C-26/16 Santogal M-Comércio e Reparação de Automóveis

JUDGMENT OF THE COURT (Ninth Chamber)

14 June 2017 ( *1 )

‛Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 138(2)(a) — Conditions for the grant of the exemption for an intra-Community supply of a new means of transport — Purchaser’s residence in the Member State of destination — Temporary registration in the Member State of destination — Risk of tax evasion — Good faith of the vendor — Obligation of diligence on the part of the vendor’

In Case C‑26/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal), made by decision of 30 November 2015, received at the Court on 18 January 2016, in the proceedings

Santogal M-Comércio e Reparação de Automóveis Lda

v

Autoridade Tributária e Aduaneira,

THE COURT (Ninth Chamber),

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

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

Santogal M-Comércio e Reparação de Automóveis Lda, by B. Botelho Antunes and J. Mendonça, advogados,

the Portuguese Government, by L. Inez Fernandes, R. Campos Laires and M. Figueiredo, acting as Agents,

the European Commission, by A. Caeiros and L. Lozano Palacios, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 1 February 2017,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 138(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1, ‘the VAT Directive’).

2The request has been made in the course of proceedings between Santogal M-Comércio e Reparação de Automóveis Lda (‘Santogal’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) in relation to that authority’s refusal to exempt a transaction from value added tax (VAT) as an intra-Community supply of a new means of transport.

Legal context

EU law

3According to recital 11 of the VAT Directive:

‘It is also appropriate that, during that transitional period, intra-Community acquisitions of a certain value, made by exempt persons or by non-taxable legal persons, certain intra-Community distance selling and the supply of new means of transport to individuals or to exempt or non-taxable bodies should also be taxed in the Member State of destination, in accordance with the rates and conditions set by that Member State, in so far as such transactions would, in the absence of special provisions, be likely to cause significant distortion of competition between Member States.’

4Article 2 of that directive provides:

‘1. The following transactions shall be subject to VAT:

…

the intra-Community acquisition of goods for consideration within the territory of a Member State by:

…

in the case of new means of transport, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1), or any other non-taxable person;

…’

5Article 3 of that directive provides:

‘1. By way of derogation from Article 2(1)(b)(i), the following transactions shall not be subject to VAT:

…

the intra-Community acquisition of goods, other than those referred to in point (a) and Article 4, and other than new means of transport or products subject to excise duty, by a taxable person for the purposes of his agricultural, forestry or fisheries business subject to the common flat-rate scheme for farmers, or by a taxable person who carries out only supplies of goods or services in respect of which VAT is not deductible, or by a non-taxable legal person.

…’

6The first paragraph of Article 20 of that directive provides:

‘“Intra-Community acquisition of goods” shall mean 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.’

7Article 131 of the VAT Directive, in Chapter 1, entitled ‘General provisions’, of Title IX thereof, itself concerning VAT exemptions provides:

‘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.’

8Chapter 4 of Title IX of the VAT Directive relates to ‘Exemptions for intra-Community transactions’. As regards the exemptions for the supply of goods, Article 138 thereof provides:

‘1. Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the [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.

2. In addition to the supplies of goods referred to in paragraph 1, Member States shall exempt the following transactions:

the supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the [Union], by or on behalf of the vendor or the customer, for taxable persons, or non-taxable legal persons, whose intra-Community acquisitions of goods are not subject to VAT pursuant to Article 3(1), or for any other non-taxable person;

…’

Portuguese law

9The Regime do IVA das Transações Intracomunitárias (Intra-Community Trade VAT Rules; ‘RITI’) transposes the rules on intra-Community transactions arising from the VAT Directive into Portuguese law.

10Under Article 14(b) of the RITI, read in conjunction with Article 1(e) of the RITI, the supply for consideration of new means of transport by any person, dispatched or transported by or on behalf of the vendor or the purchaser from national territory, to a purchaser established or domiciled in another Member State is exempt from VAT.

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

11Santogal is a company operating in the motor trade in Portugal.

12Under an invoice of 26 January 2010, Santogal sold for a sum of EUR 447665 a new vehicle which it had previously acquired from Mercedes-Benz Portugal SA and the entry of which into Portuguese territory had been recorded in a vehicle customs declaration of 25 May 2009.

13In the course of the sale, the purchaser, an Angolan national, informed Santogal of his intention to use the vehicle for his personal use in Spain, where he claimed to be established, to take personal responsibility for transporting it to Spain, to arrange for it to undergo the technical inspection and to have it registered. The purchaser submitted to Santogal his Spanish foreign national’s identification number (NIE), a document issued on 2 May 2008 by the Ministério del Interior, Dirección General de la Policia y de la Guardia Civil — Comunidad Tui-Valencia (Ministry of the Interior, Directorate-General of Police and of the Civil Guard — Municipality of Tui-Valencia, Spain) confirming his entry in the central register of foreign nationals under that NIE, as well as a copy of his Angolan passport. The address of the purchaser, as given by him in the course of the sale, did not match that stated on the document of 2 May 2008.

14In the light of those documents, Santogal considered that the sale was exempt of VAT pursuant to Article 14(b) of the RITI. Consequently, there had been no VAT assessment in Portugal.

15The vehicle was transported to Spain in a totally enclosed trailer.

16Following the technical inspection of the vehicle in Spain, the purchaser sent to Santogal, at the latter’s request, two documents to complete the sale, namely, first, a technical inspection certificate issued on 11 February 2010 and, second, a Spanish registration document issued on 18 February 2010. That registration document, which provided an address for the purchaser which matched neither the address given by the purchaser at the time of the sale nor that stated on the document of 2 May 2008, related to a temporary ‘tourist’ registration due to expire on 17 February 2011. According to the information provided by the referring court, in accordance with Spanish law, tourist registration amounts to a temporary registration, which can normally be used for 6 months in every 12-month period and may be extended by the authorities. Only persons not habitually resident in Spain may avail themselves of such registration.

17Further to information sent by Santogal in February 2011 with a view to cancelling the customs declaration of 25 May 2009, Mercedes-Benz Portugal filed, on 3 March 2011, a supplementary customs declaration (‘the supplementary declaration’) seeking the cancellation of that earlier declaration because the vehicle had been dispatched. The customs declaration of 25 May 2009 was cancelled by the competent Portuguese authorities.

18By letter of 24 October 2013, the Direção de Serviços Antifraude Aduaneira (Directorate of Customs Anti-Fraud Services, Portugal) recommended that the Direção de Finanças de Lisboa (Directorate of Finances, Lisbon, Portugal) order an assessment of the VAT owing on the sale of the vehicle be carried out. That directorate noted inter alia that the purchaser resided, and was registered as a company director, in Portugal. In addition, it stated that in response to a request for information, the Spanish authorities had stated that the purchaser did not appear to be resident in Spain during 2010 and had never submitted income returns in that country.

19Accordingly, Santogal was the subject of a partial internal VAT audit for the month of January 2010. In that context, the tax and customs authority produced a report in which it concluded that the sale of the vehicle was not covered by the exemption provided for in Article 14(b) of the RITI, on the ground that the purchaser did not reside in Spain or carry on any economic activity there. It further stated that, according to its databases, the purchaser had a Portuguese taxpayer’s number assigned before 2001 and that his country of residence was Portugal.

20Further to that audit, on 14 October 2014, the tax and customs authority issued an additional VAT assessment in the amount of EUR 89533 and a calculation of default interest relating to the period from 12 March 2010 to 20 August 2014 in the amount of EUR 15914.80. Santogal paid those amounts in December 2014.

21Santogal brought an application before the referring court for the cancellation of those assessments and a claim for damages. Before that court, it argued, inter alia, that the tax and customs authority’s interpretation of Articles 1(e) and 14(b) of the RITI is contrary to Article 138(2) of the VAT Directive, which it claimed has direct effect. Santogal also submitted that any VAT fraud committed by the purchaser could not be relied on against it.

22In the order for reference, first, the referring court expresses doubts as to the purchaser’s place of residence at the time of the sale of the vehicle at issue in the main proceedings. In particular, that court notes that the purchaser’s habitual residence was not in Spain. Yet, it has not been established that he resided in Portugal at the time of that sale. Furthermore, the documents produced before the referring court contain no information concerning the payment of VAT relating to the vehicle in Spain or the fate of the vehicle after the grant of the tourist registration. Nor has it been established that eligibility under the rules on tourist registration ceased in accordance with the detailed rules laid down in Spanish law.

23Next, the referring court observes that it has not been shown that Santogal cooperated with the purchaser in order to avoid payment of VAT on the sale of the vehicle. On the contrary, it is of the view that it is clear from the evidence produced before it that Santogal ensured that the conditions for exemption from VAT were satisfied. It notes that neither the customs agents nor the customs authorities raised doubts as to whether the documents were sufficient to cancel the customs declaration of 25 May 2009 and that the letter from the Directorate of Customs Anti-Fraud Services of 24 October 2013 was based on additional information to which Santogal did not have access.

24Finally, referring to the judgment of 7 December 2010, R. (C‑285/09, EU:C:2010:742), the referring court considers that the Court’s case-law does not answer sufficiently clearly the questions raised by the dispute before it.

25It is in those circumstances that the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

Is it contrary to Article 138(2)[(a)] of the VAT Directive for provisions of national law [such as those contained in] Articles 1(e) and 14(b) of the RITI to require, for the grant of exemption from VAT on the supply for consideration of new means of transport, transported by the purchaser from national territory to another Member State, the purchaser to be established or domiciled in that Member State?

Is it contrary to Article 138(2)[(a)] of the VAT Directive for exemption from the tax in the Member State of commencement of the transport operation to be refused in circumstances in which the means of transport purchased has been transported to Spain, where it has been granted tourist registration, provisionally and subject to the [Spanish] fiscal rules … ?

Is it contrary to Article 138(2)[(a)] of the VAT Directive to require the payment of VAT by the [vendor] of a new means of transport in circumstances in which it has not been demonstrated whether or not the tourist registration rules have ceased to apply because of one of the situations provided for in [Spanish law], or whether VAT has been or will be paid by reason of the disapplication of those rules?

Is it contrary to Article 138(2)[(a)] of the VAT Directive and the principles of legal certainty, proportionality and protection of legitimate expectations to require VAT to be paid by the [vendor] of a new means of transport dispatched to another Member State, in circumstances in which:

the purchaser, before dispatch, informs the [vendor] that he resides in the Member State of destination and produces to him a document proving that he has been assigned a foreign national’s identity number in that Member State, indicating a residence in that State different from the residence stated by the purchaser himself;

the purchaser subsequently gives to the [vendor] documents proving that the means of transport purchased has undergone a technical inspection in the Member State of destination and that he has been granted a tourist registration in that State;

it has not been demonstrated that the [vendor] collaborated with the purchaser to avoid paying VAT;

the customs authorities have not raised any objection to the cancellation of the customs declaration for the vehicle on the basis of the documents in the possession of the [vendor]?’

Consideration of the questions referred

Admissibility

26The Portuguese Government claims that the questions referred are inadmissible for three reasons.

27First, it argues that the questions referred, as worded in the order for reference, relate to Article 138(2)(b) of the VAT Directive which is not relevant in the context of the dispute in the main proceedings. The fact that one of the members of the referring court sent that court an email, in which he indicated that the relevant provision was Article 138(2)(a) of the VAT Directive and that a copy of that email was annexed to the order for reference cannot have had the effect of correcting the error made initially, having regard to national procedural rules and the guarantee given to the other Member States to allow them to submit their observations.

28It must be noted that the fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing that court with all the guidance on points of interpretation which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to those points in its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (see, to that effect, judgments of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 29, and of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited).

29In the present case, as the Advocate General observed in points 21 to 23 of his Opinion, it is clear from the grounds of the order for reference that the questions of the national court relate to the interpretation to be given to Article 138(2)(a) of the VAT Directive, regardless of the fact that that court erroneously referred, in that order, to Article 138(2)(b) of that directive. Moreover, that court corrected that error in an email annexed to the decision.

30Second, the Portuguese Government is of the view that the account of the facts of the dispute in the main proceedings is vitiated by inconsistencies and contradictions and lacks clarity.

31According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 18 December 2014, Schoenimport Italmoda Mariano Previti and Others, C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 31 and the case-law cited).

32In the present case, it must be noted that the description of the factual background provided by the referring court is sufficient to enable the Court to usefully answer the questions referred.

33Third, the Portuguese Government claims that the questions referred are hypothetical since the referring court has already indicated, perhaps wrongly, that the VAT assessment at issue in the main proceeding was vitiated by a failure to state reasons and that it will therefore have to be cancelled regardless of the Court’s answer to those questions.

34As the Advocate General noted in point 26 of his Opinion, nothing in the order for reference makes it possible to assert with certainty that that VAT assessment will be cancelled, irrespective of the answer to the questions referred. In any event, there is no doubt that Article 138(2)(a) of the VAT Directive has a link with the subject matter of the dispute in the main proceedings, which concerns that provision’s compatibility with the refusal to exempt from VAT a transaction relating to a new means of transport.

35Therefore, the questions referred are admissible.

The first question

36By its first question, the referring court asks, in essence, whether Article 138(2)(a) of the VAT Directive must be interpreted as precluding national provisions which make the exemption of an intra-Community supply of a new means of transport subject to the requirement that the purchaser of that means of transport must be established or domiciled in the Member State of destination of that means of transport.

37As a preliminary point, it must be noted that the context of that question concerns the transitional arrangements relating to VAT applicable to intra-Community trade established by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1). Those arrangements are based on a new chargeable event, namely the intra-Community acquisition of goods, enabling the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 22 and case-law cited).

38Thus, the mechanism consisting, on the one hand, in an exemption, by the Member State of departure, of the supply giving rise to the intra-Community dispatch or transport, together with a right to deduction or reimbursement of the input VAT paid in that Member State and, on the other hand, in the taxation, by the Member State of arrival, of the intra-Community acquisition, was intended to ensure a clear demarcation of the sovereignty of the Member States in matters of taxation (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 23 and case-law cited).

39As regards, in particular, the rules pertaining to the taxation of acquisitions of new means of transport, it can be seen from recital 11 of the VAT Directive, that those rules, in addition to covering the allocation of authority to tax, aim to prevent distortions of competition between the Member States liable to result from the application of differing rates of tax (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 24).

40Article 138(2)(a) of the VAT Directive must be interpreted in the light of that background and those objectives.

41That provision requires Member States to exempt from VAT supplies of new means of transport which satisfy the substantive conditions which are listed in that article (see, by analogy, judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 46) exhaustively (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 59).

42In accordance with that provision, the Member States are to exempt the supply of new means of transport, dispatched or transported to the purchaser outside their respective territory but within the Union, by or on behalf of the vendor or the purchaser, for taxable persons, or non-taxable legal persons, whose intra-Community acquisitions of goods are not subject to VAT pursuant to Article 3(1) of the VAT Directive, or for any other non-taxable person.

43Thus, and as noted by the Advocate General in points 38 and 39 of his Opinion, the exemption of intra-Community supplies of new means of transport becomes applicable only when the right to dispose of that means of transport as owner has been transferred to the purchaser, the vendor establishes that those goods have been dispatched or transported to another Member State and, as a result of that dispatch or that transport, that means of transport has physically left the territory of the Member State of supply (see, by analogy, judgments of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 27, and of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 31 and the case-law cited).

44By contrast, having regard to the wording of Article 138(2)(a) of the VAT Directive, the exemption of an intra-Community supply of a new means of transport is in no way subject to the condition that the purchaser must be established or domiciled in the Member State of destination.

45The imposition of such a condition would, moreover, be contrary to the general scheme of that provision as well as to the background and objectives of the transitional VAT arrangements applicable to intra-Community trade, as mentioned in paragraphs 37 to 39 of the present judgment. Indeed, by refusing to exempt an intra-Community supply on the sole ground that the purchaser of the new means of transport is not established or domiciled in the Member State of destination, irrespective even of the fact that the substantive conditions of the exemption are met, the Member State of supply would be compelled to tax a transaction which, provided those conditions are met, should be taxed as an intra-Community acquisition in the Member State of destination. This would result in a double taxation, contrary to the principle of fiscal neutrality.

46That interpretation is also supported by the Court’s case-law concerning the classification of a transaction relating to a new means of transport as an intra-Community acquisition.

47Having regard to the particular nature of such a transaction, the Court has held that, in order to classify a transaction as an ‘intra-Community acquisition’, it is necessary to conduct an overall assessment of all the relevant objective evidence in order to determine whether the goods purchased have actually left the territory of the Member State of supply and, if so, in which Member State the final consumption will take place. Factors likely to be of significance in that respect, other than the process of transporting the goods in question, are, inter alia, the place of registration and usual use of the goods, the place of residence of the purchaser and the presence or absence of links between the purchaser and the Member State of supply or another Member State (see to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 41 to 45 and 50).

48It is apparent from that case-law that, although the place of domicile of the purchaser of the new means of transport is a relevant factor for the purpose of the overall assessment aimed at determining the place of final use of the means of transport, it is not capable of affecting, on its own, classification as an ‘intra-Community supply’ and its exemption in the circumstances laid down in Article 138(2)(a) of the VAT Directive.

49Furthermore, a condition relating to establishment or domicile of the purchaser in the Member State of destination also cannot be based on Article 131 of the VAT Directive.

50Although it is clear from that provision, that the Member States are to lay down the conditions for the application of the exemption of intra-Community supplies of goods with a view to ensuring the correct and straightforward application of those exemptions and to prevent any possible fraud, evasion and abuse, when they exercise their powers, Member States must, however, comply with the general principles of law which form part of the legal order of the European Union, which include, in particular, the principles of legal certainty and proportionality and fiscal neutrality (see, to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 35 and 37).

51The refusal to grant the benefit of the exemption laid down in Article 138(2)(a) of the VAT Directive on the sole ground that the purchaser does not reside in the Member State of destination would be contrary to the allocation of powers of taxation and capable of affecting the principle of tax neutrality. Moreover, as is apparent from paragraph 45 of the present judgment, such a refusal may result in the risk of a double taxation.

52In the light of the aforementioned considerations, the answer to the first question is that Article 138(2)(a) of the VAT Directive precludes national provisions from making the benefit of the exemption of an intra-Community supply of a new means of transport subject to the requirement that the purchaser of that means of transport must be established or domiciled in the Member State of destination of that means of transport.

The second question

53By its second question, the referring court asks, in essence, whether Article 138(2)(a) of the VAT Directive must be interpreted as meaning that the exemption of a supply of a new means of transport can be refused in the Member State of supply when that means of transport has been granted only temporary registration in the Member State of destination.

54As is apparent from the answer to the first question, the Member States must exempt supplies of new means of transport as long as the substantive conditions, listed exhaustedly in Article 138(2)(a) of the VAT Directive and set out in paragraphs 42 and 43 of the present judgment, are met.

55Registration of the new means of transport in the Member State of destination is not among those conditions.

56Consequently, the exemption in the Member State of supply cannot be refused on the sole ground that the registration in the Member State of destination is, like the tourist registration at issue in the main proceedings, a temporary registration granted for a period of 12 months.

57Inasmuch as the Commission and the Portuguese Government base an argument on the fact that such a registration in the Member State of destination cannot determine the Member State of final use of the means of transport at issue, it must be added that, as noted by the Advocate General in point 55 of his Opinion, the fact that such a registration is issued does not automatically mean that the place of final use is not located in that Member State of destination. As is apparent from the request for a preliminary ruling, such a registration may, indeed, be granted for a relatively significant period of time, in this case 12 months, which can be extended or followed by normal registration.

58For reasons similar to those set out in paragraph 51 of the present judgment, the conclusion reached in paragraph 56 of this judgment cannot be called into question by the fact that, pursuant to Article 131 of the VAT Directive, the Member States are to lay down the conditions with a view to ensuring the correct and straightforward application of those exemptions and preventing any possible fraud, evasion and abuse.

59In the light of the foregoing considerations, the answer to the second question is that Article 138(2)(a) of the VAT Directive must be interpreted as meaning that the exemption of a supply of a new means of transport cannot be refused in the Member State of supply on the sole ground that that means of transport has been granted only temporary registration in the Member State of destination.

The third question

60By its third question, the court asks, in essence, whether Article 138(2)(a) of the VAT Directive precludes the vendor of a new means of transport, transported by the purchaser to another Member State and temporarily registered in that State, from being required to pay VAT at a later stage when it is not established that the temporary registration scheme has ended and the VAT has or will be paid in the Member State of destination.

61In that regard, it must be noted that, first of all, as is apparent from paragraph 50 of the present judgment, the Member States, when they set the conditions for exemption of intra-Community supplies pursuant to Article 131 of the VAT Directive, must comply with, inter alia, the principles of legal certainty and proportionality as well as fiscal neutrality.

62Next, the Court has held that it is for the vendor to furnish proof that the conditions laid down for the application of the intra-Community supply exemption, including those imposed by the Member States for the purpose of ensuring the correct and straightforward application of the exemptions and for preventing any evasion, avoidance or abuse, are fulfilled (see, to that effect, judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 43 and the case-law cited).

63Finally, intra-Community transactions concerning new means of transport have a particular nature in that, inter alia, VAT relating to those transactions must also be paid by a non-taxable individual, who is not subject to the obligations relating to tax returns and accounting, so that a subsequent check of that individual is not possible and the individual, as final consumer, cannot claim a VAT deduction, even in the event of resale of a purchased vehicle, and therefore has a greater interest than a trader in avoiding the tax (see, to that effect, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 42 and 43).

64It follows that, as has been pointed out in paragraph 47 of the present judgment, to be able to classify a transaction concerning a new means of transport as ‘an intra-Community acquisition’, it is necessary to conduct an overall assessment of all the relevant objective evidence in order to determine whether the goods purchased have actually left the territory of the Member State of supply and, if so, in which Member State their final consumption will take place.

65In the event that the vendor has presented evidence to show transport or dispatch, by the purchaser, of the new means of transport to another Member State as well as its registration, even temporary, and its use in that Member State, the vendor cannot be obliged to provide conclusive evidence of the final and definitive nature of the use of that means of transport in the Member State of destination as well as the end of the tourist registration, if it be the case, after payment of VAT in that Member State.

66Indeed, first, in such circumstances, proof of the physical movement of that means of transport to its place of final use, which the vendor might be able to submit to the tax authorities, depends essentially on information that he receives for that purpose from the person acquiring the goods (see, by analogy, judgment of 16 December 2010, Euro Tyre Holding, C‑430/09, EU:C:2010:786, paragraph 37).

67Second, according to the case-law of the Court, the vendor cannot be required to provide evidence relating to the taxation of the intra-Community acquisition of the goods at issue in order to benefit from the exemption of the corresponding supply (judgment of 27 September 2012, VSTR, C‑587/10, EU:C:2012:592, paragraph 55). To make the exemption subject to the prior determination by the Member State of final use of the new means of transport would amount precisely to imposing such an obligation on the vendor. Indeed, that could impose on the vendor the burden of proving that definitive registration has been granted, which could occur, if it be the case, after payment of VAT by the purchaser.

68In those circumstances, an obligation such as that referred to in paragraph 65 of the present judgment does not lead to a correct and straightforward application of the exemptions.

69In the light of the aforementioned considerations, the answer to the third question is that Article 138(2)(a) of the VAT Directive precludes the vendor of a new means of transport, transported by the purchaser to another Member State and registered in that latter State temporarily, from being required to pay VAT at a later stage when it is not established that the temporary registration regime has ended and VAT has or will be paid in the Member State of destination.

The fourth question

70By its fourth question the referring court asks, in essence, whether Article 138(2)(a) of the VAT Directive as well as the principles of legal certainty, proportionality and protection of legitimate expectations preclude the vendor of a new means of transport, transported by the purchaser to another Member State and registered on a temporary basis in that State, from being required to pay VAT at a later stage when, having regard to the circumstances of the sale, the purchaser may have committed tax evasion, but it has not been established that the vendor cooperated in committing that fraud.

71In that regard, it must be noted that it is not contrary to EU law to require a trader 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 evasion (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 48 and the case-law cited). 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 should be refused a VAT exemption (judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 54).

72It 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 Santogal 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 (see, by analogy, judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 53). The Court may nevertheless provide it with all the guidance on points of interpretation which may be of assistance.

73Thus, it is important to indicate that, when carrying out an intra-Community transaction concerning a new means of transport, the vendor cannot rely solely on the intention expressed by the purchaser to transport the goods to another Member State for the purposes of their final use. On the contrary, and as the Advocate General noted in point 63 of his Opinion, the vendor must ensure that the purchaser’s expressed intention is supported by objective evidence (see, by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 47).

74It must be noted that, having regard to the evidence produced by the purchaser at the time of the sale, it could reasonably be considered that that purchaser resided in Spain and had undertaken in that State the steps necessary for the vehicle at issue in the main proceedings to be used there, be it under a specific regime. It is nevertheless for that court to verify whether Santogal displayed the diligence required to satisfy itself that the transaction carried out had not resulted in its participation in tax evasion. In this respect, it must be added that Santogal had to display a high degree of diligence, first, having regard to the value of the vehicle at issue and, second, given that, in the context of the acquisition of a new means of transport, an individual cannot claim a VAT deduction, even in the event of resale of a purchased vehicle, and therefore has a greater interest than a trader in avoiding the tax (judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 43). Furthermore, in the assessment to be carried out by the referring court, it is necessary to verify in particular whether, having regard to the evidence it possessed or could have possessed, Santogal was in a position to know that the temporary registration was intended merely for non-residents and that the purchaser had provided several addresses in Spain which could raise doubts regarding his actual residence.

75Besides the vendor’s behaviour, the Portuguese authorities’ behaviour must also be taken into account. On the assumption that Santogal had presented documents in order to benefit from the exemption of the transaction at issue and those documents had been examined and accepted by the competent authority, which it is for the referring court to verify, it must be noted that the principle of legal certainty precludes a Member State which has accepted, initially, the documents submitted by the vendor as evidence establishing entitlement to the exemption from subsequently requiring that vendor to account for the VAT on that supply, because of the purchaser’s fraud, of which the vendor had and could have had no knowledge (see, by analogy, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 50).

76Inasmuch as the referring court refers to the principle of the protection of legitimate expectations, it must be noted that, according to the Court’s settled case-law, the right to rely on that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him (judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 44 and the case-law cited). Nevertheless, a taxable person cannot have a legitimate expectation that a situation characterised by fraud will be maintained (see, by analogy, judgment of 29 April 2004, Gemeente Leusden and Holin Groep, C‑487/01 and C‑7/02, EU:C:2004:263, paragraph 77).

77In the light of the aforementioned considerations, the answer to the fourth question is that Article 138(2)(a) of the VAT Directive as well as the principles of legal certainty, proportionality and protection of legitimate expectations preclude the vendor of a new means of transport, transported by the purchaser to another Member State and registered on a temporary basis in that State, from being required to pay VAT at a later stage in the event of tax evasion by the purchaser, unless it has been established, in the light of objective evidence, that that vendor knew or ought to have known that the transaction was part of a fraud committed by the purchaser and he did not take all reasonable steps within his power to avoid participating in that fraud. It is for the referring court to verify whether this is the case on the basis of an overall assessment of all the evidence and circumstances of the case in the main proceedings.

Costs

78Since 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 (Ninth Chamber) hereby rules:

Article 138(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax precludes national provisions from making the benefit of the exemption of an intra-Community supply of a new means of transport subject to the requirement that the purchaser of that means of transport must be established or domiciled in the Member State of destination of that means of transport.

Article 138(2)(a) of Directive 2006/112 must be interpreted as meaning that the exemption of a supply of a new means of transport cannot be refused in the Member State of supply on the sole ground that that means of transport has been registered only temporarily in the Member State of destination.

Article 138(2)(a) of Directive 2006/112 precludes the vendor of a new means of transport, transported by the purchaser to another Member State and registered in that latter State temporarily, from being required to pay value added tax at a later stage when it is not established that the temporary registration regime has ended and value added tax has or will be paid in the Member State of destination.

Article 138(2)(a) of Directive 2006/112 as well as the principles of legal certainty, proportionality and protection of legitimate expectations preclude the vendor of a new means of transport, transported by the purchaser to another Member State and registered on a temporary basis in that State, from being required to pay value added tax at a later stage in the event of tax evasion by the purchaser, unless it has been established, in the light of objective evidence, that that vendor knew or ought to have known that the transaction was part of a fraud committed by the purchaser and he did not take all reasonable steps within his power to avoid his participation in that fraud. It is for the referring court to verify whether this is the case on the basis of an overall assessment of all the evidence and circumstances of the case in the main proceedings.

Signatures

[Signatures]

( *1 ) Language of the case: Portuguese.

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 1 February 2017 ¹

‛Reference for a preliminary ruling — Value added tax (VAT) — Exemptions — Intra-Community transactions — Supply of new means of transport — Conditions for the grant of the exemption to the vendor — Residence of the purchaser in the Member State of destination — Temporary registration in the Member State of destination — Risk of tax evasion — Good faith — Obligation of diligence on the part of the vendor’

I – Introduction

1The request for a preliminary ruling before the Court concerns the interpretation of Article 138(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’). ²

2In essence, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) seeks to ascertain whether, in the context of an intra-Community supply of a new vehicle, a Member State is allowed, first, to make the exemption from value added tax (VAT), provided for in Article 138(2)(a) of the VAT Directive, subject to the condition that the purchaser is established or domiciled in the Member State of destination of that vehicle, secondly, to refuse the exemption from VAT where the vehicle has been granted only temporary, tourist registration in the Member State of destination; and, thirdly, to request payment of the VAT by the vendor of the vehicle in circumstances which might indicate that the purchaser could have committed VAT fraud, without it however being established that the vendor cooperated with the purchaser to avoid paying VAT.

3Those questions were raised in the context of a dispute between the company Santogal M-Comércio e Reparação de Automóveis Lda (‘Santogal’), established in Portugal, and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) concerning that authority’s refusal to grant Santogal the benefit of the exemption from VAT, provided for in the Portuguese law transposing Article 138(2)(a) of the VAT Directive, in respect of Santogal’s supply of a new motor vehicle which was transported to Spain by its purchaser.

4More specifically, according to the request for a preliminary ruling, Santogal sold to an Angolan national, under an invoice dated 26 January 2010, a new vehicle for the sum of EUR 447665, which it had previously acquired from Mercedes-Benz Portugal and the entry of which into Portuguese territory had been recorded in a vehicle customs declaration of 25 June 2009 (‘the customs declaration’). ³

5In the course of the sale, the purchaser informed Santogal that he intended that vehicle to be for his personal use in Spain, where he was already established, and that he planned to take personal responsibility for transporting it to Spain, where he would arrange for it to undergo technical inspection and have it registered. He provided Santogal with his foreign national’s identification number (NIE) in Spain, a document issued on 2 May 2008 by the Ministério del Interior, Dirección General de la Policia y de la Guardia Civil — Comunidad Tui-Valencia (Ministry of the Interior, Directorate-General of Police and of the Civil Guard — Municipality of Tui-Valencia, Spain) confirming his entry in the central register of foreign nationals under that NIE, and with a copy of his Angolan passport. The address given by the purchaser in the course of the sale did not, however, match that stated on the document issued on 2 May 2008.

6In the light of those documents, Santogal took the view that the sale of the vehicle was exempt from VAT under Article 14(b) of the Regime do IVA nas Transações Intracomunitárias (RITI) (VAT Rules on Intra-Community Transactions), which is intended to transpose Article 138(2)(a) of the VAT Directive into Portuguese law.

7The vehicle was transported to Spain in a totally enclosed trailer.

8Following the technical inspection of the vehicle in Spain, the purchaser sent to Santogal, at the latter’s request, two documents to complete the sale. Those documents were a technical inspection certificate, issued on 11 February 2010, and a Spanish registration document, issued on 18 February 2010. That registration document, which provided an address for the purchaser which matched neither the address given by the purchaser at the time of the sale nor that stated on the document of 2 May 2008, related to a temporary, ‘tourist’ registration, due to expire on 17 February 2011.

9According to the information provided by the referring court, the assignment of a tourist registration number is governed in Spain by Real Decreto 1571/1993 por el que se adapta la Reglamentación de la matrícula turística a las consecuencias de la armonización fiscal del mercado interior (Royal Decree 1571/1993 adapting in Spain the legislation on tourist registration to the consequences of the tax harmonisation resulting from EU rules) of 10 September 1993 ⁴, and by Real Decreto 2822/1998 por el que se aprueba el Reglamento General de Vehículos (Royal Decree 2822/1998 approving the General Vehicle Regulations) of 23 December 1998. ⁵ Tourist registration is provisional and can normally be used for 6 months in every 12-month period, but may be extended by the authorities. Only persons not habitually resident in Spain may avail themselves of such registration.

10Further to information provided by Santogal in February 2011, Mercedes-Benz Portugal filed a supplementary vehicle customs declaration (‘the supplementary declaration’) to cancel the customs declaration of 25 June 2009 because the vehicle had been dispatched to Spain. The customs declaration was cancelled by the competent authorities on 3 March 2011.

11By letter of 24 October 2013, sent to the Direção de Finanças de Lisboa (Directorate of Finances, Lisbon, Portugal), the Direção de Serviços Antifraude Aduaneira (Directorate of Customs Anti-Fraud Services, Portugal) recommended an assessment of the VAT owing on the sale of the vehicle at issue. That directorate noted, inter alia, that the purchaser resided in Portugal, that he was registered in that country as the manager of a company and that he had had a tax identification number there for more than a decade. In addition, in response to a request for information, the Spanish authorities purportedly stated that the purchaser did not appear to be resident in Spain in 2010, had never submitted income returns in that country and had never been subject to VAT there.

12Santogal was subsequently the subject of a partial internal VAT audit for the month of January 2010. As part of that audit, the tax and customs authority produced a report in which it concluded that the sale of the vehicle was not covered by the exemptions provided for in Article 14 of the RITI, on the ground that, with regard to the exemption under point (b) of that provision, the purchaser did not reside in Spain or carry on any economic activity there. It further stated that, according to its databases, the applicant had a Portuguese taxpayer’s number assigned before 2001 and that his country of residence was Portugal.

13On 14 October 2014, the tax and customs authority issued an additional VAT assessment in the amount of EUR 89533 and a calculation of default interest for the period from 12 March 2010 to 20 August 2014 in the amount of EUR 15914.80. Santogal paid those amounts in December 2014.

14Santogal brought before the referring court an application for the cancellation of those assessments and a claim for damages. Before that court, it argued, inter alia, that the tax and customs authority’s interpretation of Article 14(b) of the RITI is contrary to Article 138(2) of the VAT Directive, which has direct effect. It also submitted that any VAT fraud committed by the purchaser could not be relied on as against Santogal.

15In the request for a preliminary ruling, the referring court begins by expressing doubts as to the purchaser’s place of residence at the time of the vehicle’s sale. In particular, that court notes that the purchaser’s habitual residence was not in Spain. However, it has not been established that he resided in Portugal at the time of that sale. Furthermore, the documents produced before the referring court contain no information concerning the payment of VAT on the vehicle in Spain or concerning the fate of the vehicle after the grant of the tourist registration. Nor has it been established that eligibility under the rules on tourist registration ceased in accordance with the detailed rules laid down in Spanish law.

16Next, the referring court observes that it has not been shown that Santogal cooperated with the purchaser to avoid paying VAT on the sale of the vehicle. On the contrary, it is of the view that it is clear from the evidence produced before it that Santogal ensured that the conditions for exemption from VAT were satisfied. It notes that neither the customs agents nor the customs authorities raised doubts as to whether the documents produced were sufficient to cancel the customs declaration and that the letter from the Directorate of Customs Anti-Fraud Services was based on additional information to which Santogal did not have access.

17Lastly, the referring court considers that the case-law of the Court, in particular the judgment of 7 December, R. (C‑285/09, EU:C:2010:742, paragraphs 40 to 46), does not provide the answers to the questions referred in the proceedings brought before it.

18In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Is it contrary to Article 138(2)(b) of [the VAT Directive] for provisions of national law [such as those contained in] Articles 1(e) and 14(b) of the [RITI] to require, for the grant of exemption from VAT on the supply for consideration of new means of transport, transported by the purchaser from national territory to another Member State, the purchaser to be established or domiciled in that Member State?

Is it contrary to Article 138(2)(b) of [the VAT Directive] for exemption from the tax in the Member State of commencement of the transport operation to be refused in circumstances in which the means of transport purchased has been transported to Spain, where it has been granted tourist registration, provisionally and subject to the [Spanish] fiscal rules …?

Is it contrary to Article 138(2)(b) of [the VAT Directive] to require the payment of VAT by the supplier of a new means of transport in circumstances in which it has not been demonstrated whether or not the tourist registration rules have ceased to apply because of one of the situations provided for in [Spanish law], or whether VAT has been or will be paid by reason of the disapplication of those rules?

Is it contrary to Article 138(2)(b) of [the VAT Directive] and the principles of legal certainty, proportionality and protection of legitimate expectations to require VAT to be paid by the supplier of a new means of transport dispatched to another Member State, in circumstances in which:

the purchaser, before dispatch, informs the supplier that he resides in the Member State of destination and produces to him a document proving that he has been assigned a [NIE] in that Member State, indicating a residence in that State different from the residence stated by the purchaser himself;

the purchaser subsequently gives to the supplier documents proving that the means of transport purchased has undergone a technical inspection in the Member State of destination and that he has been granted a tourist registration in that State;

it has not been demonstrated that the supplier cooperated with the purchaser to avoid paying VAT;

the customs authorities have not raised any objection to the cancellation of the customs declaration for the vehicle on the basis of the documents in the possession of the supplier?’

19Santogal, the Portuguese Government and the European Commission submitted written observations on those questions. In the light of the observations lodged, the Court considered that it had sufficient information and decided not to hold a hearing in accordance with Article 76(2) of its Rules of Procedure.

II – Analysis

A – Admissibility

20Although there is no doubt that the Court has jurisdiction to reply to the questions referred by the Tribunal Arbitral Tributário (Tax Arbitration Tribunal), since the Court has already made clear that, despite its name, that body possesses all the characteristics necessary in order to be regarded as a ‘court or tribunal of a Member State’ for the purposes of Article 267 TFEU, ⁶ the Portuguese Government pleads the inadmissibility of the reference for a preliminary ruling on three grounds, all of which I consider must be rejected for the reasons set out below.

21First, in my opinion, it would be excessively formalistic and contrary to the spirit of cooperation underlying the procedure laid down in Article 267 TFEU, the purpose of which is to provide a useful response to the national courts so that they are able to settle disputes pending before them, to uphold the Portuguese Government’s objection that the order for reference is inadmissible by virtue of the fact that it refers not to Article 138(2)(a) of the VAT Directive but to point (b) of that same provision. It is clear that, having regard to the grounds of the order for reference and the wording of the questions referred, which are concerned exclusively with the intra-Community supply of a new means of transport, which is specifically governed by Article 138(2)(a) of the VAT Directive, the reference to Article 138(2)(b) of the VAT Directive is a simple formal error, which is of no consequence as regards the comprehension and subject matter of the questions concerning an interpretation of EU law referred by the national court. Furthermore, that error was corrected in an email from one of the arbitrators at the referring court, which was annexed to the order for reference and therefore forms part of the case file in the main proceedings, which was acknowledged by all the parties who submitted observations before the Court. The possibility that such an informal correction may infringe national rules of civil procedure, as the Portuguese Government suggests, cannot render the order for reference inadmissible. The Court has already held in that regard that it is not, in principle, for it to determine whether such a decision was taken in accordance with the rules of national law governing organisation and procedure. ⁷ In view of those factors, there is nothing to prevent the Court from reformulating the questions referred to the effect that they relate to the interpretation of Article 138(2)(a) of the VAT Directive. ⁸

22Secondly, although it is true, as the Portuguese Government submits, that the order for reference is not a model of clarity as regards the summary of the facts of the main proceedings and even contains some inaccuracies and inconsistences, those shortcoming are not sufficient to rebut the presumption of relevance that attaches to questions referred for a preliminary ruling concerning the interpretation of EU law or to prevent the Court from answering them. ⁹ In my view, the Court has before it the factual and legal material necessary to give a useful answer to the questions submitted to it in the present case. Moreover, the parties which have submitted written observations, including, in the alternative, the Portuguese Government, were all able to set out their views on the content of the questions referred, having regard to the presentation of the facts and law contained in the order for reference.

23Thirdly and finally, it is, in my view, also not possible to uphold the ground of inadmissibility advanced by the Portuguese Government to the effect that the Court would be prompted to answer questions of a hypothetical nature, since the referring court has already found, in its order for reference, a defect in the statement of reasons for the tax and custom authority’s decision requiring the assessment of VAT which should entail the annulment of that decision, regardless of the response to be given by the Court to the request for a preliminary ruling.

24It is true that, in accordance with the task assigned to it under the system of cooperation instituted by Article 267 TFEU of contributing to the administration of justice in the Member States, the Court refuses to deliver advisory opinions on hypothetical questions. ¹⁰ In such cases, the request for interpretation of EU law made by the national court is not objectively required for that court to make a decision and resolve the dispute before it. In accordance with that case-law, the Court thus found to be inadmissible a reference for a preliminary ruling, made by a national court of first instance, seeking an interpretation of EU customs law in a situation in which the decision to recover a customs debt, which was challenged before that court, was intrinsically dependent on the prior decision in which that debt was found to exist, the annulment of which had been ordered by the court of last instance of the Member State in question. ¹¹ Since the referring court was only called upon to draw conclusions from the annulment of the recovery decision in order to resolve the dispute before it, it was no longer in a position, for the purposes of settling that dispute, to adopt a decision capable of taking account of the Court’s answers to the questions referred to it by the national court. The Court would therefore have had to give an advisory opinion on questions of a hypothetical nature.

25That is not however the position in the present case.

26First, it is by no means apparent from the order for reference that the defect in the statement of reasons identified by the referring court must entail the annulment in its entirety of the tax and customs authority’s decision, irrespective of the response to be given by the Court to the questions referred to it. The order for reference in fact tends to support the opposing view. Following the finding made concerning that defect in the statement of reasons, the referring court gave detailed consideration to EU law, and examined and dismissed other complaints advanced by Santogal also criticising the reasons stated in the tax and customs authority’s decision, setting out the reasons for dismissing certain evidence produced by Santogal with a view to demonstrating that the purchaser of the new vehicle satisfied the condition of residence in the Member State of destination of that vehicle, a requirement under the provisions of the RITI. That analysis would have been superfluous if the defect in the statement of reasons previously found to exist by the referring court could, on its own, entail the annulment in its entirety of the tax and customs authority’s decision.

27Secondly, and more fundamentally, the questions referred for a preliminary ruling relate directly and indirectly to the compatibility with EU law of the requirement laid down in the provisions of the RITI that the grant of the exemption from VAT is subject to the condition that the purchaser of the new vehicle resides in the Member State of destination of that vehicle. It is clear that the answer to those questions remains relevant to the resolution of the dispute in the main proceedings. It determines the legality both of the obligation on the supplier to provide proof of the satisfaction of the residence requirement laid down in the RITI and of the obligation on the tax and customs authority to examine that evidence and to provide an accurate statement of reasons for decisions finding, where appropriate, the evidence produced to be irrelevant or insufficient.

28For all those reasons, I propose that the Court should declare that the reference for a preliminary ruling is admissible.

B – Substance

29As I have stated in my introductory remarks, and in accordance with the reformulation of the questions referred for a preliminary ruling which I have proposed in point 21 of this Opinion, the referring court essentially wishes to ascertain whether, in the context of an intra-Community supply of a new vehicle, a Member State is allowed to: (a) make the exemption from VAT, provided for in Article 138(2)(a) of the VAT Directive, subject to the condition that the purchaser resides in the Member State of destination of that vehicle (first question); (b) refuse the exemption from VAT where the vehicle has been granted only provisional, tourist registration in the Member State of destination (second question); and (c) request payment of the VAT from the vendor of the vehicle in circumstances which might indicate that the purchaser could have committed VAT fraud, without it however being established that the vendor cooperated with the purchaser to avoid paying VAT (third and fourth questions).

30I shall consider in turn those three aspects of the questions raised by the referring court.

1. The right to make the exemption from VAT of an intra-Community supply of a new means of transport subject to the condition that the purchaser resides in the Member State of destination (first question)

31As the Court has already made clear on several occasions, the system established with effect from 1 January 1993, seeking the abolition of fiscal frontiers within the Community, is based on a new chargeable event, namely the intra-Community acquisition of goods, enabling the transfer of the tax revenue to the Member State in which final consumption of the goods supplied takes place. ¹²

32Accordingly, under Article 2(1)(b)(ii) of the VAT Directive, the intra-Community acquisition of a new means of transport by a person not subject to VAT is taxable within the territory of the Member State of destination, whereas, under Article 138(2)(a) of the VAT Directive, the intra-Community supply of that new means of transport is exempt in the Member State in which dispatch or transfer of the means of transport began.

33The arrangements in place involve transferring the tax revenue to the Member State in which final consumption of the goods supplied takes place and ensure the clear allocation of powers of taxation.

34The exemption of an intra-Community supply corresponding to an intra-Community acquisition thus enables double taxation and, therefore, infringement of the principle of fiscal neutrality inherent in the common system of VAT, to be avoided, ¹³ while the rules pertaining to the taxation of acquisitions of new means of transport also aim to prevent distortions of competition between the Member States liable to result from the application of differing rates of tax. ¹⁴

35Under the first paragraph of Article 20 of the VAT Directive, an intra-Community acquisition is defined as the transfer 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.

36Article 138(2)(a) of the VAT Directive provides that Member States are to exempt the supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the European Union.

37On account of the necessary correlation between an intra-Community supply and acquisition of goods, including of a new means of transport, since, in the view of the Court, they are, in fact, one and the same financial transaction, it has already been held that the first paragraph of Article 20 and Article 138(1) of the VAT Directive had to be interpreted in such a way as to confer on them identical meaning and scope. ¹⁵

38That approach must also apply to the relationships between the first paragraph of Article 20 and Article 138(2)(a) of the VAT Directive with regard to new means of transport, as, inter alia, the Commission agreed in its written observations. ¹⁶

39According to the case-law, it follows that the exemption of the intra-Community supply, which precedes the intra-Community acquisition, becomes applicable if three conditions are satisfied, namely when the power to dispose of the goods as owner has been transferred to the purchaser and the supplier establishes that those goods have been dispatched or transported to another Member State and when, as a result of that dispatch or that transport, they have physically left the territory of the Member State of supply. ¹⁷

40It is common ground in the main proceedings that the new vehicle was sold in Portugal by Santogal by the issue of an invoice to the purchaser, that the goods were transported to Spain by the purchaser himself and that the vehicle was registered in the latter Member State. The three conditions set out above therefore appear to be satisfied.

41In any event, regardless of whether or not all those conditions have been satisfied in the main proceedings, ¹⁸ it is clear that Article 138(2)(a) of the VAT Directive in no way makes the right of exemption of the intra-Community supply of a new means of transport subject to the requirement that the purchaser of that means of transport must have a place of residence in the Member State of destination. ¹⁹

42As the Portuguese Government acknowledges, the Court has clarified, in the context of the classification of a transaction as an intra-Community acquisition of a new means of transport, that the essential issue is to determine the Member State in which the final, permanent use of the means of transport will take place. ²⁰

43However, the additional requirement laid down by the provisions of the RITI, which consists in making the exemption of an intra-Community supply subject to the fact that the purchaser is resident in the Member State of destination, allows the Portuguese tax authorities to refuse that exemption, without even taking into account the substantive requirements laid down in Article 138(2)(a) of the VAT Directive, in particular without even considering whether those requirements are satisfied. The fact that the purchaser of a new means of transport does not reside in the Member State of destination cannot, however, automatically mean that the final, permanent use of that means of transport does not take place in that Member State, and that an intra-Community supply, followed by an intra-Community acquisition, has not taken place.

44Although it is true that, under Article 131 of the VAT Directive, the exemptions from VAT are to apply in accordance with conditions which the Member States are to lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse, those conditions cannot have the effect of undermining the allocation of powers of taxation between the Member States or the neutrality of VAT, which, as the Court has repeatedly stated, is a fundamental principle of the common system of VAT. ²¹

45The additional condition required by the provisions of the RITI, which makes the exemption of the intra-Community supply subject to the purchaser’s residence in the Member State of destination, has such an effect. It allows Portugal, regardless of whether or not the three conditions listed in point 39 of this Opinion have been satisfied, to tax the intra-Community supply of a new means of transport, the acquisition of which is subject to the payment of VAT in the Member State of destination. That requirement therefore fails to take account of Article 138(2)(a) of the VAT Directive, the allocation of powers of taxation between the Member States and the principle of fiscal neutrality.

46That position clearly does not mean that the purchaser’s place of residence is irrelevant when establishing that the substantive requirements under the VAT Directive applicable to the exemption of an intra-Community supply are satisfied. The Court has acknowledged that, in order to determine whether the goods purchased have actually left the territory of the Member State of supply and, if so, in the territory of which Member State the final consumption must take place, it is necessary to conduct an overall assessment of all the objective evidence, including, as an element to which significance may be attached, the place of residence of the purchaser. ²²

47Ultimately, in my view, that approach simply supports the interpretation that the residence of the purchaser of the goods in the Member State of destination cannot, as such, constitute a condition for the grant of the exemption of an intra-Community supply. Similarly, it confirms that the purchaser’s non-residence in that Member State cannot constitute irrefutable proof that the goods have not physically left the territory of the Member State of supply to be used permanently in the Member State of destination. ²³

48Like Santogal and the Commission, I therefore take the view that Article 138(2)(a) of the VAT Directive precludes a Member State from making the exemption of an intra-Community supply of a new means of transport subject to the condition that the purchaser of that means of transport resides in the Member State of destination of the transaction.

2. The right to refuse the exemption from VAT where the new means of transport has been granted only temporary, tourist registration in the Member State of destination (second question)

49By its second question, the referring court asks whether it is possible to refuse to grant the exemption from VAT to the vendor of a new vehicle where it is shown that that vehicle has been granted only temporary, tourist registration in the Member State of destination.

50As is borne out by the statement of reasons in the order for reference, that question arises in the context of the examination of the substance of the tax and customs authority’s demonstration that the purchaser did not reside in the Member State of destination. The referring court makes the point that, under the relevant Spanish law to which the tax and customs authority refers, the tourist registration of a vehicle is issued solely to persons who are not resident in Spain.

51In other words, the criterion of the vehicle’s temporary registration in Spain was used by the tax and customs authority to demonstrate that the purchaser did not reside in that Member State and did not therefore satisfy the requirement of residence laid down in the provisions of the RITI governing the vendor’s right of exemption from VAT.

52However, as I have explained in my analysis of the first question referred for a preliminary ruling, that requirement laid down in the provisions of the RITI is contrary to Article 138(2)(a) of the VAT Directive.

53In those circumstances, accepting that the criterion of the temporary registration of the vehicle in the Member State of destination may form the basis of the refusal to grant the exemption from VAT to the vendor of that new means of transport would, indirectly, amount to validating the condition, laid down in the provisions of the RITI, which makes such exemption subject to the purchaser’s residence in the Member State of destination.

54That being the case, as part of the overall assessment of the objective evidence on the basis of which a transaction may be classified as an ‘intra-Community supply’, the temporary nature of the registration issued in the Member State of destination may, however, be significant as regards whether or not the condition identified by the Court in the judgment 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 50), concerning the place of final, permanent use of the new means of transport, has been satisfied.

55Nonetheless, in my view, it would be contrary to the allocation of powers of taxation and to the principle of the neutrality of VAT to allow the Member State of supply of that new means of transport, solely on the basis of that one factor, to demand payment of VAT from the vendor. As the main proceedings demonstrate on the basis of the information provided in the order for reference, temporary registration such as that issued in Spain may be granted for a significant period of 12 months, which — it appears — may not only itself be extended but may also expire once the vehicle is granted ordinary registration in Spain following payment of the relevant charges. Accordingly, the mere fact that a new vehicle has been granted temporary registration in the Member State of destination does not mean ipso jure that, once the temporary registration period has expired, the place of final, permanent use of that vehicle will not be within the territory of that Member State, and that it should be concluded that that vehicle has not been the subject of an intra-Community supply.

56I am therefore of the view that, regardless of the facts specific to a particular case, a Member State cannot refuse to grant the exemption from VAT to the vendor of a new vehicle, which has been transported to another Member State by its owner, simply because that vehicle was provisionally registered in that latter Member State.

3. The right to demand payment of VAT from the vendor of the new means of transport in circumstances which might indicate that the purchaser could have committed VAT fraud, without it however being established that the vendor cooperated with the purchaser to avoid paying VAT (third and fourth questions)

57By its third question, the referring court asks whether a vendor may be refused the exemption from VAT if it is unclear whether or not eligibility under the system of provisional registration has ceased for one of the reasons laid down in the law of the Member State of destination, or whether VAT has been paid, or will be paid, at the end of the eligibility under that system. In its fourth question, it also sets out a number of other circumstances which suggest the uncertainty surrounding the place of final consumption of the new vehicle sold by Santogal, which might indicate that the purchaser could have committed VAT fraud, whilst revealing that Santogal took certain steps with regard to the purchaser and the Portuguese authorities following the sale of the vehicle without it being established that that company cooperated with the purchaser to avoid paying VAT.

58Those questions, which may be examined together, are essentially concerned with both the burden of proof and the evidence relating to the final, permanent use of the new means of transport in the Member State of destination which the tax authorities of the Member State of supply may require the vendor to produce in order to benefit from the exemption from VAT applicable to the intra-Community supply of such a means of transport.

59With regard to the burden of proof, the Court has already had occasion to hold, in the context of the provision of the Sixth Directive which is now reproduced in Article 138(1) of the VAT Directive, that it is for the supplier of the goods to furnish the proof that the conditions laid down for the application of that provision, including those imposed by the Member States for the purpose of ensuring the correct and straightforward application of the exemptions and for preventing any evasion, avoidance or abuse, are satisfied. ²⁴ That case-law appears to me to be wholly applicable to the interpretation and application of Article 138(2)(a) of the VAT Directive.

60That case-law likewise requires that the supplier act in good faith and take every measure which can reasonably be required of him to ensure that the transaction that he effects does not lead to his participation in tax evasion. ²⁵

61In the context of the sale of a new vehicle, which requires — as I have already stated — an overall assessment of all the objective evidence in order for a transaction to be classified as an intra-Community supply or acquisition, it falls to the supplier, in order to preclude any participation in tax fraud, to collect all the evidence which he is reasonably able to obtain so as to ensure fulfilment of the conditions relating to the intra-Community supply of that vehicle, including in particular that concerned with its final, permanent consumption in the Member State of destination.

62The vigilance of the supplier of a new means of transport is all the more necessary in view of the ‘particular nature’ of the intra-Community transactions involving such goods. ²⁶ First, the classification of the transaction is made more complex because the VAT on that transaction must also be paid by a non-taxable individual, who is not subject to the obligations relating to tax returns and accounting, so that a subsequent check of that individual is not possible. Secondly, the individual, as final consumer, cannot claim a VAT deduction, even in the event of resale of a purchased vehicle, and therefore has a greater interest than a trader in avoiding that tax. ²⁷

63It is for that reason that, although, admittedly, in the case of such transactions, the supplier may legitimately rely on the purchaser’s intentions at the time of the acquisition, those intentions should be supported by objective evidence, ²⁸ which may itself be subject to review by the tax authorities and, where appropriate, the courts of the Member State of supply.

64However, the referring court rightly points out that the measures to prevent any possible fraud, evasion and abuse which Member States have the power to impose on the supplier of the goods must comply with the general principles of law, including in particular the principles of legal certainty and proportionality, ²⁹ and, moreover, must not undermine the neutrality of VAT. ³⁰

65It is therefore understandable and justified for loss of the right of exemption from VAT to be ordered only in exceptional situations, namely where the vendor has been led to participate in VAT fraud or where non-compliance with one or more formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements governing the grant of that exemption have been satisfied. ³¹

66It is in accordance with that case-law that, in the context of the classification of a transaction as an intra-Community acquisition of goods and the determination of the purchaser’s status as a taxable person, the Court held that a supplier who has taken all the measures which can reasonably be required of him and whose participation in VAT fraud is unsupported by any evidence could not be required to provide evidence of the taxation of the intra-Community acquisition of the goods in question in order to be exempt under Article 138(1) of the VAT Directive. ³²

67In the present case, in which the substantive condition at issue concerns the place of final, permanent consumption of the new means of transport and the referring court states that it has not been demonstrated that the vendor cooperated with the purchaser to avoid paying VAT, it is for that court to consider whether the vendor, having acted in good faith, took all the measures which could reasonably be required of him to show that the transaction concluded by him was indeed an intra-Community supply, within the meaning of Article 138(2)(a) of the VAT Directive, which justified his right to the exemption.

68The objective of preventing tax fraud must mean that the suppliers of new means of transport may be subject to stringent requirements vis-à-vis fulfilment of the conditions relating to the intra-Community supply of that type of goods, taking into account the particular nature of that transaction and the associated risks. ³³

69The fact that a supplier has not actively (or intentionally) cooperated with the purchaser to avoid paying VAT does not exempt the supplier from his obligation, for preventive purposes, to act in good faith and to take the reasonable steps required to ensure that fraud cannot be committed by the purchaser.

70If that obligation proves not to be fulfilled, I am of the view that there may be justification for requiring the supplier to pay the VAT a posteriori.

71That approach is not contrary to the rules applicable to intra-Community trade, which tend to divide the risk of the non-payment of VAT between the supplier and the purchaser. ³⁴ In my view, the aim is not to place liability for the payment of VAT a posteriori exclusively on the supplier of new means of transport, since the tax authorities of the Member State of supply can, of course and as a matter of priority, demand such payment from the purchaser, where the purchaser is at the source of the breach of the substantive conditions governing an intra-Community acquisition or supply of such goods. ³⁵

72In the context of such supplies, which entail the transfer of the power of taxation to the Member State of destination, the intention is simply to encourage suppliers to be particularly vigilant to the risk that the transaction may avoid all taxation and, by emphasising the profit-making nature of the transaction, ³⁶ to prevent them from being prompted to ‘close their eyes’ or adopt an overly complaisant attitude towards their co-contractor.

73In the main proceedings, it is therefore for the referring court to ascertain whether Santogal, acting in good faith, took all reasonable measures within its power to ensure that the supply of the new vehicle to the purchaser would not result in a breach of the substantive conditions required to classify that transaction as the intra-Community supply of a new means of transport.

74That response might be sufficient for the purposes of the interpretation sought by the referring court. However, with a view to giving that court a response which will help it to resolve the dispute brought before it, I consider that it would be appropriate for the Court to be able to provide it with certain clarifications regarding the evidence which may or may not be required of the supplier, in accordance with the principles of EU law. ³⁷

75First of all, in order to enjoy the exemption from VAT in the Member State of supply, the vendor of a new means of transport cannot be required — as the referring court nevertheless seems to consider in its third question referred for a preliminary ruling — to produce conclusive evidence that the VAT has indeed been paid on the acquisition of those goods in the Member State of destination. Such a requirement would run counter to a number of principles, including the principles of proportionality and fiscal neutrality, and cannot be regarded as a reasonable measure, within the meaning of the case-law of the Court, which may be required of the vendor in the course of the transaction, especially where, as in the main proceedings, it appears that the authorities of the Member State of supply are, even after an investigation conducted on the basis of information which the vendor could not access, unable clearly to identify the purchaser’s location and determine the fate of the vehicle.

76This does not mean that the vendor is released from the obligation of taking steps to ask the purchaser about the fate of the new means of transport supplied and, therefore, about the payment of VAT in the Member State of destination. This is, however, in my view, an obligation to use best endeavours rather than an obligation to achieve a specific result. The vendor relies primarily on the purchaser’s cooperation and the evidence that the purchaser agrees to provide to the vendor. It would therefore be unreasonable for the Member State of supply to make the exemption of the intra-Community supply subject to the vendor’s provision of evidence that the purchaser has paid the VAT in the Member State of destination. However, it is important that the vendor show that, in all good faith, he took the steps which can reasonably be required of him to ensure, with regard to the purchaser, that the new means of transport supplied will be put to final, permanent use in the Member State of destination.

77Next, it appears to me to be wholly impossible to require the vendor, in general, to undertake a thorough examination of the conditions for registration of the new means of transport in the Member State of destination. Even if, as in the main proceedings, the vendor is a professional in the vehicle trade, such a requirement would be unreasonable because it would presuppose that persons subject to VAT in one Member State have a good grasp of the law and practice of other Member States.

78However, regardless of the vendor’s knowledge of the law of the Member State of destination, clear and consistent information that the registration has been issued temporarily in the Member State of destination must, as the Commission suggests, prompt a professional in the vehicle trade to ask himself whether or not, once the provisional registration period has expired, the vehicle will be put to final, permanent use in the Member State of destination and thus be subject to the payment of VAT in that Member State. In my view, such a professional must therefore take all the reasonable measures within his power to ensure that the purchaser has the intention of complying with that condition, and that intention must be supported by objective evidence, in accordance with the case-law. ³⁸

79In the present case, it appears, according to the information provided by the referring court and the elements highlighted by the Commission in its written observations, that Santogal, when it had information a few days after the sale that the registration of the vehicle in Spain had been issued only on a temporary basis for one year, failed both to ask the purchaser about his intention to use the vehicle in Spain following expiry of the provisional registration and to request that he provide any evidence capable of confirming his intention. In addition, the referring court makes no mention of any steps undertaken by Santogal in relation to the purchaser during that one-year period which would have enabled that company to determine whether the vehicle was in fact going to remain in Spain and be put to final, permanent use in that Member State.

80Furthermore, as the Commission also points out in its written observations, the referring court provides no information at all concerning the content of the documentation sent by Santogal to the Portuguese tax and customs authorities a few days before the expiry of the provisional registration of the vehicle in support of its application for cancellation of the customs declaration and for a declaration of the vehicle’s dispatch to Spain. In particular, the referring court provides no information from which it is possible to ascertain whether that documentation included documents proving the final, permanent use of the vehicle in the Member State of destination.

81Such information is nonetheless essential, as the Commission rightly points out. It would be contrary to the principle of legal certainty for a Member State which initially accepted the documents produced by a supplier as documents supporting the right of exemption from VAT to be able subsequently to require that supplier to pay the VAT on the supply, even though that supplier acted in good faith and took all reasonable measures within his power to ensure that the transaction concluded by him satisfied all the substantive conditions for an intra-Community supply, within the meaning of Article 138(2)(a) of the VAT Directive.

82In those circumstances, it is for the referring court to determine whether, in all good faith, Santogal took steps with regard to the purchaser to ensure that he had the intention, after the provisional registration of the new vehicle expired in Spain, to continue to put that vehicle to final, permanent use in the Member State of destination, which intention must be supported by objective evidence including, inter alia, the documents provided by Santogal to the Portuguese tax and customs authority in support of its application for cancellation of the customs declaration. If that is the case, the right of exemption from VAT may not be refused, even if Santogal has failed to correct in good time the invoice initially issued and has not attempted to recover the VAT from the purchaser. Otherwise, I am of the view that, unless the Member State of supply is able to demand the payment of VAT from the purchaser a posteriori, which is a matter to be determined by the referring court, that Member State is justified in requiring Santogal to pay the VAT a posteriori, with a view to preventing the transaction from avoiding all taxation.

III – Conclusion

Conclusion

83In the light of all the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal) be answered as follows:

Article 138(2)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it precludes a Member State from making the exemption of an intra-Community supply of a new means of transport subject to the condition that the purchaser of that means of transport resides in the Member State of destination of the transaction.

Regardless of the circumstances specific to a particular case, Article 138(2)(a) of Directive 2006/112 must be interpreted as meaning that it precludes a Member State from refusing to grant the exemption from value added tax to the vendor of a new means of transport, which has been transported to another Member State by its owner, simply because that vehicle was registered temporarily in that latter Member State.

Article 138(2)(a) of Directive 2006/112 and the principles of legal certainty, proportionality and fiscal neutrality must be interpreted as meaning that they preclude a Member State from refusing to grant the exemption from value added tax to the vendor of a new means of transport where that vendor has not participated in tax fraud, has acted in good faith and has taken all the reasonable measures within his power to ensure that the transaction which he concluded satisfies all the substantive conditions for an intra-Community supply, within the meaning of that article, in particular the condition relating to the final, permanent consumption of the new means of transport in the Member State of destination.

It is for the referring court to determine whether the vendor in the main proceedings complied with the requirements of good faith and reasonable diligence, in the light, inter alia, of the steps which it took with regard to the purchaser and of the supporting documents produced by him and making it possible to determine that he ensured that the new means of transport would be put to final, permanent use in the Member State of destination following the expiry of the temporary registration period in that Member State. If that is the case, the vendor cannot be refused the right of exemption from value added tax. Otherwise, unless the Member State of supply is able to demand payment of the value added tax from the purchaser a posteriori, that Member State is justified in requiring the vendor of the new means of transport to pay the value added tax a posteriori with a view to preventing the transaction from avoiding all taxation.

¹ Original language: French.

² OJ 2006 L 347, p. 1.

³ According to the documents before the Court, the vehicle is a luxury sports vehicle of the model SLR McLaren, produced in a limited series.

⁴ BOE No 221 of 15 September 1993, p. 27037.

⁵ BOE No 22 of 26 January 1999, p. 3440.

⁶ See the judgment of 12 June 2014, Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 34). Since then, the Court has also ruled on the substance of two other references for a preliminary ruling made by that same arbitration tribunal dealing with taxation: see judgments of 11 June 2015, Lisboagás GDL (C‑256/14, EU:C:2015:387), and of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690).

⁷ See, to that effect, inter alia, judgments of 3 March 1994, Eurico Italia and Others (C‑332/92, C‑333/92 and C‑335/92, EU:C:1994:79, paragraph 13), and of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 35).

⁸ For the sake of absolute completeness, I would add that if, as in this case, the information in the case file communicated to the Court so permits, the Court’s power to reformulate questions referred for a preliminary ruling also makes it possible to avert the otherwise probable repetition of the request for a preliminary ruling. It therefore also rests on reasons of economy of procedure. See, to that effect, my Opinions in Gysen (C‑449/06, EU:C:2007:663, point 43), and in de Lobkowicz (C‑690/15, EU:C:2016:926, footnote 14).

⁹ For the record, in accordance with the settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance, which may be rebutted in particular where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it: see, inter alia, judgment of 18 December 2014, Schoenimport Italmoda Mariano Previti and Others (C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraphs 31 and 36).

¹⁰ See, inter alia, to that effect, judgment of 24 October 2013, Stoilov i Ko (C‑180/12, EU:C:2013:693, paragraphs 38 and 47 and the case-law cited).

¹¹ See judgment of 24 October 2013, Stoilov i Ko (C‑180/12, EU:C:2013:693, paragraphs 39 to 47).

¹² See, to that effect, inter alia, judgments of 6 April 2006, EMAG Handel Eder (C‑245/04, EU:C:2006:232, paragraph 27); of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraphs 21 and 22); and of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 22).

¹³ See judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 25).

¹⁴ See, to that effect, judgments of 6 April 2006, EMAG Handel Eder (C‑245/04, EU:C:2006:232, paragraphs 31 and 40), and of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 24).

¹⁵ See judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 28 and the case-law cited).

¹⁶ Furthermore, the facts giving rise to the judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693) related to the intra-Community acquisition of a means of transport (a sailing boat) regarded as ‘new’ by the national court.

¹⁷ See judgments of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 42); of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 27); of 7 December 2010, R. (C‑285/09, EU:C:2010:742, paragraph 41); and of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 31).

¹⁸ That issue is considered in points 57 to 82 of this Opinion.

¹⁹ See, by analogy, judgment of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 54) with regard to the interpretation of Article 28c(A)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 98/80/EC of 12 October 1998 (OJ 1998 L 281, p. 31), the content of which is identical to that of Article 138(1) of the VAT Directive.

²⁰ See judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 50).

²¹ See, inter alia, judgments of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 46); of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 44); and, with regard to an intra-Community transfer, of 20 October 2016, Plöckl (C‑24/15, EU:C:2016:791, paragraph 36).

²² See, to that effect, the judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraphs 44 and 45).

²³ In the present case, the fact that, before and after the sale of the new vehicle, the purchaser provided three different addresses in Spain has no bearing on the question whether that vehicle was used (or consumed) finally and permanently in that Member State.

²⁴ See, inter alia, judgment of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 43).

²⁵ See, inter alia, judgments of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 38); and of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 52).

²⁶ See judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 42).

²⁷ Judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 43).

²⁸ See, to that effect, judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 47).

²⁹ See, to that effect, inter alia, judgments of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 35), and of 6 September 2012, Mecsek-Gabona (C‑273/11, EU:C:2012:547, paragraph 36).

³⁰ See, to that effect, inter alia, judgments of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 37), and of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 44).

³¹ See, to that effect, inter alia, judgment of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 46).

³² See judgment of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraphs 52, 53 and 55).

³³ See point 63 of this Opinion. I note that the Court has already found in the judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 58) that the objective of preventing tax evasion sometimes justifies stringent requirements as regards suppliers’ obligations. This is the case, in my view, in the particular situation of the intra-Community supply of new means of transport intended for consumers.

³⁴ With regard to the principle of the sharing of the burden of the payment of VAT, see the judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 57).

³⁵ See, to that effect, judgment of 27 September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph 67).

³⁶ In the present case, I note that the vehicle is one of a limited series and was sold for almost EUR 450000.

³⁷ Since no provision of the VAT Directive lists the evidence which taxable persons are required to adduce in order to be exempted from VAT, that question falls, in principle, within the competence of the Member States (see, to that effect, inter alia, judgments of 27 September 2012, VSTR (C‑587/10, EU:C:2012:592, paragraph 42), and of 20 October 2016, Plöckl (C‑24/15, EU:C:2016:791, paragraph 35)).

³⁸ Judgment of 18 November 2010, X (C‑84/09, EU:C:2010:693, paragraph 47).