C-495/17 Cartrans Spedition

JUDGMENT OF THE COURT (Seventh Chamber)

8 November 2018 ( *1 )

(Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Exemptions — Article 146(1)(e) and Article 153 — Road transport operations directly connected with the exportation of goods — Supply of services by intermediaries taking part in such operations — Rules on proof that the goods were exported — Customs declaration — TIR carnet)

In Case C‑495/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Prahova (Regional Court, Prahova, Romania), made by decision of 14 February 2017, received at the Court on 14 August 2017, in the proceedings

Cartrans Spedition SRL

v

Direcţia Generală Regională a Finanţelor Publice Ploieşti — Administraţia Judeţeană a Finanţelor Publice Prahova,

Direcţia Regională a Finanţelor Publice Bucureşti — Administraţia Fiscală pentru Contribuabili Mijlocii,

THE COURT (Seventh Chamber),

composed of A. Prechal (Rapporteur), President of the Third Chamber, acting as President of the Seventh Chamber, C. Toader and A. Rosas, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

Cartrans Spedition SRL, by R. Ioniţă and R. Popescu, acting as Agents,

the Romanian Government, initially by R.H. Radu, and subsequently by C.‑R. Canţăr, C.‑M. Florescu and O.‑C. Ichim, acting as Agents,

the European Commission, by L. Lozano Palacios and L. Radu Bouyon, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 12 July 2018,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 146(1)(e) and Article 153 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 proceedings between, on the one hand, Cartrans Spedition SRL (‘Cartrans’) and, on the other, the Direcția Generală Regională a Finanțelor Publice Ploiești — Administrația Județeană a Finanțelor Publice Prahova (Regional Directorate-General of Public Finances of Ploiești — Regional Public Finance Administration of Prahova, Romania) and the Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Mijlocii (Bucharest Regional Directorate-General of Public Finances — Tax authority for medium-sized taxpayers, Romania) concerning the refusal of the tax authorities to exempt from value added tax (VAT) several transport operations carried out for the exportation of goods to third countries, in which Cartrans had been involved.

Legal context

EU law

The VAT Directive

3Article 131 of the VAT Directive, which features in Chapter 1, headed ‘General provisions’, of Title IX, headed ‘Exemptions’, states:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community 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.’

4Article 146(1) of the VAT Directive, which features in Chapter 6, headed ‘Exemptions on exportation’, of Title IX of the VAT Directive, states:

‘Member States shall exempt the following transactions:

the supply of goods dispatched or transported to a destination outside the [European Union] by or on behalf of the vendor;

…

the supply of services, including transport and ancillary transactions, but excluding the supply of services exempted in accordance with Articles 132 and 135, where these are directly connected with the exportation or importation of goods ...’

5The first paragraph of Article 153 of the VAT Directive, which is to be found in Chapter 9, headed ‘Exemptions for the supply of services by intermediaries’, of Title IX, states:

‘Member States shall exempt the supply of services by intermediaries, acting in the name and on behalf of another person, where they take part in the transactions referred to in Chapters 6, 7 and 8, or in transactions carried out outside the [European Union].’

The Customs Code

6Under Article 4(16) and (17) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13), (‘the Customs Code’):

‘For the purposes of this Code, the following definitions shall apply:

…

“Customs procedure” means:

…

transit;

…

exportation.

“Customs declaration” means the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure’.

7Article 59 of the Customs Code, which features in Section 1, headed ‘Placing of goods under a customs procedure’, of Chapter 2, headed ‘Customs procedures’, of Title IV, headed ‘Customs-approved treatment or use’, provides:

‘1. All goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure.

2. Community goods declared for an export, outward processing, transit or customs warehousing procedure shall be subject to customs supervision from the time of acceptance of the customs declaration until such time as they leave the customs territory of the [European Union] or are destroyed or the customs declaration is invalidated.’

8Article 91 of the Customs Code, which features in point I, headed ‘General provisions’, of part B, headed ‘External transit’, of Section 3, headed ‘Suspensive arrangements and customs procedures with economic impact’, of that Chapter 2, states:

‘1. The external transit procedure shall allow the movement from one point to another within the customs territory of the [European Union] of:

…

Community goods, in cases and on conditions determined in accordance with the committee procedure, in order to prevent products covered by or benefiting from export measures from either evading or benefiting unjustifiably from such measures.

2. Movement as referred to in paragraph 1 shall take place:

…

under cover of a TIR carnet (TIR Convention) provided that such movement:

began or is to end outside the [European Union];

…’

9Article 161(1) and (2) of the Customs Code, which features in Section 4, headed ‘Export’, of Chapter 2, provides:

‘1. The export procedure shall allow Community goods to leave the customs territory of the [European Union].

Exportation shall entail the application of exit formalities including commercial policy measures and, where appropriate, export duties.

2. ... all Community goods intended for export shall be placed under the export procedure.’

10Article 182a(1) of the Customs Code, to be found in Title V, headed ‘Goods leaving the customs territory of the [European Union]’, provides:

‘Goods leaving the customs territory of the [European Union], with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory, shall be covered either by a customs declaration or, where a customs declaration is not required, a summary declaration.’

11Under Article 182b(1) and (2) of the Customs Code:

‘1. Where goods leaving the customs territory of the [European Union] are assigned to a customs approved treatment or use for the purpose of which a customs declaration is required under the customs rules, this customs declaration shall be lodged at the customs office of export before the goods are to be brought out of the customs territory of the [European Union].

2. Where the customs office of export is different from the customs office of exit, the customs office of export shall immediately communicate or make available electronically the necessary particulars to the customs office of exit.’

The TIR Convention

12The Customs Convention on the international transport of goods under cover of TIR carnets, signed in Geneva on 14 November 1975 and approved on behalf of the European Economic Community by Council Regulation (EEC) No 2112/78 of 25 July 1978 (OJ 1978 L 252, p. 1), entered into force for the European Economic Community on 20 June 1983 (OJ 1983 L 31, p. 13). All of the Member States are also parties to that convention.

13In its amended and consolidated version published by Council Decision 2009/477/EC of 28 May 2009 (OJ 2009 L 165, p. 1) (‘the TIR Convention’), Article 1 of the TIR Convention states:

‘For the purposes of this Convention:

the term “TIR transport” shall mean the transport of goods from a Customs office of departure to a Customs office of destination under the procedure, called the TIR procedure, laid down in this Convention;

the term “TIR operation” shall mean the part of a TIR transport that is carried out in a Contracting Party from a Customs office of departure or entry (en route) to a Customs office of destination or exit (en route);

…

the term “discharge of a TIR operation” shall mean the recognition by Customs authorities that the TIR operation has been terminated correctly in a Contracting Party. This is established by the Customs authorities on the basis of a comparison of the data or information available at the Customs office of destination or exit (en route) and that available at the Customs office of departure or entry (en route);

…

the term “holder” of a TIR Carnet shall mean the person to whom a TIR Carnet has been issued in accordance with the relevant provisions of the Convention and on whose behalf a Customs declaration has been made in the form of a TIR Carnet indicating a wish to place goods under the TIR procedure at the Customs office of departure. He shall be responsible for presentation of the road vehicle, the combination of vehicles or the container together with the load and the TIR Carnet relating thereto at the Customs office of departure, the Customs office en route and the Customs office of destination and for due observance of the other relevant provisions of the Convention;

…’

14Article 4 of the TIR Convention provides that goods carried under the TIR procedure are not to be subjected to the payment or deposit of import or export duties and taxes at customs offices en route.

15In order for those facilities to be applied, the TIR Convention requires, in particular, as follows from Article 3(b) thereof, that the goods be accompanied throughout the transport operation by a standard document, namely the TIR carnet, which enables the regularity of the operation to be checked.

16The TIR carnet consists of a set of sheets each comprising vouchers No 1 and No 2, with the corresponding counterfoils, on which all the necessary information is set out, one pair of vouchers being used for each territory crossed. At the start of the transport operation, voucher No 1 is left with the customs office of departure. Discharge takes place once voucher No 2 has been returned from the customs office of exit in the same customs territory. This procedure is repeated for each territory crossed, each pair of vouchers in the same carnet being used in turn.

The Transit Manual (for the TIR procedure)

17The Transit Manual for the TIR procedure (document TAXUD/1873/2007) was drawn up by the European Commission within the Customs Code Committee (Transit Section — TIR). Article 1(2) in Part IX of that manual provides:

‘... the TIR carnet is a customs declaration for transport of goods. It provides proof of the existence of the guarantee. … A TIR carnet … is taken into use in the country of departure and enables the customs control in the Contracting Parties of departure, transit and destination’.

Romanian Law

18Article 143(1)(c) of Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 establishing the Tax Code) of 22 December 2003 (Monitorul Oficial al României, Part I, No 927 of 23 December 2003), in the version in force at the material time (‘the Tax Code’), provides:

‘The following shall be exempt from tax:

…

supplies of services, including transport and services ancillary to transport, other than those provided for in Article 141, which are directly connected with the export of goods’.

19In accordance with Article 144a of the Tax Code:

‘Services provided by intermediaries acting in the name and on behalf of another person shall be exempt from tax when those services are provided in the context of the exempt transactions referred to in Articles 143 and 144 … ’

20Article 4(2) of Ordinul nr. 2222/2006 al ministrului finanțelor publice privind aprobarea Instrucțiunilor de aplicare a scutirii de taxă pe valoarea adăugată pentru operațiunile prevăzute la articolul 143 alineatul (1) literele a)-i), articolul 143 alineatul (2) și articolul 144 din Legea nr. 571/2003 privind Codul fiscal (Order No 2222/2006 of the Minister for Public Finance concerning the approval of the instructions for the application of the value added tax exemption for the transactions referred to in Articles 143(1)(a) to (i), in Article 143(2) and in Article 144 of Law No 571/2003 establishing the Tax Code; ‘Ministerial Order No 2222/2006’), provides:

‘The tax exemption laid down in Article 143(1)(c) of the Tax Code, concerning services for the transport of goods directly connected with the export of goods, shall be justified by the service provider … The documents which justify the tax exemption are as follows:

the invoice … or, if necessary, for those persons who have actually carried out the transport service, the specific document of carriage …

the contract drawn up with the service recipient;

the specific documents of carriage referred to in paragraph 4, in accordance with the type of transport, or, if necessary, copies of those documents;

documents showing that the goods transported have been exported.’

21In their written observations, both the Romanian Government and the Commission indicate that Article 4(4) of Ministerial Order No 2222/2006, referred to in Article 4(2)(c) of that order, refers, in particular, to the ‘TIR carnet’ as being the specific document of carriage by road.

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

22Cartrans, a company established in Romania, is an intermediary in road freight transport services. Following a tax inspection, Cartrans received a tax assessment notice, issued on 13 August 2014, imposing additional VAT of RON 16203 (approximately EUR 3650) relating to the supply of road transport services on seven occasions in connection with exports of goods, for a total amount of RON 67512 (approximately EUR 15160); three of those supplies were made between March and May 2012 to Turkey, two in August 2012 to Georgia, the sixth in February 2013 to Iraq and the last in April 2014 to Ukraine.

23According to the report drawn up following that tax inspection and that tax assessment notice, Cartrans could not benefit from the VAT exemption as regards the transport services concerned because, during that inspection, it had not been able to produce customs export declarations demonstrating that the goods in question had actually been exported.

24Cartrans brought an action before the Tribunalul Prahova (Regional Court, Prahova, Romania) challenging the tax assessment notice. In support of its action, it submits that the documents which it holds, in this case the TIR carnets and the CMR consignment notes (drawn up on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956, as amended by the Protocol signed in Geneva on 5 July 1978) certified by the customs offices of the third countries to which the exports were made, establish that those exports took place and provide proof, pursuant to Ministerial Order No 2222/2006, that they are exempt from VAT. Cartrans states in particular that the TIR carnets include both a reference to the goods concerned and certification of customs transit from a customs office of departure to a customs office of destination.

25In their defence, the tax authorities maintain that the transport at issue in the main proceedings cannot constitute supplies of services exempt from VAT, in so far as, although the documents produced by Cartrans may establish that the transport services were supplied for a journey abroad to the exporters, they do not prove that the goods were in fact exported. Under the tax legislation in force, such proof requires the production of the customs export declaration.

26In that regard, the referring court notes, however, in particular, that under national law there is no legal provision which expressly provides what type of document provides proof that the goods transported have been exported.

27In those circumstances the Tribunalul Prahova (Regional Court, Prahova) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

For the purposes of the VAT exemption for transport operations and services relating to the export of goods, in accordance with [the VAT Directive], does a TIR carnet certified by the customs authorities of the country of destination constitute a document which proves that the goods transported were exported, taking into account the procedure for that document laid down in [the Transit Manual for the TIR procedure] of the European Commission?

Does Article 153 of [the VAT Directive] preclude a tax practice which requires a taxpayer to prove that goods transported were exported exclusively by means of a customs export declaration, with the result that the right to deduct VAT for transport services in respect of goods exported will be refused in the absence of that declaration, even if a TIR carnet certified by the customs authorities of the country of destination exists?’

Consideration of the questions referred

28As a preliminary point, it should be recalled that, under the first paragraph of Article 153 of the VAT Directive, Member States must exempt the supply of services by intermediaries, acting in the name and on behalf of another person, where they take part in the transactions referred to in, inter alia, Chapter 6 of Title IX of that directive.

29Article 146(1)(e) of the VAT Directive, to be found in Chapter 6 of Title IX thereof, requires Members States to exempt from VAT the supply of services, including transport and ancillary transactions, where these are directly connected with the exportation of goods outside the European Union (see, to that effect, judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 20).

30In the present case, although the questions referred to the Court for a preliminary ruling mention Article 153 of the VAT Directive, the order for reference does not include, apart from the statement that Cartrans is a road haulage intermediary, any other concrete indication making it possible to establish what supplies of services were carried out in the present case by that company acting as such an intermediary in the name and on behalf of another person. Furthermore, it appears from the wording of that order for reference that the tax notice at issue in the main proceedings concerns the VAT due directly on the supply of transport services for the purposes of the exportation of goods.

31In those circumstances, and in view of the insufficient information available to the Court, it is for the referring court to determine whether, given the facts characterising the situation at issue in the main proceedings, Article 153 of the VAT Directive, read in conjunction with Article 146(1)(e) of that directive, may indeed be applicable to that situation, or whether Article 146(1)(e) alone is applicable to it.

32Furthermore, although the second question refers to a situation in which the right to deduct VAT is refused, it is apparent from the grounds of the order for reference, as the Advocate General noted in point 20 of her Opinion, that the questions raised by the referring court concern, in essence, the conditions for benefiting from a VAT exemption.

33In the light of the foregoing, the view must be taken that, by its two questions, which it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether Article 146(1)(e) of the VAT Directive and, if applicable, that provision in conjunction with Article 153 of that directive, preclude a tax practice of a Member State under which the exemption from VAT, for, respectively, the supply of transport services directly connected with the export of goods and for the supply of services by intermediaries taking part in those supplies of transport services is refused in the case where the person liable for the tax is unable to establish that the goods concerned have been exported specifically and exclusively by means of a customs export declaration. If so, that court is unsure whether those same provisions must be interpreted as meaning that a TIR carnet certified by the customs authorities of the third country to which the goods have been transported, produced by the person liable for the tax, is capable, by itself and in all circumstances, of establishing that those goods have in fact been exported.

34In the first place, as regards the exemption provided for in Article 146(1)(e) of the VAT Directive, it should be recalled at the outset that that exemption supplements the exemption set out in Article 146(1)(a) of that directive, and that it is intended, as is that latter exemption, to ensure that the supply of services concerned is taxed at the place of destination of those services, that is to say, the place where the exported products are consumed (judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 19).

35Referring, in that regard, to its settled case-law, according to which VAT exemptions must be interpreted strictly since they constitute exceptions to the general principle that that tax is to be levied on each delivery of goods and each service supplied for consideration by a taxable person, the Court has held that it follows from the wording and the objective of Article 146(1)(e) of the VAT Directive, according to which the supply of services, including transport and ancillary transactions, are exempt from VAT when they are directly connected with the exportation of goods, that that provision must be interpreted as meaning that the existence of a direct connection entails not only that, by their subject matter, the supplies of services in question contribute to the actual performance of an exportation transaction, but also that those services are supplied directly to, as the case may be, the exporter or the consignee of the goods referred to in that provision (see, to that effect, judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraphs 22 and 23).

36In the second place, and in so far as the referring court concludes that the direct connection thus required under the case-law referred to in the previous paragraph of the present judgment has been verified in the context of the main proceedings, the question arises as to whether it is open to the tax authorities to refuse to grant the exemptions concerned on the ground that the transporter or intermediary is unable to establish, specifically and exclusively by way of a customs export declaration, that the goods in question have in fact been exported outside the European Union.

37In that connection, it must be recalled that, in the absence of any provision in the VAT Directive as to the evidence that taxable persons are required to provide in order to be granted an exemption from VAT, it is for the Member States to lay down, in accordance with Article 131 of that directive, the conditions under which export transactions will be exempt, with a view to ensuring the correct and straightforward application of those exemptions and to preventing any possible evasion, avoidance or abuse. However, when they exercise their powers, Member States must observe the general principles of law which form part of the European Union legal order, which include, in particular, the principles of legal certainty and proportionality (see, to that effect, judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27 and the case-law cited).

38As regards the principle of proportionality, a national measure goes further than is necessary to ensure the correct collection of the tax if, in essence, it makes the right to exemption from VAT subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied. Transactions should be taxed by taking into account their objective characteristics (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 34 and the case-law cited).

39When those substantive requirements have been satisfied, the principle of fiscal neutrality requires the VAT exemption to be granted even if certain formal requirements have been omitted by the taxable persons (see, to that effect, judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 35 and the case-law cited).

40According to the Court’s case-law, there are only two situations in which the failure to meet a formal requirement may result in the loss of entitlement to an exemption from VAT (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 38 and the case-law cited).

41First, the principle of fiscal neutrality cannot be invoked for the purposes of an exemption from VAT by a taxable person who has intentionally participated in tax evasion jeopardising the operation of the common system of VAT (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 39 and the case-law cited). According to the Court’s case-law, it is not contrary to EU law to require an operator to act in good faith and to take every step which could reasonably be asked of it to satisfy itself that the transaction which it is carrying out does not result in its participation in tax evasion. 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 required of it to prevent that fraud from being committed, that person would have to be refused a VAT exemption (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 40 and the case-law cited).

42Second, non-compliance with a formal requirement may lead to the refusal of an exemption from VAT if that non-compliance would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied (judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 42 and the case-law cited).

43With regard, as in the present case, to the objective characteristics of a supply of transport services such as that referred to in Article 146(1)(e) of the VAT Directive, it follows from that provision that such a supply must be exempt from VAT when it is directly connected with the exportation of goods.

44Those substantive conditions include, therefore, and as has been noted in paragraph 35 of the present judgment, the existence of a direct connection between the relevant supply of services and exportation of goods, the latter being understood, in particular, as is apparent from Article 146(1) of the VAT Directive, as being a supply of goods dispatched or transported by the vendor, or on its behalf, to a destination outside the European Union.

45Admittedly, the supply of transport services exempt under Article 146(1)(e) of the VAT Directive must be distinguished from the export transaction itself, which constitutes a separate taxable transaction subject to its own customs and tax procedure and involving, as the case may be, other taxable persons whose exemption, for its part, comes under Article 146(1)(a) of that directive.

46However, it is common ground, as has been noted in paragraphs 34 and 35 of the present judgment, that a supply of transport services which is thus exempt is exempt only because it is ancillary to the transaction of exporting goods, which it supplements, and to the actual performance of which it contributes, in order to ensure, as with the exemption benefiting the latter transaction, that the supply of goods and services is taxed at the place of their destination, namely the place where the exported goods are consumed.

47It should also be noted that all of the exemptions set out in Article 146(1) of the VAT Directive constitute, as is clear from the title above that article, ‘exemptions on exportation’.

48In those circumstances, in order for a supply of transport services to be exempt from VAT on the basis of Article 146(1)(e) of the VAT Directive and, if that supply of services is carried out by an intermediary acting in the name and on behalf of another person, on the basis of Article 153 of that directive, it is in principle necessary that goods in question have in fact been exported, namely that the goods have been delivered outside the European Union, the reality of which must be established to the satisfaction of the competent tax authorities. Such a requirement, which thus relates to the substantive conditions necessary for the granting of an exemption, cannot, therefore, be regarded as a purely formal obligation within the meaning of the case-law cited in paragraph 38 of the present judgment.

49However, it does not follow that the granting of such an exemption can be subject to the mandatory condition that the relevant transporter or intermediary must produce an export declaration for the purposes of establishing that the exports in fact took place, thereby excluding any other evidence capable of shoring up the conviction thus required by the competent tax authorities to make their conclusion.

50Imposing such a probative procedure, to the exclusion of any other, would amount to making the right to an exemption subject to compliance with formal obligations, within the meaning of the case-law referred to in paragraphs 38 and 39 of the present judgment, without examining whether the substantive requirements laid down by EU law have in fact been satisfied or not. The mere fact that a transporter or an intermediary taking part in a transport transaction is unable to produce an export declaration does not mean that such exportation has not in fact taken place.

51In that regard, the obligation to submit such an export declaration, as is apparent in particular from Articles 59, 161 and 182a of the Customs Code, falls under the customs procedure which applies specifically to the export transaction itself, and not to the supply of transport services under cover of a TIR carnet, which, for its part, comes under a transit procedure. Thus, in principle, such an obligation does not devolve upon the transporter or the intermediary referred to in Article 153 of the VAT Directive, which, for their part, are responsible for transporting the goods by crossing the external border of the European Union and for delivering those goods to their destination in the third country and which, consequently, are not necessarily deemed to have that declaration.

52For the purposes of the checks required of them in order to verify whether there has been compliance with the substantive conditions, to which the exemption established in Article 146(1)(e) of the VAT Directive is subject as regards a transport operation, the competent tax authorities must, as the Advocate General noted in point 39 of her Opinion, examine all of the information available to them in order to determine whether it can be deduced from that information, with a sufficiently high degree of probability, that the goods thus transported to a third country were delivered there. By contrast, those authorities cannot deduce that this was not the case from the mere fact that the transporter or intermediary is unable to produce an export declaration relating to those goods.

53Furthermore, and as the Advocate General also noted in point 40 of her Opinion, the file available to the Court does not contain any indication that the transporter or intermediary in the present case intentionally participated in tax evasion jeopardising the operation of the common system of VAT, or that, if such a taxable person fails to satisfy that formal requirement, the competent authorities are prevented from establishing whether the substantive conditions governing the exemption have been met.

54It follows from the foregoing that a tax practice of a Member State refusing to grant the exemption from VAT for the services relating to the transportation of goods directly connected with the export of goods outside the European Union established in Article 146(1)(e) of the VAT Directive, or for the intermediary services relating to such services referred to in Article 153 of that directive, on the sole ground that the transporter or intermediary concerned is unable to produce a customs export declaration for those goods, is at odds with the case-law referred to in paragraph 38 of the present judgment.

55As regards the principle of legal certainty, it should be recalled that that principle, the corollary of which is the principle of the protection of legitimate expectations and compliance with which, as has been noted in paragraph 37 of the present judgment, obliges Member States to lay down the conditions in regard to exemptions requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those who are subject to them (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 28 and the case-law cited).

56That principle must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the obligations which such rules impose on them. It follows that it is necessary that taxable persons should be aware, before concluding a transaction, of their tax obligations (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 29 and the case-law cited).

57The Court has also stated that the obligations imposed on taxable persons with regard to evidence must be determined in the light of the conditions expressly laid down in that regard by national law and in accordance with the general practice established in respect of similar transactions (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 30 and the case-law cited).

58In the present case, as the referring court points out, the requirement to produce a customs export declaration does not follow from the wording of the national legislation at issue in the main proceedings, which provides, in that regard, only for the production of otherwise unspecified documents proving that the transported goods have been exported.

59In those circumstances, the tax practice at issue in the main proceedings does not comply with the requirements arising from the principle of legal certainty referred to in paragraphs 55 to 57 of the present judgment.

60In the third place, as regards the probative value that may attach to the TIR carnet for the purpose of establishing actual compliance with the condition relating to the export of goods with which a supply of transport services must be connected in order to be able to benefit from the exemption from VAT provided for by Article 146(1)(e) of the VAT Directive, it should be recalled that that document, which is uniform in nature, is issued in accordance with the relevant provisions of the TIR Convention, to which both the European Union and its Member States are parties.

61Article 91(1)(b) and (2)(b) of the Customs Code states that the movement of goods within the customs territory of the European Union and ending outside the European Union comes, in certain cases determined in accordance with the committee procedure, under the external transit procedure, in particular when that movement is effected under cover of such a TIR carnet.

62The TIR carnet must, as is apparent from the provisions of the TIR Convention, in particular Article 1(e) and (o) thereof, be presented, together with the vehicle used to transport the goods concerned, to the customs offices of departure, transit and destination, and must be certified by those offices by way of the sheets, vouchers and counterfoils referred to in paragraph 16 of the present judgment, in order to facilitate the discharge of the various TIR transactions concerned once it has been established that those transactions have been completed in accordance with the rules.

63It follows from the foregoing that a TIR carnet duly certified, in particular by the customs authorities of the third country of destination, constitutes an official document which, in principle, shows that the goods in question, by crossing the European Union’s external borders, have physically moved from the European Union to that third country and reached the latter.

64Such a crossing of borders and arrival of the goods in the third country of destination demonstrated by the TIR carnet constitute one of the elements of an export transaction which distinguishes it from a transaction which occurs within the European Union (see, by analogy, judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 37).

65It follows that, when such a supply of transport services is made under cover of a TIR carnet, the latter, in the absence of precise grounds capable of casting doubt on the authenticity or reliability of that carnet and its contents, is particularly relevant in the specific context of the recognition of the right to the exemption in respect of that supply of transport services.

66The tax authorities must therefore take proper account of such a document, just as, moreover, and has been noted in paragraph 52 of the present judgment, they must take account of all of the information available to them.

67In that regard, it is thus for those authorities also to take account of the documents issued in the context of the CMR Convention, such as those mentioned by the referring court, for the purposes of examining whether those documents may, where necessary, support the likelihood that the transported goods were in fact exported.

68In the light of all of the foregoing, the answer to the questions referred for a preliminary ruling is that Article 146(1)(e) of the VAT Directive, on the one hand, and that provision in conjunction with Article 153 of that directive, on the other hand, must be interpreted as precluding a tax practice of a Member State under which the exemption from VAT for, respectively, the supply of transport services directly connected with the exportation of goods and the supply of services by intermediaries taking part in those supplies of transport services is subject to production by the taxable person of a customs export declaration in respect of the goods concerned. In that regard, it is for the competent authorities, for the purposes of granting those exemptions, to examine whether compliance with the condition relating to the exportation of the goods concerned can be inferred, with a sufficiently high degree of probability, from all of the information that may be available to those authorities. In that context, a TIR carnet which is certified by the customs offices of the third country of destination of the goods and which is produced by the taxable person constitutes evidence which, in principle, those authorities must duly take into account, unless they have specific reasons to doubt the authenticity or reliability of that document.

Costs

69Since 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 (Seventh Chamber) hereby rules:

Article 146(1)(e) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the one hand, and that provision in conjunction with Article 153 of that directive, on the other hand, must be interpreted as precluding a tax practice of a Member State under which the exemption from value added tax for, respectively, the supply of transport services directly connected with the exportation of goods and the supply of services by intermediaries taking part in those supplies of transport services is subject to production by the taxable person of a customs export declaration in respect of the goods concerned. In that regard, it is for the competent authorities, for the purposes of granting those exemptions, to examine whether compliance with the condition relating to the exportation of the goods concerned can be inferred, with a sufficiently high degree of probability, from all of the information that may be available to those authorities. In that context, a TIR carnet which is certified by the customs offices of the third country of destination of the goods and which is produced by the taxable person constitutes evidence which, in principle, those authorities must duly take into account, unless they have specific reasons to doubt the authenticity or reliability of that document.

Signatures

[Signatures]

( *1 ) Language of the case: Romanian.

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 12 July 2018 ¹

(Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Articles 146(1)(e) and 153 — Exemptions — Transport services connected with the export of goods — Proof that the goods have been exported outside EU territory — System established by the Customs Convention on the international transport of goods — TIR carnets)

Introduction

1By this request for a preliminary ruling the Tribunalul Prahova (Tribunal, Prahova, Romania) seeks guidance on the interpretation of Council Directive 2006/112/EC. ² The referring court wishes to ascertain whether national rules which require a taxpayer to provide specific documents in order to obtain the benefit of exemption from VAT on the supply of services (including transport), where these are directly connected with the export of goods outside the territory of the European Union, are compatible with the VAT Directive. Where such goods are conveyed under cover of an international road transport carnet in accordance with the system established by the Customs Convention on the international transport of goods under cover of TIR carnets, the referring court asks whether such documents constitute evidence proving that the goods concerned were indeed exported.

EU legal framework

The VAT Directive

2Article 131 is in Title IX entitled ‘Exemptions’ and states, ‘the exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community 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’.

3Article 146 is to be found in Title IX Chapter 6 (‘Exemptions on exportation’). Article 146(1)(e) lists amongst those exemptions ‘the supply of services, including transport and ancillary transactions, but excluding the supply of services exempted in accordance with Articles 132 and 135, where these are directly connected with the exportation or importation of goods …’.

4Pursuant to Article 153, Member States are to ‘exempt the supply of services by intermediaries, acting in the name and on behalf of another person, where they take part in the transactions referred to in Chapters 6, 7 and 8, or of transactions carried out outside the [European Union]’.

The Customs Code

5The Customs Code established by Council Regulation (EEC) No 2913/92 ³ set the legal framework for customs rules and procedures in the EU customs territory. Article 4(16)(b) and (h) stated respectively that the term ‘Customs procedure’ covered transit and exportation. Pursuant to Article 4(17), ‘Customs declaration’ meant the act whereby a person indicated in the prescribed form and manner a wish to place goods under a given customs procedure. In accordance with Article 59, goods placed under a customs procedure were to be covered by a declaration for that procedure. Goods declared for, inter alia, export or transit were subject to customs supervision from the time of acceptance of the customs declaration ‘until such time as they leave the customs territory of [the European Union] or are destroyed or the customs declaration is invalidated’.

6Article 91(1)(a) and (b) provided, respectively, that the external transit procedure allowed movement from one point to another within the customs territory of non-EU goods and EU goods. Where goods moved as described in Article 91(1) under cover of a TIR carnet, that was a permitted movement for the purposes of Article 91(2)(b) provided that such movement: (i) began or was to end outside the EU; (ii) related to consignments of goods which had to be unloaded in the customs territory and were conveyed with goods that were to be unloaded in a third country; or (iii) were effected between two points in the European Union through the territory of a third country.

7Article 161 was entitled ‘Export’. Article 161(1) provided that the export procedure allowed EU goods to leave the customs territory. Article 161(2) stated that all EU goods intended for export were to be placed under the export procedure, except for goods placed under the outward processing procedure or a transit procedure.

8In accordance with Article 163(1), the internal transit procedure allowed the movement of EU goods from one point to another within the customs territory passing through a third country without any change in their customs status. Movement of that type could take place, inter alia, under cover of a TIR carnet (Article 163(2)).

9In accordance with Article 182a(1), goods leaving the customs territory had to be covered either by a customs declaration or, where such a declaration was not required, by a summary declaration. ⁴ Pursuant to Article 182b(1), where such goods were assigned to a customs approved treatment or use for the purpose of which a customs declaration was required, any such declaration had to be lodged at the customs office of export before the goods concerned were removed from the customs territory. Article 183 provided that goods leaving the customs territory were subject to customs supervision.

The TIR Convention

10Under the auspices of the United Nations Economic Commission for Europe (UNECE), the TIR transit system was developed after the Second World War to help to revitalise the economies of post war Europe. The Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention), concluded at Geneva on 14 November 1975, was approved on behalf of the then European Economic Community by virtue of Council Regulation (EEC) No 2112/78 and is therefore directly applicable. ⁵ The TIR Convention entered into force as regards what is now the European Union on 20 June 1983. ⁶ Each EU Member State and the European Union itself is a contracting party. A consolidated version of the text of that Convention was published in the Annex to Council Decision 2009/477/EC. ⁷

11Article 1 of the TIR Convention defines the term ‘TIR transport’ as the transport of goods from a Customs office of departure to a Customs office of destination under the TIR procedure. The ‘holder’ of a TIR carnet is the person to whom a TIR carnet has been issued in accordance with the relevant provisions of the Convention and on whose behalf a Customs declaration has been made in the form of a TIR carnet indicating a wish to place goods under the TIR procedure at the Customs office of departure. ⁸ Article 2 states that the Convention applies to the transport of goods, without intermediate reloading, across one or more frontiers between a Customs office of departure of one Contracting Party and a Customs office of destination of another or of the same Contracting Party, provided that some portion of the journey between the beginning and the end of the TIR transport is made by road.

12Pursuant to Article 3(b), transport operations must be guaranteed by associations approved in accordance with Article 6 ⁹ and must be performed under cover of a TIR carnet. Article 4 provides that goods carried under the TIR procedure are not to be subjected to the payment or deposit of import or export duties and taxes at Customs offices en route.

The TIR transit manual

13The Commission’s transit manual ¹⁰ states that ‘the TIR carnet is a customs declaration for transport of goods. It provides proof of the existence of the guarantee. TIR carnets are distributed by the International Organisation (currently the International Road Transport Union (IRU)) to national guaranteeing associations. A TIR carnet customs declaration is valid for one TIR transport only. It is taken into use in the country of departure and enables customs control in the Contracting Parties of departure, transit and destination’ (see the third subparagraph of paragraph 1.2 in Part IX – the TIR Procedure).

National law

14The referring court states in its order for reference that under national law transport services which are directly connected with the export of goods are exempt from the payment of VAT. That court indicates that, in accordance with the rules in force at the material time, transport services were exempt from VAT only if the taxpayer concerned was able to demonstrate that the goods transported were indeed exported by producing the following documents in support of a request for exemption: an invoice issued by the carrier, a contract of carriage drawn up with the beneficiary of the service, specific documents of carriage and documents showing that the goods transported were exported.

Facts, procedure and the questions referred

15Cartrans Spedition SRL (‘Cartrans’), a road transport services broker, the head office of which is located in Romania, supplied services relating to the transport of goods on three occasions in Turkey in the period from March to May 2012, twice in Georgia in August 2012, once in Iraq in February 2013 and on one occasion in Ukraine in April 2014. On 13 August 2014 the Romanian competent authorities issued a tax inspection report and a tax assessment notice requiring Cartrans to pay 16203 Romanian lei (RON) (approximately EUR 3650).

16The competent authorities maintained that Cartrans had failed to demonstrate that the goods transported had in fact been exported, as Cartrans had not produced any of the following documents: a contract of carriage drawn up with the beneficiary of the service, specific documents of carriage and documents showing that the goods transported were exported, in accordance with national rules. Cartrans had merely demonstrated that it had supplied certain transport services abroad to exporters.

17Cartrans challenged that assessment. In support of its request for exemption from VAT it produced TIR carnets and CMR consignment notes certified by customs officials of the countries to which Cartrans had transported the goods concerned for export for each of the seven invoices subject to VAT assessment. ¹¹ Cartrans claimed that the TIR carnets contained references to both the goods transported and the certifications by the customs authorities concerning the export of the goods to the respective countries and that the TIR carnet clearly therefore had evidential value, since it was the document certifying customs transit from a customs office of departure to a customs office of destination.

18The referring court considers that an interpretation of the provisions of the VAT Directive concerning exemptions on export and for the supply of services by intermediaries is necessary in order to resolve the main proceedings. It has therefore referred the following questions to the Court for a preliminary ruling:

For the purposes of the VAT exemption for transport operations and services relating to the export of goods, in accordance with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, does a TIR carnet certified by the customs authorities of the country of destination constitute a document which proves that the goods transported were indeed exported, taking into account the procedure for such a customs transit document laid down in the Transit Manual (TIR procedure) No TAXUD/1873/2007 by the Customs Code Committee — Transit section, Directorate-General Taxation and Customs Union of the European Commission??

Does Article 153 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax preclude a tax practice which requires a taxpayer to prove that goods transported were exported exclusively by means of a customs export declaration, with the result that the right to deduct VAT for transport services in respect of goods exported will be refused in the absence of that declaration, even if a TIR carnet certified by the customs authorities of the country of destination exists?’

19Written observations were submitted by Cartrans, the Romanian Government and the European Commission. No hearing was requested and none was held.

Assessment

Preliminary remarks

20The referring court’s questions are put on the premiss that Cartrans seeks exemption from VAT on the basis that it supplied services as an intermediary acting on behalf of another person for the purposes of Article 153 of the VAT Directive. ¹² The order for reference describes Cartrans as ‘a road freight transport services broker’. However, the referring court does not indicate whether Cartrans’ request for exemption from VAT is based on the grounds that it supplied transport and ancillary services itself under Article 146(1)(e) of the VAT Directive or whether it simply acted as an intermediary as set out in Article 153 of that directive.

21The word ‘intermediary’ is not defined in Article 153 of the VAT Directive. The ordinary meaning construed in accordance with the purpose of the VAT Directive indicates that an intermediary is a person who acts between parties. ¹³ In the context of road transport services, that might include providing logistical support to coordinate the movement of the seller’s goods to the buyer, as well as but not necessarily also providing services to ensure the physical transport of goods from the point of departure to the destination. The supply of transport services by an intermediary benefits from a specific exemption from tax where the person concerned transported goods to a destination outside the European Union by or on behalf of another under Article 153 of the VAT Directive. In the absence of any information in the order for reference as to Cartrans’ exact role, it will be for the referring court to verify whether Cartrans acted as an intermediary on behalf of another person or whether it transported the goods concerned itself in the context of the main proceedings.

22In any event, Article 153 applies where the taxpayer concerned takes part in transactions referred to in, inter alia, Chapter 6 of the VAT Directive. Here, the relevant provision in Chapter 6 is Article 146(1)(e). I shall therefore examine the questions referred in the light of that provision.

Questions 1 and 2

23The referring court seeks to ascertain, in circumstances where a taxpayer seeks the benefit of an exemption from VAT on the grounds that it has supplied services connected with the transport of goods for export from the European Union, whether Member States are able to introduce conditions requiring the taxpayer to submit certain specific documents in order to prove that the goods concerned were indeed exported or whether the TIR carnets constitute such proof. As the two questions referred are facets of the same issue I shall examine them together.

24The Romanian Government is of the view that the VAT Directive permits Member States to reject requests for exemption from tax under Article 146(1)(e) of the VAT Directive in circumstances such as those in the main proceedings. Cartrans and the Commission contest that view.

25I also disagree with the Romanian Government.

26There are two points of common ground between the parties. First, in so far as it is clear that Article 146(1)(e) of the VAT Directive concerns exemption from tax for exports from the European Union, it is in conformity with the general principle of international tax law that tax should be imposed on the consumption of goods and services at the place of destination. Thus, all operations concerning exports are generally exempt from tax. Second, since that provision permits an exemption from tax it should be interpreted strictly. ¹⁴

27The exemptions provided for in Chapter 6 of the VAT Directive (‘Exemptions on exportation’) are mandatory. Thus, where a taxpayer is able to demonstrate the supply of transport and ancillary services within the meaning of Article 146(1)(e), the exemption provided must be granted. In the absence of express provision Member States do not retain a discretion to introduce additional substantive conditions.

28The Court’s case-law makes it clear that there must be a direct link between the transport of goods to a destination outside the European Union and the relevant services in order for the exemption provided for in Article 146(1)(e) of the VAT Directive to apply. In other words, the services must be supplied directly to (as the case may be) the exporter, the importer or the consignee of the goods referred to in that provision. ¹⁵ Those are matters for the referring court to assess in its examination of the facts and circumstances of the case at issue.

29The order for reference makes plain that under national rules transport relating to the export of goods is a service that is exempt from VAT only if the taxpayer concerned is able to produce the following documents as proof: an invoice issued by the carrier, a contract of carriage drawn up with the beneficiary of the service, specific documents of carriage and documents showing that the goods transported were exported (‘the required documents’).

30It seems to me that a national practice which requires a taxpayer to prove that the transported goods were indeed exported is not compatible with EU law. Article 146(1)(e) of the VAT Directive does not contain any such requirement. Rather, that provision lays down the condition that the supply of services including transport is to be directly connected with the exportation of goods.

31Moreover, I agree with the Commission that there is no provision in the VAT Directive imposing a condition that a taxpayer is to furnish specific evidence in order to benefit from the exemption provided for in Article 146(1)(e).

32From the referring court’s description of the national regime, it appears clear that the domestic rules at issue introduce purely formal requirements. However, such requirements regarding the form in which a taxpayer demonstrates eligibility for the exemption cannot undermine an entitlement to exemption from VAT under EU law where the substantive conditions for triggering Article 146(1)(e) of the VAT Directive are met. ¹⁶

33Pursuant to Article 131 of the VAT Directive, the exemptions provided for in, inter alia, Article 146(1)(e) apply without prejudice to other provisions of EU law and in accordance with the conditions laid down by Member States for the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. In exercising that discretion, the Member States are subject to the general principles of EU law, in particular the principles of legal certainty and proportionality. ¹⁷

34The principle of legal certainty requires that the effect of a legal provision must be clear and predictable to those persons who are subject to it. ¹⁸ In accordance with the Court’s settled case-law, that principle is applied rigorously in instances where the legislation concerned introduces fiscal charges. ¹⁹ In that context the Court has ruled that a taxpayer’s obligations as regards evidence should be governed by express conditions under national law and the rules established for similar transactions. ²⁰

35The referring court states in its order for reference that Romanian law contains no legal basis which expressly stipulates what types of document(s) constitute evidence that goods transported have been exported. From that court’s description, the national rules at issue appear to be derived from a combination of legislative provision and administrative practice. It will be for that court to assess whether those rules are sufficiently clear and precise to satisfy the general principle of legal certainty.

36As regards proportionality, the Court has ruled that Member States must employ means which, whilst enabling them effectively to attain the objectives pursued by their domestic laws, cause the least possible detriment to the objectives and principles laid down by the relevant EU legislation. ²¹ Thus, national rules should not go beyond what is necessary to preserve or safeguard the public purse. ²² In a context in which a tax authority refused to allow exemption for an intra-EU supply because the relevant accounting evidence was belatedly produced and took no account of the fact that the substantive conditions had been met, the Court has ruled that national rules went further than was necessary to ensure the correct levying and collection of the tax. ²³ In my view that reasoning should apply to the circumstances of the present case. Thus, if a taxpayer meets the substantive conditions laid down in Article 146(1)(e) of the VAT Directive, those conditions cannot be displaced by mere formal requirements set out in national law.

37Those national requirements may therefore not be used in such a way as to have the effect of undermining the neutrality of VAT, which is a fundamental principle of the common system of VAT established by the relevant EU legislation. ²⁴

38The principle of fiscal neutrality requires that exemption from VAT must be granted if the substantive conditions are met, even if the taxpayer has not complied with certain formalities. ²⁵ There are only two instances in which the failure to comply with formal requirements has led to losing a right to exemption from VAT. ²⁶ One is in cases of fraud. ²⁷ The second is where exemption is refused if the breach of the rules at issue has the effect of preventing proof that certain substantive conditions have been met being brought to the competent authorities’ attention. ²⁸

39It is not disputed in the main proceedings that Cartrans did supply services within the meaning of the VAT Directive and that those services were supplied outside the territory of the European Union. Given that context, a national practice which means that the competent authorities will not examine evidence indicating that the goods at issue were delivered to a buyer (or consignee) situated in a third country operates in a manner akin to a presumption that the exemption cannot be granted.

40It seems to me that the national rules at issue go beyond what is necessary to ensure the correct collection of tax for the following reasons. First, the referring court states that where a taxpayer is unable to provide the required documents in support of a claim for exemption, a claim will be refused. That outcome is incompatible with the principle of fiscal neutrality inasmuch as VAT will not be imposed at the destination of the goods, but instead at a point where they are in transit. ²⁹ Second, the national rules at issue are applied in a manner which means that the competent authorities do not even consider whether the substantive conditions for exemption on the basis of Article 146(1)(e) of the VAT Directive are in fact satisfied if the formal requirements are not met. Third, nothing in the order for reference suggests that a failure to meet the formal requirements necessarily gives rise to an instance of fraud or that breach of the rules at issue has the effect of preventing the competent authorities from establishing whether the substantive conditions were met.

41It follows that the authorities of a Member State cannot in principle refuse to grant an exemption from VAT without examining whether the substantive conditions laid down by the applicable provisions of EU law have been met merely on the ground that the taxpayer concerned has not furnished certain specific documents to prove that the goods at issue were indeed exported.

42Should the TIR carnet be regarded as definitive proof that the goods concerned were exported?

43There is here some common ground between the parties, in that all three are of the view that under the Customs Code the export and transit regimes are distinct.

44Cartrans argues that a taxpayer which supplies transport services should not be required to produce an export declaration as proof that the goods concerned were exported. That is because the person supplying transport services will only have access to proof of transit by virtue of the TIR regime. The Romanian Government submits that the fact that a customs office has certified a TIR carnet does not prove of itself that the goods concerned were transported and exported outside the European Union. The Commission states that the TIR system confirms that goods have been transported to their destination. Against that background the TIR carnet cannot replace the customs export declaration which shows that the goods concerned were placed under the export regime.

45It seems to me that the parties are right in observing that it follows from the Customs Code that the transit and export regimes are distinct. ³⁰

46In his Opinion in BGL, Advocate General Léger ³¹ set out a helpful overview of the TIR Convention which is part of the EU legal order by virtue of Decision 2009/477. As he explained, the Convention facilitates the international carriage of goods by road vehicle: it simplifies and harmonises the administrative customs formalities that are to be fulfilled at borders. Consignments of goods are subject to a single inspection at the customs office of departure to the exclusion of any other examination by customs offices en route or of destination (subject to suspicion of an irregularity). A significant feature is that such goods are not subject to the payment or deposit of import or export duties and taxes. The transported goods must be accompanied throughout their journey by a uniform dispatch document, the TIR carnet, issued by the customs office of departure, which will serve as a reference instrument for checking the regularity of the operation. The payment of duties and taxes liable to be levied on a transporter by customs services must be guaranteed in part by a national association approved for this purpose by the authorities of the contracting parties. This guarantee is itself covered by the IRU and by a group of insurance companies established in Switzerland. ³²

47The TIR carnets are printed by the IRU and distributed by the guaranteeing associations to the transporters, which use them to record a series of items of information, primarily concerning the goods carried. Each TIR carnet consists of a set of sheets in duplicate (copies Nos 1 and 2). At the start of the transport operation, the customs office of departure checks the load, verifying in particular that it corresponds to the goods declared in the TIR carnet, and seals it. The customs office then completes the first sheet of the TIR carnet presented by the user, removes copy No 1, signs the corresponding counterfoil and returns the carnet to the user. At the point where the consignment leaves the territory it has crossed, the customs office en route checks the state of the seals, removes copy No 2, signs the corresponding counterfoil and returns the TIR carnet to the user. It then sends copy No 2 to the customs office of departure, which checks that it corresponds to copy No 1. If copy No 2 contains no reservation as to the regularity of the TIR operation, the latter is regularly discharged on the territory crossed. On the other hand, if copy No 2 bears reservations or is not received by the customs office of departure, the TIR operation is considered to be irregular on the territory in question. As a consequence, the customs authorities of that territory are entitled to levy the duties and taxes which thus become payable. That process is repeated in each country crossed, except between the Member States of the European Union because they constitute a single customs territory. ³³

48That sketch of the main features of the TIR system confirms that the purpose of a certified TIR carnet is not to prove that the goods concerned were in fact exported. Rather, that system demonstrates that ‘the TIR carnet is a customs declaration for transport of goods. It provides proof of the existence of the guarantee’. ³⁴

49As the customs regime for transit (of which TIR operations form part) and export are distinct, ³⁵ the TIR carnet cannot be assimilated to a customs declaration issued when goods leave the EU customs territory as laid down in Article 182a of the Customs Code. ³⁶

50As regards the main proceedings, in order to obtain the benefit of the exemption afforded by Article 146(1)(e) of the VAT Directive, a taxpayer must demonstrate the supply of services (including transport) which are directly connected with the exportation or importation of goods.

51In my Opinion, a taxpayer such as Cartrans, therefore, does not have to go so far as to prove that the goods concerned were actually exported. What it needs to show is that the transport services supplied were directly connected with the export of goods. The procedure for establishing that fact is not governed by EU rules and is ultimately a matter for national authorities subject to the supervision of national courts. That said, whilst the TIR carnet is not necessarily conclusive proof of export, it seems to me to be a document that is indeed relevant in the context of assessing whether transport services provided are directly connected with the export of the goods carried by the road haulier concerned. In the absence of evidence suggesting that the goods covered by the TIR carnet were not in fact exported, it would seem to me to provide strong evidence in support of a claim for exemption from VAT under Article 146(1)(e) of the VAT Directive. ³⁷

Conclusion

52In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions posed by the Tribunalul Prahova (Tribunal, Prahova, Romania) as follows:

Articles 146(1)(e) and 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax should be interpreted as precluding national rules which require the production of specific documents to prove that goods transported by a taxpayer supplying road transport services to a destination outside the territory of the European Union were indeed exported. It is for the competent authorities, subject to the supervision of the national courts, to examine and assess the evidence in any particular case. That evidence may include reference to the TIR carnets as described in the Convention on the international transport of goods under cover of TIR carnets annexed to Council Decision 2009/477/EC of 28 May 2009 publishing in consolidated form the text of the Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 at Geneva as amended since that date, in order to establish whether the goods concerned physically left the territory of the European Union and thus whether the transport services supplied were directly connected with the export of goods.

¹ Original language: English.

² Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1 (‘the VAT Directive’)). The relevant transactions took place between March 2012 and April 2014, I shall therefore refer to that period as ‘the material time’. See further point 15 below.

³ Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’). That regulation was amended several times: it was the version as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) that was in force at the material time. The current version is contained in Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269 p. 1).

⁴ The exceptions to that rule are not relevant for the purposes of the present Opinion.

⁵ Regulation of 25 July 1978 concerning the conclusion of the Customs Convention of the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 at Geneva (OJ 1978 L 252, p. 1).

⁶ The TIR Convention entered into force when all the necessary formalities were completed (see Article 2 of Regulation No 2112/1978 and Articles 52 and 53 of TIR Convention). The date of entry into force of that convention as regards the European Union is recorded in the Official Journal under the heading ‘Entry into force of the Customs Convention of the international transport of goods under cover of TIR carnets (TIR Convention)’ (OJ 1983 L 31, p. 13).

⁷ Decision of 28 May 2009 publishing in consolidated form the text of the Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 at Geneva as amended since that date (OJ 2009 L 165, p. 1).

⁸ Article 1(a) and (o) respectively.

⁹ Article 6 provides that each Contracting Party is able to authorise associations to issue TIR carnets and to act as guarantors provided the conditions in Part I of Annex 9 to the Convention have been met. These include: proven existence of at least one year as an established association representing the interests of the transport sector, proof of sound financial standing and organisational capabilities enabling fulfilment of the obligations under the Convention, and proven knowledge of its staff of the proper application of the Convention. Further conditions state that there must be no serious or repeated offences against Customs or tax legislation; a written agreement or other legal instrument between the association and the competent authorities of the Contracting Party in which it is established; and an undertaking that, inter alia, confirms that the association will comply with the obligations laid down in the Convention.

¹⁰ Transit Manual (The TIR procedure) of 1 July 2009 TAXUD/1873/2007 – EN Final published by the European Commission Customs Code Committee – Transit Section (TIR). The European Commission is in the process of updating the Transit Manual. Thus, the current version dated 27 April 2016 (TAXUD/A2/TRA/003/2016-EN) is described as a ‘working document’.

¹¹ I understand the CMR consignment note to be a document showing proof of a contract to convey goods by road based on the Convention on the Contract for the International Carriage of Goods by Road signed at Geneva on 19 May 1956. As those documents do not form part of the basis of the referring court’s questions, I shall say nothing further about them.

¹² The second question referred is expressed in terms of the right ‘to deduct’ VAT for the provision of transport services, I understand that as referring to ‘the right to exemption from tax’ for two reasons. First, the provisions at issue are not part of the specific VAT regime concerning deductions. Second, the order for reference is clearly concerned with rules governing exemption from tax: there is no mention of the rules concerning deductions.

¹³ Judgment of 2 April 1998, EMU Tabac and Others, C‑296/95, EU:C:1998:152, paragraph 30.

¹⁴ Judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraphs 18 and 22.

¹⁵ Judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 23.

¹⁶ Judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 32.

¹⁷ Judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 27.

¹⁸ Judgment of 29 April 2004, Sudholz, C‑17/01, EU:C:2004:242, paragraph 34.

¹⁹ Judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 48.

²⁰ Judgment of 6 September 2012, Mecsek-Gabona, C‑273/11, EU:C:2012:547, paragraph 38.

²¹ Judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 20.

²² Judgment of 21 February 2008, Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 20.

²³ Judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 29.

²⁴ Judgment of 27 September 2007, Collée, C‑146/05, EU:C:2007:549, paragraph 26.

²⁵ Judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 36.

²⁶ Judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 38.

²⁷ Judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 39.

²⁸ Judgment of 9 February 2017, Euro Tyre, C‑21/16, EU:C:2017:106, paragraph 42.

²⁹ See point 37 above.

³⁰ See points 6 to 8 above.

³¹ C‑78/01, EU:C:2003:14, points 4 to 7.

³² See points 11 and 13 above.

³³ Opinion of Advocate General Léger in BGL, C‑78/01, EU:C:2003:14, points 7 and 8.

³⁴ See the TIR Transit Manual, page 7.

³⁵ See point 45 above.

³⁶ See point 9 above.

³⁷ Judgment of 27 September 2007, Teleos and Others, C‑409/04, EU:C:2007:548, paragraph 37, where the Court ruled that the classification of intra-EU supplies and acquisitions should be made on the basis of objective matters such as the physical movement of the goods concerned between Member States. That reasoning can be applied here in so far as the taxpayer is able to show that the goods concerned physically left the territory of the European Union.