, as by the Lithuanian law at issue in the main proceedings.

50In the absence of any provision on the point in the VAT Directive, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions under which imports followed by intra-Community supplies will be exempt, with a view to ensuring the correct and straightforward application of the exemption on importation provided for by the directive and of preventing any possible evasion, avoidance or abuse. However, when they exercise their powers, Member States must observe the general principles of law which form part of the EU legal order (see, to that effect, judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 36 and the case-law cited; of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27; and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 33).

51The Court has previously held in this respect, in the context of the exemption of intra-Community supplies laid down by Article 138(1) of the VAT Directive, that, since that exemption depends on compliance with the substantive conditions set out exhaustively in that provision, which do not include an obligation for the purchaser to have a VAT identification number, Member States cannot in principle refuse to grant that exemption on the ground of failure to comply with a formal requirement, such as the purchaser’s VAT identification number, that may be laid down by the national law of a Member State (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 29 and 32).

52The same considerations apply where, pursuant to Article 131 of the VAT Directive, a Member State provides that the exemption on importation laid down in Article 143(1)(d) of the VAT Directive is subject to communication by the importer of the purchaser’s VAT identification number.

53Second, Article 143(2)(b) of the VAT Directive, which derives from the amendments made by Directive 2009/69, now provides that, in order to benefit from the exemption on importation laid down in Article 143(1)(d) of the directive, the importer must provide the purchaser’s VAT identification number at the time of importation.

54While that provision could, having regard to its wording, be interpreted as meaning that the exemption on importation must be refused where the importer, after indicating a VAT identification number of a purchaser, supplies the goods in question to a different purchaser, that interpretation would, however, be contrary to the general scheme and context of Article 143(2) of the VAT Directive.

55In the first place, it is apparent from recitals 3 to 5 of Directive 2009/69 that Article 143(2) of the VAT Directive lists the minimum conditions for the application of the VAT exemption on importation for which it provides. The addition of those conditions to the VAT Directive was justified by the need to prevent the system of VAT exemption being fraudulently exploited by traders taking advantage of divergences between the conditions governing the grant of the exemption on importation previously laid down by the Member States. It follows that the obligation in Article 143(2)(b) of the VAT Directive, following the amendment made by Directive 2009/69, for the importer to provide the VAT identification number of the purchaser cannot be regarded as a substantive condition of exemption, and is merely intended to remedy divergences between the Member States in the application of the exemption.

56That is all the more so as Directive 2009/69 did not amend Article 143(1)(d) of the VAT Directive, which refers to the substantive conditions for the exemption of the ensuing intra-Community supply, laid down in Article 138 of that directive.

57In the second place, having regard to the considerations set out by the Advocate General in points 67 to 71 of his Opinion, it should be added that to adopt a contrary interpretation of that provision would be incompatible with the fact that the exemption on importation is subject to compliance with the conditions for the exemption of the subsequent intra-Community supply and, in the absence of amendment to the latter conditions — in particular Article 138 of the VAT Directive — by Directive 2009/69, would produce inconsistencies in the system of those exemptions.

58Consequently, whether during the currency of the original version of the VAT Directive or that of the VAT Directive, the exemption on importation cannot in principle be refused on the sole ground that the goods were supplied to a different purchaser from the one whose number was indicated at the time of importation, provided that it is shown that the import was actually followed by an intra-Community supply satisfying the substantive conditions of exemption laid down in Article 138(1) of that directive and that the importer always informed the competent authority of the changes in the identity of the purchasers.

59It would be otherwise only if the importer intentionally participated in tax evasion which has jeopardised the operation of the common system of VAT, or if the breach of a formal requirement has the effect of preventing the production of conclusive evidence that the substantive requirements have been satisfied (see, by analogy, judgments of 20 October 2016, Plöckl, C‑24/15, EU:C:2016:791, paragraphs 39, 43, 44 and 46, and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraphs 36 to 39 and 42).

60Moreover, it should be recalled that, in order to penalise non-compliance with formal requirements, the Member States may consider penalties other than the refusal of an exemption from VAT, such as the imposition of a fine or financial penalty proportionate to the seriousness of the infringement (see, to that effect, judgment of 19 April 2018, Firma Hans Bühler, C‑580/16, EU:C:2018:261, paragraph 52).

61In the light of the above considerations, the answer to Question 1 is that Article 143(1)(d) and Article 143(2)(b) of the VAT Directive must be interpreted as precluding the competent authorities of a Member State from refusing exemption from VAT on importation on the sole ground that, following a change of circumstances after the importation, the goods in question have been supplied to a taxable person other than the person whose VAT identification number was stated in the import declaration, where the importer has communicated all the information on the identity of the new purchaser to the competent authorities of the Member State of import, provided that it is shown that the substantive conditions for the exemption of the subsequent intra-Community supply are actually satisfied.

Question 2

62By its second question, the referring court seeks essentially to know whether Article 143(1)(d) in conjunction with Article 138 and Article 143(2)(c) of the VAT Directive must be interpreted as meaning that documents such as CMR and e-AD consignment notes and e-ROR confirmations which confirm the transport of the goods from a tax warehouse in the Member State of import, not to the purchaser but to a tax warehouse in another Member State, may be regarded as sufficient evidence of dispatch or transport of the goods within the meaning of those provisions.

63It must be recalled that Article 143(1)(d) of the VAT Directive provides for the exemption of imports of goods followed by intra-Community supplies which are themselves exempt under Article 138(1) of the directive.

64First, it follows from Article 143(2)(c) of the VAT Directive, the provisions of which derive from the amendments made by Directive 2009/69, that the exemption on importation applies only if, at the time of importation, the importer provides evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State.

65Before those amendments, it was for the Member States alone to lay down the conditions governing the VAT exemption for imports of goods provided for in Article 143(1) of the VAT Directive.

66Second, it must be recalled that the exemption of an intra-Community supply of goods in accordance with Article 138(1) of the VAT Directive applies only where the right to dispose of the goods as owner has been transferred to the purchaser, the vendor shows that the goods have been dispatched or transported to another Member State and, as a result of the dispatch or transport, the goods have physically left the territory of the Member State from which they were dispatched or transported (judgments of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited, and of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 25).

67It is for the person seeking to benefit from the VAT exemption, in other words the supplier of the goods, to prove that the conditions set out in Article 138(1) of the VAT Directive are satisfied (judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraph 26). However, in circumstances in which the right to dispose of the goods as owner is transferred to the purchaser in the territory of the Member State from which they are dispatched or transported and the purchaser dispatches or transports the goods out of the territory of that Member State, the evidence that the supplier might submit to the tax authorities depends essentially on the information that he receives for that purpose from the purchaser (judgments of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 37, and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 66).

68Furthermore, it follows from Article 138(1) of the VAT Directive and the case-law of the Court that the condition concerning the dispatch or transport of the goods is satisfied where the goods have actually left the territory of the Member State from which they are dispatched or transported in order to be transferred to the territory of the Member State of destination (see, to that effect, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraphs 27 and 33).

69It follows that, to benefit from the exemption on importation in Article 143(1)(d) of the VAT Directive, the importer must in particular provide the authorities of the Member State of import with evidence that, at the time of importation, the goods in question are intended for dispatch or transport to another Member State and that, in the context of the subsequent intra-Community supply, they have been the subject of such a dispatch or transport.

70In this respect, it suffices that the importer shows that the goods in question are intended to be dispatched or transported and subsequently are actually dispatched or transported to another Member State, without it being necessary to show that they are dispatched or transported specifically to the address of the purchaser of the goods.

71In the present case, the referring court is uncertain in particular as to the probative value of the CMR and e-AD consignment notes and e-ROR confirmations. While it is for the referring court to assess the probative value of the evidence submitted in the main proceedings, the Court may nonetheless provide it with all the elements of interpretation of EU law that may be of use to it.

72As regards the e-AD consignment notes, reference must be made to the provisions of EU law on the electronic administrative document accompanying movements under suspension of excise duty (‘e-AD document’) of goods, such as those at issue in the main proceedings, which are subject to excise duty.

73First, it follows from the provisions of Article 21(2) of Directive 2008/118 and Article 3 of Regulation No 684/2009, read together with Table 1 of Annex I to that regulation, that, no earlier than seven days before the date of dispatch of the excise goods concerned, the consignor is to submit to the competent authorities of the Member State of dispatch a draft e-AD document containing inter alia information on the economic operators concerned, namely the consignor and the consignee, the places of dispatch and destination, the goods dispatched, the invoice relating to the goods, and the transport of the goods. The information in the draft is verified by those authorities, pursuant to Article 21(3) of that directive.

74As the Advocate General observes in points 122 and 124 of his Opinion, it should be considered that such a draft e-AD document, duly completed and presented at the time of importation, is capable of constituting evidence showing that, at the time of importation, the goods in question were intended to be dispatched or transported to another Member State within the meaning of Article 143(2)(c) of the VAT Directive.

75Second, it must be pointed out that, in accordance with Article 24 of Directive 2008/118, on receipt of the excise goods, the consignee is to submit a report of their receipt to the competent authorities of the Member State of destination, and those authorities are to forward it to the consignor. It follows from Article 7 of Regulation No 684/2009, read together with Table 6 of Annex I to that regulation, that the report of receipt includes in particular a reference to the relevant e-AD document.

76It must be considered, as the Advocate General does in point 126 of his Opinion, that such a report of receipt is capable of showing that the goods in question actually left the territory of the Member State of dispatch and were dispatched or transported to another Member State within the meaning of Article 138(1) of the VAT Directive.

77Next, as regards the e-ROR confirmations, it appears from the documents in the case file that they are drawn up after the goods have been dispatched or transported. In so far as they do not yet exist at the time of importation, those confirmations cannot show that, at that time, the goods in question are intended to be dispatched or transported to another Member State within the meaning of Article 143(2)(b) of the VAT Directive. On the other hand, they are capable of being taken into account for the purpose of showing that the goods have actually been dispatched or transported in accordance with Article 138(1) of that directive.

78Finally, as regards the CMR consignment notes, it must be observed that they are drawn up before the dispatch or transport to the Member State of destination and indicate inter alia the place of dispatch, the purchaser, the place of receipt and the transporting vehicles. They are therefore capable of showing that the goods in question are intended to be dispatched or transported to that State, and of being taken into account for the purposes of Article 143(2)(c) of the VAT Directive, in so far as they have been submitted at the time of importation. They can also be taken into account for the purposes of Article 138(1) of the directive, especially where, following the dispatch or transport, they bear a record of receipt.

79According to the order for reference, before the referring court, the parties to the main proceedings disagree on whether the exemption on importation could be refused on the sole ground that the CMR notes produced by Enteco Baltic had no mark confirming receipt or bore the registration mark of the Polish tax warehouses. It should be noted, however, that that ground cannot in itself lead to a refusal of exemption where the other evidence produced by that company is capable of showing that, at the time of importation, the goods in question were intended to be dispatched or transported to a Member State other than the Member State of import and that, during the subsequent transaction, the goods were actually dispatched or transported to that other Member State.

80It is consequently for the referring court to ascertain, in the light of all the evidence produced by Enteco Baltic, whether those conditions are satisfied.

81In the light of the above considerations, the answer to Question 2 is that Article 143(1)(d) in conjunction with Article 138 and Article 143(2)(c) of the VAT Directive must be interpreted as meaning that:

documents which confirm the transport of goods from a tax warehouse in the Member State of import, not to the purchaser but to a tax warehouse in another Member State, may be regarded as sufficient evidence of dispatch or transport of the goods to another Member State;

documents such as CMR consignment notes and e-AD documents may be taken into account to show that, at the time of importation into a Member State, the goods concerned are intended to be dispatched or transported to another Member State within the meaning of Article 143(2)(c) of the VAT Directive, provided that the documents are submitted at that time and include all the necessary information. Those documents, as also the e-ROR confirmations and the report of receipt issued following a movement under suspension of excise duty, are capable of showing that the goods have actually been dispatched or transported to another Member State in accordance with Article 138(1) of that directive.

Questions 3 and 4

82By its third and fourth questions, which should be considered together, the referring court essentially asks whether Article 143(1)(d) of the VAT Directive must be interpreted as precluding the authorities of a Member State from refusing an importer the right to the exemption from VAT laid down in that provision for imports of goods into that Member State carried out by him and followed by intra-Community supplies, where the goods were not transferred directly to the purchaser but were handled by transport undertakings and tax warehouses designated by the purchaser, and whether the concept of ‘supply of goods’ within the meaning of Article 14(1) of the VAT Directive is to be understood in this context in the same way as in the context of Article 167 of the directive.

83It should be recalled, as a preliminary point, that the exemption on importation provided for in Article 143(1)(d) of the VAT Directive is subject to the subsequent performance of an intra-Community supply that is itself exempt by virtue of Article 138(1) of the directive.

84Like any supply of goods as defined in Article 14(1) of the VAT Directive, an intra-Community supply requires the transfer to the purchaser of the right to dispose of tangible property as owner (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 32).

85According to settled case-law, ‘supply of goods’ within the meaning of the VAT Directive must be given an autonomous and uniform interpretation specific to EU law (see, to that effect, judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 22). In accordance with the purpose of the VAT Directive, which is designed inter alia to base the system of VAT on a uniform definition of taxable transactions (see, to that effect, judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe, C‑320/88, EU:C:1990:61, paragraph 8, and of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraph 25), that concept must have a uniform meaning in the context of that directive. Consequently, it cannot be interpreted differently in connection with the exemption on importation and in connection with the right to deduct input VAT referred to in Article 167 of the directive.

86It is also apparent from the Court’s case-law that the concept of ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner (judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 24 and the case-law cited).

87A transfer of the power to dispose of tangible property as owner does not require that the party to whom the property is transferred must physically possess or that it must be physically transported to and/or received by that party (order of 15 July 2015, Itales, C‑123/14, not published, EU:C:2015:511, paragraph 36).

88On the other hand, where there is no transfer of the power to dispose of goods as owner, neither the transfer of goods merely for possession (see, to that effect, judgment of 14 July 2005, British American Tobacco and Newman Shipping, C‑435/03, EU:C:2005:464, paragraph 36) nor the physical movement of the goods concerned by a transporter from one place to another on behalf of other operators (see, to that effect, judgment of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 25) can fall within the concept of ‘supply of goods’.

89As regards the dispute in the main proceedings, in order to determine whether the transactions carried out between the importer and the purchasers following the import of the goods in question are to be classified as ‘supplies of goods’ within the meaning of the VAT Directive, it must be assessed, as follows from points 95 to 97 of the Advocate General’s Opinion, whether the power to dispose of those goods as owner was transferred by Enteco Baltic to the transporters and tax warehouses, or whether they merely played the part of intermediaries in transport and storage without that power being transferred to them. In the latter case, provided that that power was actually transferred to the purchasers by Enteco Baltic, as the order for reference implies, those transactions must be classified as ‘supplies of goods’.

90It is for the referring court to ascertain, in the light of all the facts available to it, whether that is so in the case before it (see, to that effect, judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe, C‑320/88, EU:C:1990:61, paragraph 13, and of 18 July 2013, Evita-K, C‑78/12, EU:C:2013:486, paragraph 34).

91If, following that assessment, it is apparent that Enteco Baltic transferred the power to dispose of the goods as owner to the purchasers, provided that the other conditions for exemption on importation are satisfied, Enteco Baltic cannot be refused the exemption on importation.

92In the light of the above considerations, the answer to Questions 3 and 4 is that Article 143(1)(d) of the VAT Directive must be interpreted as precluding the authorities of a Member State from refusing an importer the right to the exemption from VAT laid down in that provision for imports of goods into that Member State carried out by him and followed by intra-Community supplies on the ground that the goods were not transferred directly to the purchaser but were handled by transport undertakings and tax warehouses designated by the purchaser, where the power to dispose of the goods as owner was transferred to the purchaser by the importer. In this context, the concept of ‘supply of goods’ within the meaning of Article 14(1) of the VAT Directive must be interpreted in the same way as in the context of Article 167 of the directive.

Questions 5 and 6

93By its fifth and sixth questions, which should be considered together, the referring court essentially asks whether Article 143(1)(d) of the VAT Directive must be interpreted as precluding an administrative practice under which, in circumstances such as those of the dispute in the main proceedings, an importer acting in good faith is refused the right to the VAT exemption on importation where the conditions for the exemption of the subsequent intra-Community supply are not satisfied, because of tax evasion on the part of the purchaser.

94It should be recalled that, according to the Court’s case-law, it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of him to satisfy himself that the transaction which he is carrying out does not result in his participation in tax evasion. If the taxable person concerned knew or ought to have known that the transaction which he carried out was involved in a tax evasion scheme of the purchaser and he did not take all reasonable steps in his power to prevent the evasion, he would have to be refused the exemption (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraphs 48 and 54 and the case-law cited).

95It is for the referring court to ascertain, on the basis of an overall assessment of all the facts and circumstances of the dispute in the main proceedings, whether Enteco Baltic acted in good faith and took all the steps which could reasonably be asked of it to satisfy itself that the import and supply transactions which it carried out did not result in its participation in tax evasion (see, to that effect, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). The Court may nonetheless provide it with all the elements of interpretation of EU law that may be of use to it (judgment of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 72).

96In the present case, the documents before the Court contain nothing from which it may be concluded whether or not Enteco Baltic acted with the diligence required. It should, however, be stated here that, as the Advocate General observes in points 102 to 104 of his Opinion, the circumstance that the importer communicated with its customers by electronic means does not mean that lack of good faith or negligence on its part may be identified or that it may be presumed that the company knew or ought to have known that it was participating in tax evasion.

97Should the referring court find that Enteco Baltic acted in good faith and took all the steps which could reasonably be asked of it to satisfy itself that the import and supply transactions which it carried out did not result in its participation in tax evasion, it must be recalled that, in accordance with settled case-law, the principle of legal certainty precludes a Member State which has initially accepted the documents submitted by the vendor as evidence establishing entitlement to an exemption for a supply from subsequently requiring that vendor to account for the VAT on that supply, because of fraud by the purchaser of which the vendor had and could have had no knowledge (see, to that effect, judgments of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 50, and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis, C‑26/16, EU:C:2017:453, paragraph 75).

98It is not apparent from the documents before the Court that those conditions are satisfied in the situation at issue in the main proceedings. Admittedly, according to those documents, on the basis of the evidence submitted by Enteco Baltic, the Tax Inspectorate concluded that the conditions for exemption of the intra-Community supplies were satisfied and that the company could not be accused of any negligence. However, it must be stressed that the Tax Inspectorate’s analysis, which in any event related only to some of the transactions at issue in the main proceedings, did not prevent the VTM from ascertaining, in a further check carried out within the applicable time limits, whether Enteco Baltic had not and could not have been aware of possible tax evasion by the purchaser with respect to all the transactions in question.

99The interpretation of the principle of legal certainty in the light of the considerations set out in paragraphs 97 and 98 above is not called in question by the argument put forward at the hearing by the Lithuanian Government and the Commission that the checks carried out by the Tax Inspectorate and the VTM had different objects, the former examining compliance with the conditions laid down in Article 138 of the VAT Directive and the latter looking at compliance with the conditions laid down in Article 143(1)(d) of that directive. The exemption on importation under Article 143(1)(d) of the VAT Directive is subject to the conditions being satisfied for the exemption of the subsequent intra-Community supply under Article 138(1) of the directive. According to the information in the order for reference, the decision of the VTM concerned precisely the conditions of the latter provision.

100In the light of the above considerations, the answer to Questions 5 and 6 is that Article 143(1)(d) of the VAT Directive must be interpreted as precluding an administrative practice under which, in circumstances such as those of the dispute in the main proceedings, an importer acting in good faith is refused the right to the VAT exemption on importation where the conditions for the exemption of the subsequent intra-Community supply are not satisfied, because of tax evasion on the part of the purchaser, unless it is shown that the importer knew or ought to have known that the transaction was involved in tax evasion committed by the purchaser and did not take all reasonable steps in his power to avoid participation in the evasion. The mere fact that the importer and the purchaser communicated by electronic means of communication cannot allow it to be presumed that the importer knew or could have known that he was participating in tax evasion.

Question 7

101By its seventh question, the referring court essentially asks whether Article 143(1)(d) of the VAT Directive must be interpreted as meaning that the competent national authorities are obliged, when examining the transfer of the power to dispose of goods as owner, to collect information to which only the public authorities have access.

102In this respect, it should be recalled that, by analogy with the case-law cited in paragraph 67 above and as the referring court also states, it is for the importer to show that the conditions for the exemption on importation provided for in Article 143(1)(d) of the VAT Directive are satisfied. In particular, it is for him to show that the power to dispose of the goods as owner has been transferred to the purchaser.

103Moreover, in the context of intra-Community supplies, it follows from the Court’s case-law that, where the supplier is unable to produce the necessary evidence to show that the conditions for the exemption of an intra-Community supply are satisfied, the tax authorities of the Member State in which the dispatch or transport of the goods begins are not obliged to request information from the authorities of the Member State of destination on the basis of the provisions of Regulation No 1798/2003 on the system of exchange of information between the tax authorities of the Member States (see, to that effect, judgment of 22 April 2010, X and fiscale eenheid Facet-Facet Trading, C‑536/08 and C‑539/08, EU:C:2010:217, paragraph 37, and, by analogy, judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraphs 28, 34 and 38).

104That interpretation may be applied to Regulation No 904/2010, which, in accordance with the second paragraph of Article 62, applies from 1 January 2012 and, in accordance with the first paragraph of Article 61, repeals Regulation No 1798/2003 as from that date.

105As may be seen in particular from recitals 3, 4 and 7 of Regulation No 904/2010, the objective of that regulation is to combat VAT fraud and tax evasion and to contribute to the correct application of VAT. To that end, the regulation, in accordance with the second paragraph of Article 1(1), lays down rules and procedures to enable the competent authorities of the Member States to cooperate and to exchange with each other any information that may help to effect a correct assessment of VAT, monitor the correct application of VAT, particularly on intra-Community transactions, and combat VAT fraud. In particular, Article 7(1) of the regulation provides for that purpose that, at the request of a national authority, the requested authority is to communicate any information that may help to effect a correct assessment of VAT. Article 54(1) of the regulation lays down limits to the exchange of information between the national authorities, who are not required to produce the information requested in all circumstances. Consequently, and in the absence of any express provision in the regulation to that effect, the regulation does not confer on a taxable person any specific right to request the transmission of information where he is unable himself to produce evidence capable of showing that he is entitled to an exemption from VAT (see, by analogy, judgment of 27 September 2007, Twoh International, C‑184/05, EU:C:2007:550, paragraphs 30 to 34).

106In the light of the above considerations, the answer to Question 7 is that Article 143(1)(d) of the VAT Directive must be interpreted as meaning that the competent national authorities are not obliged, when examining the transfer of the power to dispose of goods as owner, to collect information to which only the public authorities have access.

Costs

107Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 143(1)(d) and Article 143(2)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/69/EC of 25 June 2009, must be interpreted as precluding the competent authorities of a Member State from refusing exemption from value added tax on importation on the sole ground that, following a change of circumstances after the importation, the goods in question have been supplied to a taxable person other than the person whose value added tax identification number was stated in the import declaration, where the importer has communicated all the information on the identity of the new purchaser to the competent authorities of the Member State of import, provided that it is shown that the substantive conditions for the exemption of the subsequent intra-Community supply are actually satisfied.

Article 143(1)(d) in conjunction with Article 138 and Article 143(2)(c) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning that:

documents which confirm the transport of goods from a tax warehouse in the Member State of import, not to the purchaser but to a tax warehouse in another Member State, may be regarded as sufficient evidence of dispatch or transport of the goods to another Member State;

documents such as consignment notes on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol of 5 July 1978, and electronic administrative documents accompanying movements under suspension of excise duty may be taken into account to show that, at the time of importation into a Member State, the goods concerned are intended to be dispatched or transported to another Member State within the meaning of Article 143(2)(c) of Directive 2006/112, as amended, provided that the documents are submitted at that time and include all the necessary information. Those documents, as also the electronic confirmations of the supply of the goods and the report of receipt issued following a movement under suspension of excise duty, are capable of showing that the goods have actually been dispatched or transported to another Member State in accordance with Article 138(1) of Directive 2006/112, as amended.

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as precluding the authorities of a Member State from refusing an importer the right to the exemption from value added tax laid down in that provision for imports of goods into that Member State carried out by him and followed by intra-Community supplies on the ground that the goods were not transferred directly to the purchaser but were handled by transport undertakings and tax warehouses designated by the purchaser, where the power to dispose of the goods as owner was transferred to the purchaser by the importer. In this context, the concept of ‘supply of goods’ within the meaning of Article 14(1) of that directive, as amended, must be interpreted in the same way as in the context of Article 167 of the directive, as amended.

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as precluding an administrative practice under which, in circumstances such as those of the dispute in the main proceedings, an importer acting in good faith is refused the right to the exemption from value added tax on importation where the conditions for the exemption of the subsequent intra-Community supply are not satisfied, because of tax evasion on the part of the purchaser, unless it is shown that the importer knew or ought to have known that the transaction was involved in tax evasion committed by the purchaser and did not take all reasonable steps in his power to avoid participation in the evasion. The mere fact that the importer and the purchaser communicated by electronic means of communication cannot allow it to be presumed that the importer knew or could have known that he was participating in tax evasion.

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning that the competent national authorities are not obliged, when examining the transfer of the power to dispose of goods as owner, to collect information to which only the public authorities have access.

Signatures

[Signatures]

( *1 ) Language of the case: Lithuanian.

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 22 March 2018 ¹

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Article 14(1) of Directive 2006/112/EC — Article 138(1) and Article 143(1)(d) and (2) of Directive 2006/112 — VAT Exemption for importation followed by an exempt intra-Community supply — Goods dispatched or transported from a third country to a Member State other than the Member State of arrival — Communication by the importer of the VAT registration number of the purchaser in the Member State of destination — Formal or substantive requirement for entitlement to the import exemption — Sufficient documentation to prove dispatch of the goods to another State Member — Concept and conditions of the transfer of the right to dispose of the goods to the purchaser — Good faith of the importer — Knowledge on the part of a taxable person of the purchaser’s involvement in tax evasion — Acceptance by the competent authority of declarations by the importer — Legal certainty — Possible duty of the competent authority to help a taxable person to collect the information necessary to prove compliance with the conditions of exemption)

I. Introduction

1By this reference for a preliminary ruling, the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) seeks from the Court, in essence, an interpretation of Article 14(1), Article 138(1) and Article 143(1)(d) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, ² as amended by Council Directive 2009/69/EC of 25 June 2009, as regards tax evasion linked to imports ³ (‘the VAT Directive’), and the principle of the protection of legal certainty.

2The seven questions submitted by the referring court have been raised in the context of the importation, by UAB Enteco Baltic, into Lithuania of fuels from Belarus intended for intra-Community supply to other Member States.

3The most difficult issue raised in the present case is whether the obligation on the part of an importer, such as Enteco Baltic, to communicate to the competent authorities of the Member State of importation the VAT identification number of its customer, issued in the Member State of destination of the goods, has constituted, since the entry into force of Directive 2009/69, which introduced that obligation into Directive 2006/112, a mere formal requirement, or conversely a substantive requirement, for entitlement to the exemption from import VAT.

II. Legal framework

A. EU law

4According to Article 14(1) of the VAT Directive, ‘“supply of goods” shall mean the transfer of the right to dispose of tangible property as owner’.

5Article 20 of that directive defines ‘intra-Community acquisition’ as ‘the 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, in a Member State other than that in which dispatch or transport of the goods began’.

6Under Article 131 of that directive:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other [EU law] provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

7Article 138(1) of that directive provides:

‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the [European Union], by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.’

8Article 143 of Directive 2006/112 was amended by Directive 2009/69, the first subparagraph of Article 2(1) of which establishes 1 January 2011 as the deadline for transposition. Recitals 3 to 5 of Directive 2009/69 state:

The importation of goods is exempt from [VAT] if followed by a supply or transfer of those goods to a taxable person in another Member State. The conditions under which that exemption is granted are laid down by Member States. Experience, however, shows that divergences in application are exploited by traders to avoid payment of VAT on goods imported under those circumstances.

In order to prevent that exploitation it is necessary to specify, for particular transactions, at Community level, a set of minimum conditions under which this exemption applies.

Since, for those reasons, the objective of this Directive, namely to address the problem of VAT evasion, cannot be sufficiently achieved by the Member States themselves and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the [EC] Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.’

9Under Article 143(1)(d) and (2) of the VAT Directive:

‘1. Member States shall exempt the following transactions:

…

the importation of goods dispatched or transported from a third territory or a third country into a Member State other than that in which the dispatch or transport of the goods ends, where the supply of such goods by the importer designated or recognised under Article 201 as liable for payment of VAT is exempt under Article 138;

…

2. The exemption provided for in paragraph 1(d) shall apply in cases when the importation of goods is followed by the supply of goods exempted under Article 138(1) and (2)(c) only if at the time of importation the importer has provided to the competent authorities of the Member State of importation at least the following information:

his VAT identification number issued in the Member State of importation or the VAT identification number of his tax representative, liable for payment of the VAT, issued in the Member State of importation;

the VAT identification number of the customer, to whom the goods are supplied in accordance with Article 138(1), issued in another Member State, or his own VAT identification number issued in the Member State in which the dispatch or transport of the goods ends when the goods are subject to a transfer in accordance with Article 138(2)(c);

the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State.

However, Member States may provide that the evidence referred to in point (c) be indicated to the competent authorities only upon request.’

10In accordance with Article 157(1)(a) of the VAT Directive ‘Member States may exempt … the importation of goods which are intended to be placed under warehousing arrangements other than customs warehousing’.

11Article 167 of that directive provides that a right of deduction is to arise at the time the deductible tax becomes chargeable.

B. Lithuanian law

12Article 35 of the Lietuvos Respublikos pridėtinės vertės mokesčio įstatymas (Lithuanian Law on value added tax, ‘the Law on VAT’), entitled ‘Cases where imported goods are exempt from import VAT’, provides:

‘1. Imported goods shall be exempt from VAT if it is known at the time of importation that those goods are intended for export and will be transported to another Member State and that the supply of goods by the importer from the Republic of Lithuania to another Member State, under Chapter VI of this Law, shall be subject to a zero rate of VAT.

2. The provisions of this article shall be applicable if the importer is registered for the purposes of VAT in the Republic of Lithuania and the goods are transported to another Member State within a period not exceeding one month from the day of the chargeable event, referred to in Article 14(12) of (13) of this Law. A longer period for transport may be set on objective grounds.

3. Detailed rules for the application of this article shall be laid down by the national customs service [“the SND”] together with the central tax authority.’

13Article 49(1) of the Law on VAT provides:

‘The zero rate of VAT shall apply to goods supplied to a person registered for the purposes of VAT in another Member State which are exported from the national territory to another Member State [regardless of whether the goods are transported by the supplier, the purchaser or any third party whom they might use].’

14Article 56 of the Law on VAT, relating to ‘evidence of applicability of a zero rate of VAT’, provides in particular:

‘1. ... A taxable person for the purposes of VAT who has applied the zero rate of VAT under Article 49 of this Law must have evidence of exportation of the goods from the national territory and, where the zero rate of VAT is applied at the time of the supply of the goods to a person registered for the purposes of VAT in another Member State, evidence that the person to whom the goods were exported is subject to VAT in another Member State.

…

4. Notwithstanding the other provisions of this Article, the tax authority shall have the right, in accordance with the detailed rules laid down by the Mokesčių administravimo įstatymas (Law on tax administration), to require the submission of additional evidence to allow an assessment of the basis for application of the zero rate of VAT. Where the taxable person is unable to show that the zero rate of VAT was duly applied to the supply of goods, to the purchase of goods from another Member State or to the supply of services, that supply of goods, that purchase of goods from another Member State or that supply of services shall be taxed at the standard rate of VAT, or at a reduced rate of VAT if such a rate is laid down for those goods or services.

…

5. Notwithstanding the other provisions of this article, the tax authority has the right to collect, on its own initiative or through the competent law enforcement services, additional evidence to allow an assessment of the basis for application of the zero rate of VAT. Having received evidence that a zero rate of VAT was improperly applied to the supply of goods, to the acquisition of goods from another Member State or to the supply of services, the supply of goods, the acquisition of goods from another Member State or the supply of services shall be taxed at the standard rate of VAT, or at a reduced rate of VAT if such a rate is laid down for those goods or services.’

15Paragraph 4 of the ‘Rules on the exemption from import VAT of goods imported and supplied to another Member State of the European Union’ (‘the Rules’), approved by Decision No 1B-439/VA-71 of the Director of the SND and the Head of the Valstybinės mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (National Tax Inspectorate, Ministry of Finance, Lithuania) (‘the Tax Inspectorate’) of 29 April 2004, is worded as follows:

Goods imported into the national territory shall be exempt from VAT if all the following conditions are met:

it is known at the time of importation that the goods are intended for export and will be transported to another Member State;

the importer of the goods is registered for the purposes of VAT in the national territory when the customs import declaration is made for customs inspection purposes;

the supply of goods imported from Lithuania into another Member State under Title VI of the Law on VAT is exempt in so far as a zero rate of VAT is applied;

the importer supplies to the taxable person of the other Member State the same goods as those he imported into the national territory;

the goods are transported to the other Member State within a period not exceeding one month from the day of the chargeable event referred to in Article 14(12) or (13) of the Law on VAT or within the extended period for transport to another Member State provided for in paragraph 5 of the Rules.’

16According to paragraph 7 of the Rules:

For customs inspection purposes, in addition to the other documents the following shall be provided with the customs import declaration:

7.1 the importer’s certificate of registration for the purposes of VAT and a copy thereof (VAT registration certificate which is returned after verification and a copy thereof);

7.2 documents establishing that the goods imported into the territory of the country are intended to be transported and will be transported to another Member State (transport documents or contract, in particular).’

17The Rules were supplemented by a point 71 which was added by Decision No 1B-773/VA-119 of 28 December 2010 of the Director of the SND and the Head of the Tax Inspectorate, which entered into force on 1 January 2011. Point 71 provides:

‘The importer must without delay inform in writing the regional customs service if the place of storage of the goods or their purchaser changes (the taxable person of the other Member State and/or the Member State to which the goods are supplied as specified in the documents provided for customs inspection purposes), by presenting new evidence explaining the reasons for the changes and enclosing copies of the supporting documents.’

18Point 27.49.1.7 of the ‘Instructions for use of the single administrative document’, approved by Decision No 1B-289 of 13 April 2004 of the Director of the SND, requires the importer to specify the relevant alphabetical code of the EU Member State to which the goods are exported when the import declaration is made and the personal VAT identification number of the consignee, assigned by the competent authorities of the EU Member State, if non-Community goods which are exempt from VAT under Article 35 of the Law on VAT are released for free circulation and imported into the national market.

III. Facts of the dispute in the main proceedings, questions referred for a preliminary ruling and procedure before the Court

19Enteco Baltic is a company established in Lithuania. It is active in the wholesale trade in fuel.

20During the 2010 to 2012 period, Enteco Baltic imported into Lithuania fuels from Belarus. Those fuels were placed under the arrangement known as ‘customs procedure 42’, ⁴ which permits their release for free circulation without being subject to import VAT. In the import declarations, that company provided the VAT identification number of a purchaser located in another Member State, to which it intended to supply the goods. It stored those goods in warehouses belonging to other Lithuanian companies for goods subject to excise duties.

21Enteco Baltic sold those fuels to companies established in Poland, Slovakia and Hungary on the basis of written contracts and individual orders. Those contracts provided for ‘ex-works’ supply. ⁵ Accordingly, Enteco Baltic was only required to hand the fuels over to the purchasers in Lithuania and those purchasers were responsible for the continuation of transport to the Member State of destination.

22The purchasers communicated their specific orders to Enteco Baltic by electronic mail, providing, in particular, the contact details of the representatives who would pick up the goods ordered and information relating to the tax warehouses to which those goods were to be transported. ⁶ VAT invoices issued by Enteco Baltic were usually sent to the purchasers by electronic mail.

23For the purposes of their transport, the goods were the subject of electronic transport documents for goods subject to excise duties and CMR consignment notes. ⁷ The latter were completed by employees with responsibility at the dispatching tax warehouse and specified, inter alia, the place of dispatch of the goods (that is to say the dispatching tax warehouse), as well as the purchaser and place of receipt of those goods (that is to say the receiving tax warehouse).

24After the supply of the goods to the receiving tax warehouses, ⁸ Enteco Baltic received an e-ROR confirmation ⁹ of supply and closure of the electronic transport document. Ordinarily, it also received CMR consignment notes confirming receipt of the goods by the receiving tax warehouses.

25Enteco Baltic sometimes sold goods to taxable persons other than those whose identification numbers were specified on the import declarations. Information relating to those taxable persons from other Member States, including their VAT identification number, was always provided to the Tax Inspectorate in the monthly reports on the supply of goods to other Member States.

26In 2012, the Vilniaus teritorinė muitinė (Regional Customs Service, Vilnius, Lithuania) (‘the VTM’) carried out a partial analysis of the import declarations for the period from 1 April 2010 to 31 May 2012 and found irregularities in the VAT identification numbers. It corrected them.

27In 2013, the Tax Inspectorate received information from the Polish, Slovak and Hungarian tax authorities concerning possible fraud in the application of ‘customs procedure 42’. In particular, those authorities stated that they could not certify that the fuels at issue had been received by the purchasers and observed that those purchasers had not declared VAT during the period concerned.

28In view of that information, the Tax Inspectorate carried out a tax inspection in 2013. It found that Enteco Baltic had provided sufficient evidence to show that the goods had left the country and that the right to dispose of those goods as owner had actually been transferred to the purchasers. According to the Tax Inspectorate, it has not been established that Enteco Baltic acted negligently or imprudently in the course of the transactions at issue.

29The VTM carried out a new inspection in 2014 and 2015, the purpose and period of which overlapped partially with those of the tax inspection carried out by the Tax Inspectorate in 2013. At the end of that new inspection, the VTM found that Enteco Baltic had not supplied fuels to the taxable persons specified in the import declarations or had failed to establish that the fuels had been transported and that the right to dispose of them as owner had been transferred to the persons specified in the VAT invoices.

30Enteco Baltic turned to a Polish economic intelligence company in order to obtain additional information on the transports at issue and requested that the VTM contact the Polish tax warehouses to obtain information which that intelligence company could not obtain. That request was not granted.

31On 25 November 2015, the VTM adopted an inspection report, in which it found that Enteco Baltic had improperly exempted imports of fuels from Belarus. It ordered Enteco Baltic to pay an amount of EUR 3220822 in VAT, plus penalties and default interest.

32The SND upheld those orders by decision of 16 March 2016. In that decision, the SND stated that the import exemption can be applied only if the right to dispose of the goods is transferred directly to another person liable for payment of VAT from another Member State. In this case, that exemption could not be granted to Enteco Baltic since the fuel had been supplied to Polish tax warehouses, whose VAT identification numbers were not specified on the VAT invoices.

33Enteco Baltic appealed against that decision to the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Tax Disputes Commission, Government of Lithuania) (‘the CLF’). By decision of 1 June 2016, the CLF referred the case back to the SND.

34Both Enteco Baltic and the SND brought proceedings before the referring court seeking, inter alia, annulment of the decision of the CLF.

35Before that court, Enteco Baltic and the SND discussed the effect of the supply of fuels to taxable persons from other Member States who were not identified on the import declarations. That court notes that, in the monthly reports on the supply of goods to other Member States, Enteco Baltic had provided the Tax Inspectorate with all the purchasers’ data, including their VAT identification numbers, without concealing the identity of the real acquirers.

36Moreover, the referring court raises the issue of the probative value of the CMR consignment notes, the electronic administrative documents (‘the e-AD’ or ‘e-ADs’) ¹⁰ and the e-ROR letters.

37The referring court is also seeking clarification as to the correct definition of a supply of goods, within the meaning of Article 14(1) of the VAT Directive, in a case where the right to dispose of goods as owner was transferred not directly to the purchaser, but to Polish carriers or tax warehouses. The referring court explains that, before it, Enteco Baltic relies on the case-law relating to entitlement to deduct VAT.

38Moreover, the referring court asks whether, as considered by the CLF, the good faith of the supplier constitutes or may constitute an additional requirement for exemption from import VAT.

39Lastly, that court seeks clarification concerning the assessment of the relevance of evidence for the purposes of application of the VAT Directive.

40It was in those circumstances that the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Is Article 143(2) of the VAT Directive to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in Article 143(1)(d) of that directive solely because at the time of importation the goods were planned to be supplied to one VAT payer and therefore its VAT identification number was specified in the import declaration, but later, after a change in circumstances, the goods were transported to another taxable person (VAT payer) and the public authority was provided with full information about the identity of the actual purchaser?

In circumstances such as those of the present case, can Article 143(1)(d) of the VAT Directive be interpreted as meaning that documents that have not been disproved (e-AD [electronic administrative document] consignment notes and e-ROR [electronic report of receipt] confirmations) confirming transport of the goods from a tax warehouse in the territory of one Member State to a tax warehouse in another Member State may be regarded as sufficient proof of transportation of the goods to another Member State?

Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting a tax authority of a Member State from refusing to apply the exemption provided for in that provision if the right of disposal was transferred to the purchaser of the goods not directly, but via the persons specified by it (transport undertakings/tax warehouses)?

Does an administrative practice conflict with the principle of neutrality of VAT and of the protection of legitimate expectations where under that practice the interpretation differs as to what is to be regarded as a transfer of the right of disposal, and as to what evidence must be submitted to substantiate such a transfer, according to whether Article 167 or Article 143(1)(d) of the VAT Directive is applicable?

Does the scope of the principle of good faith in relation to the levying of VAT also encompass the right of persons to exemption from import VAT (under Article 143(1)(d) of the VAT Directive) in cases such as that in the main proceedings, that is to say, where the customs office denies the right of a taxable person to exemption from import VAT on the basis that the conditions for further supply of goods within the European Union (Article 138 of the VAT Directive) were not complied with?

Is Article 143(1)(d) of the VAT Directive to be interpreted as prohibiting an administrative practice of Member States under which the assumption that (i) the right of disposal was not transferred to a specific contractual partner and (ii) that the taxpayer knew or could have known about possible VAT fraud committed by the contractual partner is based on the fact that the undertaking communicated with the contractual partners by electronic means of communication and that it was established when the investigation was carried out by a tax authority that the contractual partners did not operate at the addresses specified and did not declare the VAT on the transactions with the taxable person?

Is Article 143(1)(d) of the VAT Directive to be interpreted as meaning that, although the duty to substantiate the right to a tax exemption falls on the taxpayer, this does not, however, mean that the competent public authority deciding the issue of transfer of the right of disposal has no obligation to collect information accessible only to public authorities?’

41Enteco Baltic, the Lithuanian Government and the European Commission submitted written observations on those questions. Those parties also presented oral argument at the hearing on 25 January 2018.

IV. Analysis

42Article 143(1)(d) of the VAT Directive establishes, in essence, an exemption for the importation into a Member State of goods dispatched from a third country where that importation is followed by an intra-Community supply by the importer which is exempt under Article 138 of that directive.

43In the case in the main proceedings, it is apparent from the explanations provided by the referring court that Enteco Baltic initially benefited from the exemption provided for in Article 143(1)(d) of the VAT Directive as an importer in Lithuania of fuels from Belarus intended to be supplied to purchasers in Poland, Slovakia and Hungary, since such intra-Community supply is exempt from VAT. The period at issue in the main proceedings concerns fuel imports which took place between 1 April 2010 and 31 May 2012.

44Following various inspections at Enteco Baltic, the consequences of which I shall return to later, the Lithuanian customs authority took the view that that company was, in the final analysis, liable for payment of VAT. As is clear from the order for reference, it is alleged, in essence, that Enteco Baltic specified, at the time of importation, a VAT identification number which ultimately did not tally with that of the actual purchasers and/or failed to establish that the imported fuels were intended to be supplied to another Member State.

45It is clear from Article 143(2) of the VAT Directive that the exemption provided for by Article 143(1)(d) of that directive is to apply, in the case of importation followed by an intra-Community supply, only if at the time of importation the importer has provided to the competent authorities of the Member State of importation, inter alia, on the one hand, the VAT identification number issued in another Member State to the customer to whom the goods are supplied in accordance with Article 138(1) of the VAT Directive and, on the other hand, the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State.

46In the light of the wording of Article 143(2) of the VAT Directive, it would seem at first sight that the case in the main proceedings could be easily resolved. As the Commission suggests in its written observations, it is possible to take the view that the conditions laid down by that article should be regarded not as purely formal requirements but as material requirements for entitlement to exemption from import VAT. It would follow that a failure to fulfil one of those conditions results in a refusal to grant that exemption or, as in the main proceedings in respect of Enteco Baltic, leads to a demand for recovery of VAT from the importer.

47However, the approach proposed by the Commission in its written observations seems to me to disregard not only the somewhat particular circumstances of the case in the main proceedings but also, and more fundamentally, the difficulties as regards the relationship between the requirements laid down in Article 143(2) of the VAT Directive and the conditions for exemption of an intra-Community supply under Article 138(1) of that directive, in particular with regard to the importer’s obligation, at the time of importation, to communicate the VAT registration number of the customer to whom the goods are supplied. Moreover, the Commission itself substantially qualified, if not contradicted, its own position at the hearing before the Court. ¹¹

48The seven questions submitted by the referring court are concerned with the nature, scope and the fulfilment of the two abovementioned requirements provided for by Article 143(2) of the VAT Directive, having regard to the facts of the case in the main proceedings, in particular those relating to proof of transport and of transfer of ownership of the fuels and to the conduct of the Lithuanian tax and customs authorities.

49Whilst taking into account those facts, I shall therefore, first, examine the first question referred, concerning communication of the VAT identification number of the importer’s customer, as provided for in Article 143(2)(b) of the VAT Directive (A). Secondly, I shall consider the other six questions raised by the referring court, which relate to Article 143(2)(c) of the VAT Directive, namely the evidence that the imported goods are intended to be supplied to a Member State other than the Member State of importation (B).

A. The requirement to communicate the VAT identification number of the importer’s customer, as provided for in Article 143(2)(b) of the VAT Directive (first question referred)

50As I have already shown, the import exemption provided for in Article 143(1)(d) of the VAT Directive depends on the existence of a subsequent intra-Community supply which is itself exempt, under Article 138 of that directive.

51Under Article 138(1) of the VAT Directive, Member States are to exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the European Union, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.

52It is settled case-law that the exemption of VAT in respect of the intra-Community supply of goods becomes applicable only if three conditions are fulfilled, that is to say when, first, the right to dispose of the goods as owner has been transferred to the purchaser, secondly, the supplier establishes that those goods have been dispatched or transported to another Member State and, thirdly, as a result of that dispatch or that transport, they have physically left the territory of the Member State of delivery. ¹²

53Those three conditions therefore constitute the material requirements which must be fulfilled in order for the supplier to obtain the exemption for an intra-Community supply, in accordance with Article 138(1) of the VAT Directive.

54As the Court has already held, those conditions are listed exhaustively in Article 138(1) of the VAT Directive. ¹³ They therefore do not include an obligation on the part of the supplier to communicate the purchaser’s VAT identification number issued to that purchaser in the Member State of destination.

55Notwithstanding the important role played by the VAT identification number of taxable persons in the proper functioning of the VAT system, ¹⁴ the Court found that the requirement imposed by national law on the supplier to communicate the VAT identification number of the purchaser of the supplied goods constituted a formal requirement, the non-fulfilment of which could not, without regard to any failure to satisfy the substantive conditions for an intra-Community supply, call into question, in principle, the right of that supplier to obtain exemption from VAT for that transaction. ¹⁵

56The Court has made that finding subject to two reservations, which are two situations in which non-compliance with a formal requirement may lead to loss of entitlement to the exemption from VAT.

57They are, in the first place, the situation where a taxable person has participated in tax evasion which has jeopardised the operation of the common system of VAT and where, accordingly, that taxable person has not acted in good faith and has not taken every step which could reasonably be asked of it to satisfy itself that the transaction which it is carrying out does not result in its participation in such tax evasion. ¹⁶

58In the second place, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied. ¹⁷

59In the case in the main proceedings, it is clear from both the information provided by the referring court and the explanations provided at the hearing by the Lithuanian Government, that the tax authority, that is to say the Tax Inspectorate, responsible for ascertaining, during the inspection carried out in 2013, whether the conditions relating to the intra-Community supply had been fulfilled, considered that Enteco Baltic had provided sufficient evidence to show that the goods had left Lithuanian territory and that the right to dispose of those goods as owner had actually been transferred to the purchasers; moreover, it has not been established that Enteco Baltic acted negligently or imprudently in the course of the transactions at issue.

60In the light of those findings relating to compliance with the conditions of Article 138(1) of the VAT Directive, which must be noted, the errors committed by Enteco Baltic in communicating the identification number of the purchaser or purchasers in the Member States of destination of the fuels therefore did not, according to the information supplied to the Court, prevent the Tax Inspectorate from finding that the substantive requirements for an intra-Community supply had been fulfilled.

61At this stage, it is necessary to examine whether the authorities of a Member State may nevertheless make entitlement to the exemption for the importation of goods which have been supplied, an operation occurring prior to the intra-Community supply, subject to the condition that the importer communicates, at the time of importation, the VAT identification number of the purchaser, that is to say the recipient of the intra-Community supply.

62As is clear from the information provided by the Lithuanian Government, the national law has imposed such a requirement on the importer since 2004.

63In my view, until the amendment of Directive 2006/112 by Directive 2009/69, such a requirement, which was in no way laid down by Article 143(1)(d) of the VAT Directive, had to be regarded as a formal requirement within the meaning of the case-law cited in point 55 of this Opinion. As such, it could not constitute a valid ground for refusing the import exemption for goods subsequently supplied to another Member State, without regard to any failure to satisfy the substantive conditions of Article 143(1)(d) and Article 138(1) of the VAT Directive.

64Was that formal requirement converted into a substantive requirement for entitlement to the import exemption after Directive 2009/69, which inserted Article 143(2)(b) into Directive 2006/112, entered into force (that is to say from 25 July 2009)?

65I do not believe so.

66Admittedly, the wording of Article 143(2) of the VAT Directive might suggest that the three categories of information listed in points (a) to (c) constitute requirements, compliance with which is a condition for entitlement to the import exemption set out in Article 143(1)(d) of that directive.

67However, at the risk of repeating myself, there can be no doubt that the importation of the goods referred to in Article 143(1)(d) of the VAT Directive is intended for consumption not in the Member State of importation but in another Member State, the exemption for which is wholly dependent on the existence of an intra-Community supply that is itself exempt, in accordance with Article 138 of the VAT Directive. Article 143(2)(b) of the VAT Directive also refers, on several occasions, to Article 138 of that directive.

68It follows, in my view, that the substantive conditions for entitlement to the import exemption are wholly dependent on the conditions laid down in Article 138 of the VAT Directive in relation to the subsequent exemption of the intra-Community supply.

69Accordingly, since it did not amend the substantive conditions for an intra-Community supply, provided for in Article 138 of the VAT Directive, which do not include at this stage, as I have already shown, communication by the supplier of the purchaser’s VAT identification number in the Member State of destination, the EU legislature certainly could not have wished to make entitlement to the import exemption subject to fulfilment of such a requirement.

70If the opposite were true, taxable persons importing and supplying goods supplied within the European Union would be refused entitlement to exemption from import VAT even if they fulfilled all the substantive conditions for obtaining the exemption of the intra-Community supply, on which exemption of the earlier import operation is entirely dependent.

71In spite of the legitimate objective of combating tax evasion which led to the adoption of Directive 2009/69, I do not think that the EU legislature intended to establish a system which requires taxable persons to deal with such difficulties and inconsistencies. For the taxable persons concerned in particular, that situation would be irreconcilable with the correct and straightforward application of the exemptions laid down in Article 131 of the VAT Directive. ¹⁸

72Moreover, at the hearing before the Court, the Commission stated that it was of less importance to know the precise VAT identification number of the purchaser than to be able to establish in one way or another the purchaser’s identity. The Commission therefore appears to have accepted, in a manner which somewhat contradicts the content of its written observations, that the importer’s communication, at the time of importation, of the purchaser’s VAT identification number, provided for in the Article 143(2)(b) of the VAT Directive, remains a formal requirement.

73Failure to comply with such a requirement therefore does not result, in my opinion, in loss of entitlement to the exemption from VAT, but could, at most, be penalised by the imposition of a fine in accordance with the provisions of national law.

74In my view, those considerations are supported by certain elements specific to the case in the main proceedings.

75In that regard, it is important to note that Enteco Baltic did not, at the time of importation, fail to inform the competent authorities of the purchaser’s VAT identification number. On the contrary, according to the information provided by the referring court, it is clear that because of a change in circumstances the number initially specified no longer (or no longer only) tallied with that of the actual purchaser.

76It is apparent from point 71 of the Rules adopted by the Director of the SND and the Head of the Tax Inspectorate that the importer must without delay inform the VTM in writing, in particular in the event of a change relating to the taxable person from the other Member State and/or the Member State to which the goods are supplied, as specified in the documents provided for customs inspection purposes, by submitting new evidence explaining the reasons for the changes and attaching copies of the supporting documents.

77That requirement, imposed on the importer by the Lithuanian legislation, obliging him to inform the customs authorities of changes in the identity of the purchaser for whom the goods are intended, constitutes, in my view, an indication that the Lithuanian authorities consider that, at the time of importation, omissions or errors relating to the VAT identification number of the purchaser cannot, in themselves, subsequently call into question entitlement to the import exemption. It would indeed make no sense to require the importer to communicate a change relating to the purchaser if, in any event, such a change automatically entailed refusal of entitlement to the import exemption. The automatic nature of the loss of entitlement to the import exemption on account of changes in relation to the VAT identification of the purchaser in the Member State of destination of the goods supplied would also effectively encourage importers never to communicate such changes to the national authorities for fear of losing entitlement to the import exemption.

78It is also, it seems, under those rules or, at the very least, in accordance with that conception of the merely formal nature of the communication of the purchaser’s VAT identification number that, in the context of the first inspection carried out in 2012 in relation to the imports at issue in the main proceedings, the VTM, according to the findings of the referring court, itself corrected errors relating to inconsistencies in those numbers, as provided by Enteco Baltic in its import declarations. Moreover, according to the referring court, that company always communicated to the Tax Inspectorate any changes relating to the identity of the purchasers.

79I therefore consider that the communication by the importer, at the time of importation, of a purchaser’s VAT identification number which, on account of a change of circumstances, no longer tallies in whole or in part with that of the real purchaser may lead to refusal of entitlement to the import exemption only in the two situations recognised by the Court, and referred to in points 56 to 58 of this Opinion, concerning non-compliance with a formal requirement in the context of the exemption of the intra-Community supply, under Article 138(1) of the VAT Directive.

80In those circumstances, I am of the view that the first question raised by the referring court should be answered as follows:

Article 143(2)(b) of the VAT Directive must be interpreted as meaning that, in the light of the circumstances of the case in the main proceedings, it does not allow the competent authorities of a Member State to refuse the exemption provided for in Article 143(1)(d) of that directive merely on the basis that, at the time of importation, the goods were intended to be supplied to a taxable person in another Member State, which explains why the VAT identification number of that taxable person is specified in the import declaration, although, as the result of a subsequent change of circumstances, the goods were supplied to another taxable person (also liable for payment of VAT) and the authorities of the first Member State were provided with full information relating to the identity of the actual purchaser.

B. The requirement to provide the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State, as laid down in Article 143(2)(c) of the VAT Directive (second to seventh questions referred)

81The second to seventh questions raised by the referring court essentially concern the interpretation of Article 143(1)(d) of the VAT Directive and fulfilment of the requirement, as specified in Article 143(2)(c) of the VAT Directive, that it is necessary to provide, at the time of importation, ‘the evidence that the imported goods are intended to be transported or dispatched from the Member State of importation to another Member State’, together with, inter alia, the interpretation of Article 138(1) and Article 14(1) of that directive, as well as the principle of legal certainty.

82Before examining those questions, it is important to observe that the evidence which is required from the importer, in accordance with Article 143(2)(c) of the VAT Directive, relates to the purpose of the importation into the European Union, that is to say, that that operation is intended to be followed by an intra-Community supply, in accordance with Article 138(1) of that directive.

83The importer must therefore demonstrate, at the time of importation, that he intends to fulfil the substantive conditions for entitlement to the exemption of the intra-Community supply, as provided for in Article 138(1) of the VAT Directive.

84As I have already demonstrated in point 52 of this Opinion, that article lays down three conditions for entitlement to the exemption from VAT when carrying out an intra-Community supply. I would recall that it is necessary to demonstrate, first, that the right to dispose of the goods as owner has been transferred to the purchaser, secondly, that those goods have been dispatched or transported to another Member State and, thirdly, that, as a result of that dispatch or transport, those goods physically left the territory of the Member State of supply.

85Those conditions are, in essence, indissociable from fulfilment of the condition imposed on the importer in the context of Article 143(1)(d) and (2) of the VAT Directive, except that, in the latter case, the importer must demonstrate that, ‘at the time of importation’, the goods imported into the European Union are ‘intended’ for intra-Community supply.

86Thus, as the referring court fully understood, in the context of Article 143(1)(d) and (2) of the VAT Directive, the importer must, at the time of importation, provide evidence, first, that the right to dispose of the imported goods as owner is intended to be transmitted to the purchaser and, secondly, that those goods are intended to be dispatched or transported to another Member State, that is to say that they are also intended physically to leave the territory of the Member State of importation.

87While the third to seventh questions raised by the referring court concern the right, which is intended to be transferred to the purchaser, to dispose of the imported goods as owner, in the light of the circumstances of the case in the main proceedings, in particular in the light of the conduct of Enteco Baltic and that of the Lithuanian authorities, the second question is concerned, for its part, with the evidence establishing that, at the time of importation, the imported goods are intended to be dispatched or transported to another Member State. I shall examine those two issues in turn.

1. The right, which is intended to be transferred to the purchaser, to dispose of the imported goods as owner (third to seventh questions)

88By its third question, the referring court asks whether it is possible to find that the right to dispose of the goods as owner was intended to be transferred to the purchaser, even though that right was intended to be transferred to the purchaser not directly but to persons specified by the latter, namely transport undertakings or tax warehouses.

89That question relates, in my view, to the content of the autonomous and uniform ¹⁹ concept of ‘supply of goods’, within the meaning of Article 14(1) of the VAT Directive, which in fact states that ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner.

90According to the settled case-law of the Court, that concept does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner. ²⁰

91It follows that a transaction may be categorised as a ‘supply of goods’ for the purposes of Article 14(1) of the VAT Directive if, by that transaction, a taxable person makes a transfer of tangible property authorising the other party to hold that property de facto as if it were the owner, without the form by which a right of ownership of that property was acquired having any bearing in that regard. ²¹

92So as to dispel any uncertainty on the part of the referring court in the light of the wording of its fourth question, it should be stated that uniformity of the concept and definition of ‘supply of goods’ in the VAT Directive means that the transfer by the purchaser of the right to dispose of tangible property as owner is also applicable in the context of the interpretation of Article 143(1)(d) and (2) of the VAT Directive, which governs the exemption for the importation into the European Union of goods followed by an exempt intra-Community supply. ²² The transfer to the purchaser of the right to dispose of tangible property as owner is actually an inherent condition for any supply of goods. ²³

93As the Court has held, that concept of ‘supply of goods’ is objective in nature and applies without regard to the purpose or results of the transactions concerned and without its being necessary to determine the intention of the taxable person. ²⁴ That assertion also applies, in my view, in the context of the interpretation of Article 143(1)(d) and (2) of the VAT Directive, that is to say that it is necessary to ascertain, in the light of objective evidence, that, at the time of importation, the imported goods were ‘intended’ for subsequent intra-Community supply, without its being necessary to determine the exact intention of the importer at that time.

94Moreover, in the context of the application of Article 267 TFEU, it is for the national court to assess in each individual case, on the basis of the facts of the dispute before it, whether there has been a transfer of the right to dispose of the property as owner. ²⁵

95In that regard, the wording of the third question submitted by the referring court can only raise uncertainties. That court states that the right to dispose of the fuel was transferred not directly to the purchasers specified in Enteco Baltic’s declarations, but to transport undertakings and tax warehouses.

96If that is indeed true, the latter operators must therefore be regarded as the actual purchasers of the fuel imported by Enteco Baltic, as the Commission suggests. However, if those transport undertakings and those tax warehouses are located on Lithuanian territory, it is not possible, in my view, to grant the VAT exemption for importation to Enteco Baltic, since that operation was followed not by an intra-Community supply but only by an internal supply.

97On the other hand, if neither the transport undertakings nor the tax warehouses, whether they are established in Lithuania or in one of the other three Member States mentioned by the referring court, have obtained the right to dispose of the fuels as owners, that is to say that they have simply served, respectively, as transport and storage intermediaries which were not acting in their own name, with the result that the purchaser specified in Enteco Baltic’s declarations at the time of importation of the fuels may dispose of them, I am of the view that it should be possible to grant the import exemption to Enteco Baltic, provided that the other substantive conditions for entitlement to the exemption from VAT are respected.

98Accordingly, it is for the referring court, in the light of all the circumstances of the case in the main proceedings, to determine which of those two situations exists.

99I would add, however, that among the circumstances which must be taken into account by the referring court in the case in the main proceedings is, in particular, the conduct of Enteco Baltic and that of the Lithuanian authorities, both of which are referred to in the fifth to the seventh questions referred by that court.

100With regard to Enteco Baltic’s conduct, it should be recalled that it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of it to satisfy itself that the transaction which it is carrying out does not result in its participation in tax fraud. ²⁶ If the taxable person concerned knew or should have known that the transaction which it had carried out was part of a fraud committed by the purchaser and that the taxable person had not taken every step which could reasonably be asked of it to prevent that fraud from being committed, that person would have to be refused a VAT exemption. ²⁷

101It is for the national court to verify, on the basis of an overall assessment of all the facts and circumstances of the case in the main proceedings, whether Enteco Baltic acted in good faith and took every step which could reasonably be asked of it to satisfy itself that the transaction carried out had not resulted in its participation in tax evasion. ²⁸

102In that regard, the fact, mentioned by the referring court in its sixth question, that Enteco Baltic communicated with its customers using electronic means of communication, in particular for the purpose of exchanging contractual documents, certainly cannot constitute proof of the importer’s lack of good faith or negligence as to the measures which can reasonably be expected of such an operator to prevent its participation in tax evasion.

103I certainly do not rule out the possibility that if an importer fails, at the time of importation of the goods concerned, to communicate to the competent national authorities the information listed in Article 143(2) of the VAT Directive, those authorities may presume, in view of the purpose for which that provision was inserted into that directive, that that importer knew or ought to have known that it was participating in tax evasion.

104However, I consider that it must be possible for the importer to rebut such a presumption using all the forms of evidence permitted under national law.

105Nonetheless, in the light of the information provided by the referring court, the case in the main proceedings is distinguished, in particular, not by Enteco Baltic’s failure to provide the information listed in Article 143(2) of the VAT Directive, but by the different ways in which the customs and tax authorities assessed the information provided by that operator, in a context in which that operator appears to have cooperated in good faith with those authorities.

106Indeed — and this remark leads me to consider the question of the conduct of the national authorities — the factual information provided by the referring court and the wording of the fifth question which it has submitted strongly suggest that the VTM, during the inspection carried out in 2014 and 2015, cast doubt on the outcome of the inspection carried out in 2013 by the Tax Inspectorate concerning fulfilment of the conditions relating to the existence of an exempt intra-Community supply, for the purposes of Article 138(1) of the VAT Directive.

107I am not convinced by the explanation, provided by the Lithuanian Government at the hearing before the Court, that those two authorities carry out inspections having distinct scopes, in that the customs authority verifies compliance with the conditions of Article 143(1)(d) and (2) of the VAT Directive, while the tax authority checks compliance with the conditions of Article 138 of that directive. As I have already said, the import exemption granted under Article 143(1)(d) of the VAT Directive is entirely dependent on fulfilment of the conditions for exemption of the intra-Community supply which follows that importation, in accordance with Article 138(1) of that directive. The inspections of the national authorities overlap, therefore, at least partially. Moreover, in its fifth question, the referring court refers to the fact that the customs authority (the VTM and/or the SND) denied entitlement to the exemption from import VAT on the basis that the conditions for further (exemption of) supply of goods within the European Union were not complied with, namely those laid down in Article 138 of the VAT Directive which were the subject of the inspection by the Tax Inspectorate in 2013.

108In those circumstances, it is important, in my view, to recall the considerations set out by the Court, concerning the conduct of the national authorities in the context of application of the exemption for intra-Community supplies, in the judgments of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 50) and of 14 June 2017, Santogal M-Comércio e Reparação de Automóveis (C‑26/16, EU:C:2017:453, paragraph 75). In those judgments, the Court held that the principle of legal certainty precludes a Member State which has accepted, initially, the documents submitted by the supplier/vendor as evidence establishing entitlement to the exemption from subsequently requiring that supplier/vendor to account for the VAT on that supply, because of the purchaser’s fraud, of which the supplier/vendor had and could have had no knowledge.

109The referring court must therefore carefully ascertain whether that was actually the situation in the case in the main proceedings.

110I would add, so far as is relevant, that a Member State cannot rely on failings which affect the coordination and cooperation of the activities of its own national authorities in order to refuse to grant entitlement to exemption from VAT to a taxable person who acts in good faith and with respect to whom there is no conclusive evidence indicating that he knew or could know that he was participating in fraud. In that regard, it is quite revealing to note that the two reports of the Court of Auditors of the European Union, drawn up, respectively, in 2011 and 2015 following audits carried out in several Member States, ²⁹ to which reports the Commission referred in its written observations, demonstrate, in particular, that ‘customs and tax controls are not working effectively’ and that ‘the management of the VAT exemption by two different authorities (customs and tax) hinders [that] effectiveness … as there is no seamless communication between them concerning imports under [customs] procedure [42]’. ³⁰ In the light of the factors and circumstances emphasised by the referring court, the case in the main proceedings seems, in my view, to illustrate the uncertainties, or even shortcomings, affecting the flow of communication between customs and tax authorities within a single Member State, as identified in the reports of the Court of Auditors.

111By contrast — and as regards the seventh question submitted by the referring court, relating to the possible obligation of the Lithuanian authorities to collect information from undertakings of other Member States with the aim of establishing that the right to dispose of the goods supplied by Enteco Baltic had been transferred — it should be recalled that, according to the case-law, it is for the operator who relies on an exemption from VAT to establish that the substantive conditions for that exemption are fulfilled. ³¹ In my view, that case-law applies, by analogy, to an importer covered by Article 143(1)(d) of the VAT Directive.

112As regards the role of the national authorities, the Court has already found, in essence, that measures adopted at EU level establishing a system for exchanging information between the tax authorities of the Member States ³² were not put in place to replace the taxable person’s obligation to establish the intra-Community nature of the operations carried out where that taxable person is not himself able to provide the necessary evidence for that purpose. ³³

113Those measures therefore do not confer on a taxable person ³⁴ specific rights which, in particular, allow him to secure the use by a competent authority of the mechanism for exchanging information which those measures established.

114A fortiori, I consider that EU law on the exchange of information and administrative cooperation between Member States in the field of VAT does not require national authorities to collect, at the request of a taxable person, information from undertakings of other Member States, where that taxable person cannot himself provide the evidence necessary to demonstrate that the right to dispose, as owner, of the goods which have been imported and supplied has been transferred to the purchaser and, more generally, to demonstrate that the importations or supplies by that taxable person are exempt from VAT.

115I therefore propose that the third to seventh questions referred for a preliminary ruling should be answered as follows:

Article 143(1)(d) of the VAT Directive must be interpreted as meaning that it does not allow the competent authorities of a Member State to refuse the exemption from import VAT where the right to dispose, as owner, of the goods which have been imported and supplied has not been directly transferred to the purchaser, provided that that right has indeed been transferred to that taxable person and not to other persons, which it is for the referring court to ascertain;

the principle of legal certainty must be interpreted as meaning that it prevents the customs authority of a Member State from refusing to grant entitlement to exemption from import VAT to a taxable person, acting in good faith and without its having been established that he knew or ought to have known that he was participating in tax evasion, on the ground that one of the substantive conditions for the VAT exemption for an intra-Community supply following importation is no longer fulfilled, even though that condition had already been regarded as having been fulfilled by the competent authority of the same Member State following an inspection of the evidence and documents provided by the taxable person. It is for the referring court to ascertain whether the facts of the case in the main proceedings make it possible to find that all those circumstances apply and all those conditions are fulfilled, it being understood that the mere fact that the taxable person used electronic means to communicate with the other parties to the contract cannot give rise to an assumption of negligence or bad faith on the part of that taxable person.

Article 143(1)(d) and (2) of the VAT Directive must be interpreted as meaning, first, that it is for the taxable person who relies on the exemption from import VAT to establish that the substantive conditions for that exemption are fulfilled and, secondly, that that taxable person cannot require that the competent authorities of the Member State of importation, when examining whether the right to dispose of the goods supplied as owner was transferred to the purchaser, collect from other taxable persons information accessible only to the public authorities.’

2. Evidence capable of demonstrating that, at the time of importation, the imported goods are intended to be dispatched or transported to another Member State (second question)

116By its second question, the referring court asks the Court about the probative value of certain documents, such as e-ADs and e-ROR letters, confirming the transport of fuels from tax warehouse located in the Member State of importation (in this case Lithuania) to a tax warehouse located in the Member State of destination (Poland, to all appearances, in the case in the main proceedings).

117Neither Article 143(1)(d) and (2)(c) of the VAT Directive nor Article 138 thereof states what evidence taxable persons must provide in order to be granted the exemption from VAT. It follows that, in accordance with Article 131 of the VAT Directive, that issue falls within the competence of the Member States, in accordance with the general principles of law which form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality. ³⁵

118In the first place, with regard to the interpretation of Article 143 of the VAT Directive, as has been pointed out by the referring court and as the Commission has argued, e-ROR letters are electronic documents, specific to goods subject to excise duties, which are drawn up following the dispatch and/or transport of the goods, confirming that those operations have been carried out.

119However, in order to fulfil the requirement set out in Article 143(2)(c) of the VAT Directive, the importer must provide proof, ‘at the time of importation’, that the imported goods are intended to be dispatched or transported to another Member State.

120In my view, therefore, e-ROR letters cannot constitute sufficient evidence to demonstrate that, at the time of importation, the imported goods were intended for intra-Community supply.

121By contrast, and as the Commission has also argued in its written observations, commercial documents, such as CMR consignment notes, which are drawn up prior to the dispatch or transport of the imported goods to the Member State of destination are capable of objectively establishing the intention, at the time of importation, to dispatch or transport those goods to another Member State.

122As regards e-ADs, which are governed by the provisions of Directive 2008/118 and Regulation No 684/2009, those documents must accompany movements of goods under suspension of excise duty. Thus, in accordance with Article 21(2) of Directive 2008/118 and Article 3 of Regulation No 684/2009, a draft electronic administrative document must be submitted by the consignor to the competent authorities of the Member State of dispatch, no earlier than 7 days before the date indicated on that document as date of dispatch of the goods concerned. Such a formality enables those authorities to check the validity of the information provided on the document, which includes, in particular, according to Table 1 of Regulation No 684/2009, information concerning the goods dispatched, the operator of the place of dispatch and the operator of the place of destination of the goods. It is therefore quite conceivable that, at the time of importation of goods from a third country, the importer or a person acting on his behalf may send the draft e-AD to the competent authorities of the Member State from which the goods will be transported under suspension of excise duty, for the purpose of validating that information.

123In the case in the main proceedings, the information provided to the Court does not identify the circumstances in which the various e-ADs were sent to the competent Lithuanian authorities or indicate the content of those documents (or draft documents) or the way in which they were processed by the national authorities.

124Nevertheless, in my view, it is possible to assert that an e-AD is capable of constituting evidence establishing that, at the time of importation, the imported goods were intended to be dispatched to another Member State, for the purposes of Article 143(2)(c) of the VAT Directive.

125It is for the referring court, on the one hand, to ascertain whether, at the time of importation, the national authorities had draft e-ADs at their disposal and whether those authorities had sufficient information available to them and, on the other hand, to review the way in which those documents were processed by those authorities.

126In the second place, with regard to the requirement for the goods which are the subject of an intra-Community supply actually to be dispatched or transported, a condition that, as I have already shown, must be fulfilled under Article 138 of the VAT Directive, on which the import exemption under Article 143(1)(d) of that directive depends entirely, I consider that e-ROR letters, issued by a tax warehouse located in the Member State of destination, may constitute evidence of the actual physical movement of the goods supplied beyond the borders of the Member State of supply. As regards the e-AD, Article 24 of Directive 2008/118 provides that, on receipt of goods, the consignee must, no later than five working days after the end of the movement, submit a report of receipt to the competent authorities of the Member State of destination, which are to carry out a verification of the data thus communicated and may validate and then send the data to the competent authorities of the Member State of dispatch. In accordance with Article 7 and Table 6 of Regulation No 684/2009, the report of receipt must include, in particular, the administrative code of the e-AD. All that information is therefore capable of showing that the goods concerned left the territory of the Member State of dispatch.

127In that regard, neither the wording of Article 138(1) of the VAT Directive nor the case-law interpreting that provision requires that the documents sent by the supplier show that the goods were dispatched or transported to the purchaser. ³⁶ It is sufficient, as is also confirmed by the wording of Article 143 of the VAT Directive, that the imported goods physically left the territory of the Member State of supply for the Member State of destination.

128It is for the referring court to ascertain, on the one hand, whether, at the time of importation, Enteco Baltic provided sufficient evidence that the imported fuels were intended for intra-Community supply, within the meaning of Article 143(2)(c) of the VAT Directive and, on the other hand, whether that company sufficiently demonstrated, in accordance with Article 138 of that directive, that those fuels physically left Lithuanian territory, in the light, as I have already noted, of the conduct of that company and of the competent national authorities.

129I therefore suggest that the answer to the second question referred should be as follows:

Article 143(1)(d) and (2)(c) of the VAT Directive must be interpreted as meaning that documents, such as the electronic administrative document (‘the e-AD’) and the consignment note drawn up on the basis of the Convention, signed at Geneva on 19 May 1956, on the Contract for the International Carriage of Goods by Road (‘the CMR consignment note’), may be regarded as evidence establishing that, at the time of importation, the goods imported are intended to be dispatched or transported to another Member State. Article 138 of the VAT Directive, to which Article 143(1)(d) of that directive refers, must be interpreted as meaning that reports of receipt of e-ADs and ‘e-ROR’ confirmation letters may be regarded as evidence establishing that the imported goods, which were the subject of the intra-Community supply, left the territory of the Member State of importation and supply and were dispatched to the Member State of destination.

V. Conclusion

Conclusion

130In the light of all the foregoing considerations, I propose that the Court should reply as follows to the questions referred by the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania):

Article 143(2)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/69/EC of 25 June 2009, as regards tax evasion linked to imports, must be interpreted as meaning that, in the light of the circumstances of the case in the main proceedings, it does not allow the competent authorities of a Member State to refuse the exemption provided for in Article 143(1)(d) of that directive merely on the basis that, at the time of importation, the goods were intended to be supplied to a taxable person in another Member State, which explains why the value added tax (VAT) identification number of that taxable person is specified in the import declaration, although, as the result of a subsequent change of circumstances, the goods were supplied to another taxable person (also liable for payment of VAT) and the authorities of the first Member State were provided with full information relating to the identity of the actual purchaser.

Article 143(1)(d) and (2)(c) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning that documents, such as the electronic administrative document (‘the e-AD’) and the consignment note drawn up on the basis of the Convention, signed at Geneva on 19 May 1956, on the Contract for the International Carriage of Goods by Road (‘the CMR consignment note’), may be regarded as evidence establishing that, at the time of importation, the goods imported are intended to be dispatched or transported to another Member State. Article 138 of Directive 2006/112, as amended by Directive 2009/69, to which Article 143(1)(d) of Directive 2006/112, as amended, refers, must be interpreted as meaning that reports of receipt of e-ADs and ‘e-ROR’ confirmation letters may be regarded as evidence establishing that the imported goods, which were the subject of the intra-Community supply, left the territory of the Member State of importation and supply and were dispatched to the Member State of destination.

Article 143(1)(d) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning that it does not allow the competent authorities of a Member State to refuse the exemption from import VAT where the right to dispose, as owner, of the goods which have been imported and supplied has not been directly transferred to the purchaser, provided that that right has indeed been transferred to that taxable person and not to other persons, which it is for the referring court to ascertain.

The principle of legal certainty must be interpreted as meaning that it prevents the customs authority of a Member State from refusing to grant entitlement to exemption from import VAT to a taxable person, acting in good faith and without its having been established that he knew or ought to have known that he was participating in tax evasion, on the ground that one of the substantive conditions for the VAT exemption for an intra-Community supply following importation is no longer fulfilled, even though that condition had already been regarded as having been fulfilled by the competent authority of the same Member State following an inspection of the evidence and documents provided by the taxable person. It is for the referring court to ascertain whether the facts of the case in the main proceedings make it possible to find that all those circumstances apply and all those conditions are fulfilled, it being understood that the mere fact that the taxable person used electronic means to communicate with the other parties to the contract cannot give rise to an assumption of negligence or bad faith on the part of that taxable person.

Article 143(1)(d) and (2) of Directive 2006/112, as amended by Directive 2009/69, must be interpreted as meaning, first, that it is for the taxable person who relies on the exemption from import VAT to establish that the substantive conditions for that exemption are fulfilled and, secondly, that that taxable person cannot require that the competent authorities of the Member State of importation, when examining whether the right to dispose of the goods supplied as owner was transferred to the purchaser, collect from other taxable persons information accessible only to the public authorities.

¹ Original language: French.

² OJ 2006 L 347, p. 1.

³ OJ 2009 L 175, p. 12.

⁴ That procedure is called ‘customs procedure 42’ because, in order to obtain exemption from VAT, the importer of the goods must enter in box 37 of the single administrative document, a code that starts with 42. That procedure allows goods which are subsequently to be the subject of a Community supply to be imported free of VAT, with simplified formalities and lower costs.

⁵ In such commercial contracts, the seller is obliged only to hand over the goods for export, while the purchaser bears all the risks related to their transport.

⁶ The reference for a preliminary ruling refers only to warehouses located in Poland.

⁷ The CMR consignment note [drawn up on the basis of the Convention, signed at Geneva on 19 May 1956, on the Contract for the International Carriage of Goods by Road (CMR), Treaty Series, 1961, vol. 399, p. 189] is a land transport document which must be drafted, before the international transport of goods, by one of the parties to the contract of carriage. The CMR consignment note attests in particular the dispatch of the goods from the moment that the carrier affixes his signature to it.

⁸ See footnote 6 above.

⁹ It is common ground that an e-ROR is an electronic confirmation of the receipt of goods subject to excise duties, drawn up by the recipient.

¹⁰ Acronym of ‘electronic administrative document’. The electronic administrative document is provided for by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) and must comply with the requirements of Commission Regulation (EC) No 684/2009 of 24 July 2009 implementing Council Directive 2008/118/EC as regards the computerised procedures for the movement of excise goods under suspension of excise duty (OJ 2009 L 197, p. 24). That document is required to qualify for the excise duty suspension arrangement.

¹¹ See point 72 of this Opinion.

¹² See, in particular, to that effect, judgments of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 42); of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 31); of 9 October 2014, Traum (C‑492/13, EU:C:2014:2267, paragraph 24) and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 30).

¹³ See judgments of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 59); of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraph 29) and of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 47).

¹⁴ In that regard, I would point out that Article 214(1)(b) of the VAT Directive invites Member States to take the measures necessary to ensure that taxable persons are identified by means of an individual number, the individual VAT identification number referred to in Article 215 of that directive. Moreover, in addition to Article 143(2) of that directive, several provisions in that measure refer to that number, as is the case with Article 226 concerning the content of invoices and Article 365 concerning the VAT return. In the context of intra-Community transactions, the Court has also pointed out that that number facilitates the determination of the Member State in which the final consumption of the goods delivered takes place: see, in particular, judgment of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraph 27 and case-law cited).

¹⁵ See, to that effect, judgments of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraphs 59 to 63); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraphs 51 and 52); of 20 October 2016, Plöckl (C‑24/15, EU:C:2016:791, paragraph 40) and of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraph 32).

¹⁶ See, in particular, judgment of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraphs 39 and 40 and case-law cited).

¹⁷ Judgment of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraph 42 and case-law cited).

¹⁸ See, in particular, to that effect, judgment of 3 September 2015, Fast Bunkering Klaipėda (C-526/13, EU:C:2015:536, paragraph 28 and the case-law cited).

¹⁹ See judgment of 3 June 2010, De Fruytier (C‑237/09, EU:C:2010:316, paragraph 22).

²⁰ See, in particular, judgments of 21 November 2013, Dixons Retail (C‑494/12, EU:C:2013:758, paragraph 20) and of 3 September 2015, Fast Bunkering Klaipėda (C‑526/13, EU:C:2015:536, paragraph 51).

²¹ Judgment of 18 July 2013, Evita-K (C‑78/12, EU:C:2013:486, paragraph 35).

²² In its fourth question, the referring court seems to suggest that the Lithuanian authorities rely on a different interpretation of the concept of the transfer of the right of disposal of goods, depending on whether they are applying the rules relating to the right of deduction of VAT (Article 167 of the VAT Directive) or those concerning the exemption for importation followed by an intra-Community supply (Article 143(1)(d) and (2) of the VAT Directive). As I have indicated, such a difference of interpretation, which is not clearly set out in the grounds of the order for reference, is, in any event, by no means justified in the light of the autonomy and uniformity of the definition of ‘supply of goods’, within the meaning of Article 14(1) of the VAT Directive.

²³ Judgment of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 32).

²⁴ See, to that effect, judgment of 21 November 2013, Dixons Retail (C‑494/12, EU:C:2013:758, paragraph 21 and case-law cited).

²⁵ See, to that effect, judgment of 18 July 2013, Evita-K (C‑78/12, EU:C:2013:486, paragraph 34).

²⁶ See, in particular, judgment of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 48).

²⁷ See, in particular, judgments of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 54) and of 9 October 2014, Traum (C‑492/13, EU:C:2014:2267, paragraph 42).

²⁸ See, in particular, by analogy, judgments of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 53) and of 9 October 2014, Traum (C‑492/13, EU:C:2014:2267, paragraph 41).

²⁹ See, respectively, Court of Auditors, Special Report No 13, Does the control of customs procedure 42 prevent and detect VAT evasion?, Luxembourg, 2011, and Special Report No 24, Tackling intra-Community VAT fraud: More action needed, Luxembourg, 2015.

³⁰ See Special Report No 13, paragraphs 55 and 56. See also paragraphs 36 to 38 of that report and paragraphs 78 and 79 of Special Report No 24.

³¹ See, in particular, judgments of 27 September 2007, Twoh International (C‑184/05, EU:C:2007:550, paragraph 26) and of 7 December 2010, R. (C‑285/09, EU:C:2010:742, paragraph 46).

³² Those are, respectively, Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) and 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). Those two measures were, respectively, replaced by Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation (OJ 2011 L 64, p. 1), the deadline for the transposition of which was 1 January 2013, and by Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ 2010 L 268, p. 1), which entered into force on 1 January 2012.

³³ See, to that effect, judgments of 27 September 2007, Twoh International (C‑184/05, EU:C:2007:550, paragraph 34) and of 22 April 2010, X and fiscale eenheid Facet-Facet Trading (C‑536/08 and C‑539/08, EU:C:2010:217, paragraph 37).

³⁴ See, as regards Directive 77/799, judgments of 27 September 2007, Twoh International (C‑184/05, EU:C:2007:550, paragraph 31) and of 22 October 2013, Sabou (C‑276/12, EU:C:2013:678, paragraph 36). See also, to that effect, as regards Directive 2011/16, which pursues an objective similar to that of Directive 77/799, which it replaced, judgment of 16 May 2017, Berlioz Investment Fund (C‑682/15, EU:C:2017:373, paragraphs 46, 47 and 58).

³⁵ See, to that effect, judgments of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 36); of 9 October 2014, Traum (C‑492/13, EU:C:2014:2267, paragraph 27) and of 9 February 2017, Euro Tyre (C‑21/16, EU:C:2017:106, paragraph 33).

³⁶ See, in particular, to that effect, judgments of 6 September 2012, Mecsek-Gabona (C-273/11, EU:C:2012:547, paragraph 31); of 9 October 2014, Traum (C-492/13, EU:C:2014:2267, paragraph 24) and of 9 February 2017, Euro Tyre (C-21/16, EU:C:2017:106, paragraph 25).