C-84/09 X

JUDGMENT OF THE COURT (Second Chamber)

18 November 2010 *

In Case C-84/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Regeringsrätten (Sweden), made by decision of 16 February 2009, received at the Court on 26 February 2009, in the proceedings

v

Skatteverket,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, A. Arabadjiev, U. Lõhmus (Rapporteur), A. Ó Caoimh and P. Lindh, Judges,

* Language of the case: Swedish.

Advocate General: J. Kokott, Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 15 April 2010,

after considering the observations submitted on behalf of:

— X, by U. Käll, D. Kleist and M. Johansson, advokater,

— the Skatteverket, by C. Olsson, advokat,

— the Swedish Government, by A. Falk and S. Johannesson, acting as Agents,

— the German Government, by M. Lumma and B. Klein, acting as Agents,

— the European Commission, by D. Triantafyllou and P. Dejmek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 May 2010, gives the following

Judgment

Legal context and the dispute

1This reference for a preliminary ruling concerns the interpretation of Article 2, the first paragraph of Article 20 and Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2The reference was made in the context of proceedings between X and the Skatteverket (Swedish tax administration) concerning a preliminary tax decision of the Skatterättsnämnden (Swedish Revenue Law Commission) relating to the application of value added tax (‘VAT’) in Sweden to the acquisition of a new sailing boat in another Member State.

Legal context

Directive 2006/112

3Directive 2006/112 repealed and replaced, with effect from 1 January 2007, the existing Community VAT legislation, including Sixth Council Directive 77/388/EEC of 17 May 1977 on the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).

4Recital 11 in the preamble to Directive 2006/112 states:

‘It is also appropriate that, during that transitional period, … certain intra-Community … suppl[ies] 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.’

5Article 2 of that directive provides:

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

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

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

…

(ii) 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;

…

2. (a) For the purposes of point (ii) of paragraph 1(b), the following shall be regarded as “means of transport”, where they are intended for the transport of persons or goods:

…

(ii) vessels exceeding 7.5 metres in length, with the exception of vessels used for navigation on the high seas and carrying passengers for reward, and of vessels used for the purposes of commercial, industrial or fishing activities, or for rescue or assistance at sea, or for inshore fishing;

…

(b) These means of transport shall be regarded as “new” in the cases:

…

(ii) of vessels, where the supply takes place within three months of the date of first entry into service or where the vessel has sailed for no more than 100 hours;

… (c) Member States shall lay down the conditions under which the facts referred to in point (b) may be regarded as established.’

6Under Article 14(1) of that directive, ‘supply of goods’ is to be understood as meaning the transfer of the right to dispose of tangible property as owner.

7According to the first paragraph of Article 20 of that same directive:

‘“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.’

8Under Article 40 of Directive 2006/112, the place of an intra-Community acquisition of goods is deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.

9Article 68 of that directive provides:

‘The chargeable event shall occur when the intra-Community acquisition of goods is made.

The intra-Community acquisition of goods shall be regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State.’

10Article 138 of that directive reads as follows:

‘1. Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, 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 supply of goods referred to in paragraph 1, Member States shall exempt the following transactions:

(a) the supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the Community, 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;

…’

National legislation

11Under Chapter 1, Paragraph 1, of the Law on value added tax (Mervärdesskattelagen, SFS 1994:200) (‘the ML’), VAT is to be paid on, inter alia, sales within Swedish territory of goods or services as part of a business activity and for intra-Community acquisitions of movable goods.

12Under Chapter 2a, Paragraph 2, of the ML, ‘intra-Community acquisition’ means the acquisition for consideration in a case where the goods are transported to the person acquiring the goods in Sweden from another Member State by or on behalf of the person acquiring the goods, the vendor or a third party on their behalf.

13Under Chapter 2a, Paragraph 3, of the ML, goods are to be regarded as acquired by means of an intra-Community acquisition if the acquisition concerns a new means of transport as referred to in Chapter 1, Paragraph 13a of that law.

14Under Chapter 1, Paragraph 13a, of the ML, new means of transport is to be understood as including vessels — with certain exceptions which are not relevant in the present case — exceeding 7.5 metres in length, provided that they are sold within three months of the date on which they first entered into service or have sailed for no more than 100 hours before the sale.

15Chapter 3, Paragraph 30a, of the ML provides that sales of new means of transport which are transported by or on behalf of the vendor or the purchaser from Sweden to another Member State are to be exempt from VAT, even if the purchaser is not registered for VAT purposes.

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

16X, a private individual who is resident in Sweden, intends to acquire in the United Kingdom a newly manufactured sailing boat exceeding 7.5 metres in length for private use. After delivery of the sailing boat, X intends to use it for recreational purposes in the Member State of supply for three to five months and thus to sail the boat for more than 100 hours. Alternatively, the boat is to be transported out of the United Kingdom immediately after delivery for similar use in Member States other than Sweden. In both cases, after the planned use, the boat is to be sailed to Sweden, which is the final destination.

17In order to clarify the tax consequences of the acquisition, X applied to the Skatterättsnämnden for a preliminary decision as to whether the acquisition would be taxed in Sweden in either of the two cases.

18The Skatterättsnämnden found that in both cases X must be regarded as making an intra-Community acquisition of a new means of transport for which he must pay VAT in Sweden. The Skatterättsnämnden’s reasoning was that the boat, on delivery from the shipyard, must be considered to be a new means of transport because, at the point in time when X acquires the right to dispose of the boat as owner, it will not have been used for more than three months since it first entered into service or have been sailed for more than 100 hours. The fact that those conditions will no longer be satisfied when the vessel does in fact reach Sweden has no bearing on that assessment. The Skatterättsnämnden further took the view that the transport begins at the time of the acquisition or the vendor’s delivery of the boat in question and that the place of the intra-Community acquisition is the place where the boat is at the time when transport of it ends, in this case Sweden.

19Taking the view that the envisaged acquisition should be taxed as a supply effected in the United Kingdom, X appealed against that preliminary decision to the Regeringsrätten. The Skatteverket, for its part, asked the referring court to uphold the preliminary tax decision.

20In those circumstances, the Regeringsrätten decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Are Articles 138 and 20 of [Directive 2006/112] to be interpreted as meaning that the transport out of the territory of the State of origin must begin within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(2) Similarly, are those articles to be interpreted as meaning that the transport must end in the country of destination within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(3) Would the answers to Questions 1 and 2 be affected if that which is acquired is a new means of transport and the person acquiring the goods is an individual who intends ultimately to use the means of transport in a particular Member State?

(4) In connection with an intra-Community acquisition, at which time must the assessment be made as to whether a means of transport is new in accordance with Article 2(2)(b) of Council Directive 2006/112/EC on the common system of value added tax?’

Grounds

Consideration of the questions referred for a preliminary ruling

The first and third questions

21By its first and third questions, which it is appropriate to examine together, the referring court asks, essentially, whether the first paragraph of Article 20 and Article 138(1) of Directive 2006/112 are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition is contingent on compliance with a requirement that the transport of the goods in question from the Member State of supply to the Member State of destination must be commenced or completed within a certain period of time. That court wishes to know, in particular, whether the fact that the matter involves a new means of transport which the purchaser, a private individual, intends to use in a certain Member State is of any significance in that regard.

22It should be borne in mind, as a preliminary point, that the transitional arrangements for 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) 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 (see, to that effect, Case C-409/04 Teleos and Others [2007] ECR I-7797, paragraphs 21, 22 and 36).

23Thus, the mechanism consisting, on the one hand, in an exemption granted by the Member State of departure, of the supply giving rise to the intra-Community dispatch or transport, together with a right to deduct or reimbursement of the input VAT paid in that Member State and, on the other hand, in 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 (see, to that effect, Case C-245/04 EMAG Handel Eder [2006] ECR I-3227, paragraph 40).

24As regards, in particular, the rules pertaining to the taxation of acquisitions of new means of transport, it can be seen from recital 11 in the preamble to Directive 2006/112, which reiterates the content of the 11th recital in the preamble to Directive 91/680, 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. If there were no transitional arrangements, the marketing of new means of transport would tend to be confined to Member States having a low VAT rate, to the detriment of the other Member States and their taxation revenue. As the Advocate General pointed out at point 34 of her Opinion, the European Union legislature has, by Article 2(1)(b)(ii) of Directive 2006/112, made the acquisition of new means of transport not only by taxable persons and non-taxable legal persons, but also by private persons, subject to tax, inter alia because of the high value and easy transportability of those goods.

25It is against that background and those objectives that the provisions alluded to in the questions referred to the Court must be interpreted.

26Regarding, in the first place, the question whether the transport of the goods in question to the purchaser, for the purposes of the first paragraph of Article 20 and Article 138(1) of Directive 2006/112, must take place within a certain period of time, it should be observed, at the outset, that those provisions lay down conditions which must be satisfied in order for a transaction to be classified as an intra-Community supply or acquisition.

27Thus, the intra-Community acquisition of goods takes place and the exemption of the intra-Community supply of goods becomes applicable only when the right 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 (see Teleos and Others, paragraph 42, and Case C-184/05 Twoh International [2007] ECR I-7897, paragraph 23).

28Moreover, the intra-Community supply of goods and their intra-Community acquisition are, in fact, one and the same financial transaction, such that the two provisions referred to in paragraph 26 of this judgment must be interpreted in such a way as to confer on them identical meaning and scope (see, regarding the first subparagraph of Article 28a(3) and the first subparagraph of Article 28c(A)(a) of the Sixth Directive, the contents of which correspond to the first paragraph of Article 20 and to Article 138(1) of Directive 2006/112 respectively, Teleos and Others, paragraphs 23 and 34).

29Next, it should be noted that the wording of neither the first paragraph of Article 20 nor Article 138(1) of Directive 2006/112 requires that the transport of the goods in question to the purchaser must be commenced or completed within any specific period of time in order for those provisions to be applicable.

30To impose a specific time period for that transport would, moreover, be contrary to the general scheme of those provisions as well as to the background and objectives of the transitional VAT arrangements applicable to intra-Community trade, as discussed in paragraphs 22 to 24 of this judgment.

31The application of a time period within which the transport of the goods to the purchaser must be commenced or completed would give purchasers the option of choosing the Member State where the acquisition of a new means of transport would be taxed according to the most favourable rates and terms. Such an opportunity would jeopardise the achievement of the objective of the transitional VAT arrangements applicable to intra-Community trade in that it would deprive those Member States where the actual final consumption takes place of the tax revenue which is rightfully theirs. Leaving such a choice to purchasers would also run counter to the objective of preventing distortions of competition between Member States in trade involving new means of transport.

32The case in the main proceedings illustrates how the principle of taxation in the Member State of destination would not be observed if a specific time period were imposed during which the transport of the goods in question to the purchaser must be commenced or completed. If X’s interpretation, to the effect that there is a strict time period during which the transport of the goods in question must be commenced, were to be upheld, it would suffice for X to delay the transport of the goods concerned to the Member State of destination in order to mask the intra-Community nature of the transaction or alter the allocation of authority to tax so that a Member State other than the Member State of destination had the authority to tax the transaction. In either case, the Kingdom of Sweden would be deprived of its tax revenue.

33Consequently, the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on observance of a specific time period during which the transport of the goods supplied or acquired must be commenced or completed. However, in order for such a classification to be made and the place of acquisition determined, a temporal and material link must be established between the supply of the goods in question and the transport of those goods, as well as continuity in the course of the transaction.

34Lastly, that interpretation cannot be called into question by X’s argument to the effect that the rules in force in the United Kingdom provide for a specific period of time during which the goods concerned must be transported outside the national territory in order for the authorities of that Member State to refrain from charging VAT. X submits that, if the transport of the goods is not carried out within that time period, the VAT is payable to the United Kingdom and that, if the Kingdom of Sweden also charges the tax as being on an intra-Community acquisition, that gives rise to double taxation.

35As is clear from Article 131 of Directive 2006/112, it is for the Member States 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. It is important to note, however, that when they exercise their powers, Member States must 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 (see, to that effect, Case C-384/04 Federation of Technological Industries and Others [2006] ECR I-4191, paragraphs 29 and 30, and Case C-271/06 Netto Supermarkt [2008] I-771, paragraph 18).

36In particular, as regards the principle of proportionality, the Court has held that, in accordance with that principle, the 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 European Union legislation (see Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others [1997] ECR I-7281, paragraph 46; and also Teleos and Others, paragraph 52, and Netto Supermarkt, paragraph 19).

37Moreover, the measures which the Member States adopt to that end may not be used in such a way as to undermine the neutrality of VAT (see Case C-454/98 Schmeink & Cofreth and Strobel [2000] ECR I-6973, paragraph 59; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 92; and also C-146/05 Collée [2007] ECR I-7861, paragraph 26).

38It follows that, where a Member State charges VAT on a transaction which fulfils the objective conditions to qualify as an intra-Community supply on the ground of non-compliance with a transport time period laid down in its domestic legislation, it must grant reimbursement of the tax thus charged in order to avoid double taxation which may arise as a result of the exercise by the Member State of its powers of taxation. Under Article 21 of Council Regulation (EC) No 1777/2005 of 17 October 2005 laying down implementing measures for Directive 77/388/EEC on the common system of value added tax (OJ 2005 L 288, p. 1), the Member State in which the dispatch or transport ends is to exercise its power of taxation irrespective of the VAT treatment applied to the transaction in the Member State in which the dispatch or transport began.

39As regards, in the second place, intra-Community acquisitions of new means of transport by persons not subject to VAT, the same considerations apply as to the time period during which the transport of the goods to the purchaser must take place. The interpretation to the effect that there is no time period for transport is all the more compelling in the light of the fact that, as observed in paragraphs 31 and 32 of this judgment, the presence of a strict time period would allow purchasers to circumvent not only the objective of conferring authority to tax on the Member State of final consumption of the goods concerned, but also the aim of preventing distortions of competition between Member States, which is a distinct objective pursued by the European Union rules pertaining to taxation of intra-Community acquisitions of new means of transport.

40Nevertheless, in order to provide the national court with an answer that is helpful to it in deciding the dispute before it, it is appropriate to specify the conditions under which the acquisition of a new means of transport effected by an individual with the intention of using the goods concerned in a certain Member State should be classified as an intra-Community acquisition.

41In that regard, regard should be had to the settled case-law, according to which the expressions which define taxable transactions for the purposes of the common system of VAT are objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-483, paragraph 44, and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 41). Consequently, it is necessary that the classification of intra-Community supplies and acquisitions be made on the basis of objective matters, such as the physical movement of the goods concerned between Member States (Teleos and Others, paragraph 40).

42As regards new means of transport, however, the application of the rule referred to in the preceding paragraph to intra-Community transactions involving such goods is not a simple matter, given the particular nature of those transactions.

43In that regard, it is difficult, first of all, to distinguish the transport of means of transport from their use. Secondly, the classification of the transaction is complicated by the fact that 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. Moreover, 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.

44In those circumstances, 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.

45In that regard, as the Advocate General stated at point 38 of her Opinion, significance may be attached to factors such as the amount of time spent on transporting the goods in question, 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.

46In the specific case of the acquisition of a sailing boat, such as in the main proceedings, relevance may also be attached to the flag Member State and the place where the sailing boat will usually be moored and anchored and where it will be stored in the winter.

47Moreover, in the specific case of the acquisition of a new means of transport, account must also be taken, as far as possible, of the purchaser’s intentions at the time of the acquisition, provided that they are supported by objective evidence (see, by analogy, regarding entitlement to deduction, Case 268/83 Rompelman [1985] ECR 655, paragraph 24; Case C-230/94 Enkler [1996] ECR I-4517, paragraph 24; and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 47). That is all the more necessary in a situation where the purchaser acquires the right to dispose of goods in question as owner in the Member State of supply and undertakes to transport them to the Member State of destination.

48However, contrary to X’s submissions, it cannot be required, in the context of an intra-Community acquisition, that the transport of a means of transport be carried out immediately after its supply, that it be uninterrupted and that the goods in question not be used in any manner whatsoever before or during said transport.

49First, to impose such rigorous conditions would leave it open to the purchaser to choose the Member State in which the means of transport in question are to be taxed, which would run counter to the purpose of Directive 2006/112. Secondly, as rightly observed by the Swedish Government at the hearing, there is no reason to apply differential tax treatment according to whether the boat is transported into Sweden on a trailer or is sailed in.

50The essential issue is, in fact, to determine the Member State in which the final, permanent use of the means of transport will take place. In that regard, the use of the means of transport, even for leisure purposes, represents only a negligible period of time in relation to the usual lifespan of a means of transport.

51In view of the foregoing considerations, the answer to the first to third questions is that the first paragraph of Article 20 and Article 138(1) of Directive 2006/112 are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on the observance of any time period during which the transport of the goods in question from the Member State of supply to the Member State of destination must be commenced or completed. In the specific case of the acquisition of a new means of transport within the meaning of Article 2(1)(b)(ii) of that directive, the determination of the intra-Community nature of the transaction must be made through an overall assessment of all the objective circumstances and the purchaser’s intentions, provided that it is supported by objective evidence which make it possible to identify the Member State in which final use of the goods concerned is envisaged.

The fourth question

52By its fourth question, the referring court asks at which time the assessment must be made, in the case of an intra-Community acquisition, as to whether a means of transport is new in accordance with Article 2(2)(b) of Directive 2006/112.

53It should be observed, in that regard, that it is clear from the wording of that provision that such an assessment must be made at the time of supply of the goods in question and not at the time of arrival of those goods in the Member State of destination. As regards sailing vessels, Article 2(2)(b)(ii) of Directive 2006/112 provides that such means of transport are regarded as new where the supply takes place within three months of the date of first entry into service or where the vessel has sailed for no more than 100 hours.

54Moreover, under the second paragraph of Article 68 of that directive, the intra-Community acquisition of goods is made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State. Under Article 14(1) of that directive, ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner.

55It follows that whether or not a means of transport which is the subject-matter of an intra-Community acquisition is to be regarded as ‘new’ is determined at the time when the right to dispose of those goods as owner is transferred from the vendor to the purchaser.

56That interpretation is not affected by the fact that, under Article 40 of Directive 2006/112, the place of an intra-Community acquisition of goods is to be deemed to be the place where dispatch or transport of the goods to the person acquiring them ends. That provision has no bearing on the determination of whether a means of transport is new, as its purpose relates to the attribution of authority to tax on the intra-Community acquisition to the Member State of destination.

57The answer to the fourth question is accordingly that the assessment of whether a means of transport which is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112 must be made at the time of the supply of the goods in question by the vendor to the purchaser.

Costs

58Since 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 (Second Chamber) hereby rules:

1. The first paragraph of Article 20 and Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, are to be interpreted as meaning that the classification of a transaction as an intra-Community supply or acquisition cannot be made contingent on the observance of any time period during which the transport of the goods in question from the Member State of supply to the Member State of destination must be commenced or completed. In the specific case of the acquisition of a new means of transport within the meaning of Article 2(1)(b)(ii) of that directive, the determination of the intra-Community nature of the transaction must be made through an overall assessment of all the objective circumstances and the purchaser’s intentions, provided that it is supported by objective evidence which make it possible to identify the Member State in which final use of the goods concerned is envisaged.

2. The assessment of whether a means of transport which is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112 must be made at the time of the supply of the goods in question by the vendor to the purchaser.

[Signatures]

OPINION OF ADVOCATE GENERAL KOKOTT delivered on 6 May 2010

I — Introduction

1By this reference, the Regeringsrätten (Supreme Administrative Court), Sweden, is seeking an interpretation by the Court of Justice of the rules on intra-Community acquisitions in Council Directive 2006/112/ EC of 28 November 2006 on the common system of value added tax (VAT) (‘Directive 2006/112’).

2The specific issue concerns the tax treatment of the acquisition of a new sailing boat of which the purchaser X intends to take possession in the United Kingdom, to use there or in another Member State for three to five months and then to transport to his place of residence in Sweden. X takes the view that that constitutes a supply within the territory of a Member State, taxable in the State of origin. The Swedish tax authority, however — supported in the proceedings before the Court of Justice by the German Government and the Commission — considers that (despite the interval in time) it amounts to an intra-Community acquisition in Sweden.

II — Legal framework

A — European Union law

3Recital 11 in the preamble to Directive 2006/112 reads:

‘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 5. Article 2(2) of Directive 2006/112 also by that Member State, in so far as such trans- provides:

actions would, in the absence of special provisions, be likely to cause significant distortion of competition between Member States.’ ‘(a) For the purposes of point (ii) of para-

4The relevant passages of Article 2(1) of Directive 2006/112 read as follows:

‘The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

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

graph 1(b), the following shall be regarded as “means of transport”, where they are intended for the transport of persons or goods:

…

(ii) vessels exceeding 7.5 metres in length, with the exception of vessels used for navigation on the high seas and carrying passengers for reward, and of vessels used for the purposes of commercial, industrial or fishing activities, or for rescue or assistance at sea, or for inshore fishing;

… (b) These means of transport shall be regard-…

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

…’

ed as “new” in the cases:

…

(ii) of vessels, where the supply takes place within three months of the date of first entry into service or where the vessel has sailed for no more than 100 hours;

… (c) Member States shall lay down the conditions under which the facts referred to in point (b) may be regarded as established.’

6Article 14(1) of Directive 2006/112 defines the term ‘supply of goods’ as follows:

‘1. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.’

7Under Article 20(1) of Directive 2006/112, ‘[i]ntra-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’.

8Under Article 40 of Directive 2006/112, the place of an intra-Community acquisition of goods is deemed to be the place where dispatch or transport of the goods to the person acquiring them ends.

9Article 68 of Directive 2006/112 provides that the time of occurrence of the chargeable event in the case of an intra-Community acquisition of goods is when the intra-Community acquisition of goods is made. Under Article 68, the acquisition is regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State.

10Article 138 of Directive 2006/112 provides for exemption of intra-Community supplies as follows:

‘1. Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, 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 supply of goods referred to in paragraph 1, Member States shall exempt the following transactions:

(a) the supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the Community, 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;

…’

B — Swedish law

11Under Chapter 1, Paragraph 1, of the Mervärdesskattelagen (Law on value added tax) (1994:200) (‘the ML’), VAT is to be paid to the State on, inter alia, sales within the State of taxable goods as part of a business activity and for taxable intra-Community acquisitions of goods which are movable property. Under Chapter 2a, Paragraph 3, of the ML, goods are to be regarded as acquired by means of an intra-Community acquisition if the acquisition concerns a new means of transport such as those mentioned in Chapter 1, Paragraph 13a.

12Chapter 3, Paragraph 30a, of the ML provides that sales of new means of transport which are transported by or on behalf of the vendor or the purchaser from Sweden to another Member State are to be exempt from tax, even if the purchaser is not identified for VAT purposes.

13Under Chapter 2a, Paragraph 2, of the ML, ‘intra-Community acquisition’ means that someone acquires goods for consideration in a case where the goods are transported to the person acquiring the goods in Sweden from another Member State by or on behalf of the person acquiring the goods or the vendor.

14Under Chapter 1, Paragraph 13a, of the ML, new means of transport is to be understood as including vessels — with certain exceptions which are not relevant in the present case — exceeding 7.5 metres in length, provided that they are sold within three months of the date on which they first entered into service or have sailed for no more than 100 hours before the sale.

III — Facts and questions referred for a preliminary ruling

15The private individual X, who is resident in Sweden, intends to acquire in the United Kingdom a sailing boat exceeding 7.5 metres in length for his private use. After delivery of the sailing boat, X intends to use it for recreational purposes in the State of origin for three to five months and thereby to sail the boat for more than 100 hours or to transport it out of the State of origin immediately after delivery for similar use in a Member State other than Sweden. In both cases, following the planned use, the boat is to be sailed to Sweden, the final destination.

16In order to clarify the tax consequences of the acquisition, X applied to the Skatterättsnämnd (Revenue Law Commission) for a preliminary decision and asked whether the acquisition would be taxed in Sweden in either of the two cases.

17The Skatterättsnämnd found that in both cases there was a taxable intra-Community acquisition of a new means of transport, resulting in X being liable to tax in Sweden. X is now appealing against that preliminary decision to the Regeringsrätten. He takes the view that the supply of the boat should be taxed as a supply within the territory of the United Kingdom. In the light of the foregoing, the Regeringsrätten has submitted the following questions to the Court of Justice for a preliminary ruling, pursuant to its order of 16 February 2009:

‘(1) Are Articles 138 and 20 of Council Directive 2006/112/EC on the common system of value added tax to be interpreted as meaning that the transport out of the territory of the State of origin must begin within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(2) Similarly, are those articles to be interpreted as meaning that the transport must end in the country of destination within a certain period of time for the sale to be exempt from tax and for there to be an intra-Community acquisition?

(3) Would the answers to Questions 1 and 2 be affected if that which is acquired is a new means of transport and the person acquiring the goods is an individual who intends ultimately to use the means of transport in a particular Member State?

(4) In connection with an intra-Community acquisition, at which time must the assessment be made as to whether a means of transport is new in accordance with Article 2(2)(b) of Council Directive 2006/112/EC on the common system of value added tax?’

18X, the Skatteverket (the local tax board), the German Government and the European Commission submitted written observations to the Court of Justice. X, the Swedish Government and the Commission presented their oral arguments at the hearing.

IV — Legal assessment

A — The first, second and third questions referred for a preliminary ruling

19The first three questions referred for a preliminary ruling, which will be examined jointly, are intended to shed light on the conditions for the existence of an intra-Community acquisition under Article 20 of Directive 2006/112 or a tax-exempt intra-Community supply under Article 138 of the directive, where the goods concerned are not transported immediately from the State of origin to the State of destination. The Regeringsrätten also asks whether it is significant in that context that the goods acquired are a new means of transport and the person acquiring them an individual who intends ultimately to use the means of transport in a particular Member State (third question).

20Under Article 2(1)(b)(ii) of Directive 2006/112, in conjunction with Article 2(2)(a)(ii) of that directive, the intra-Community acquisition of a new vessel exceeding 7.5 metres in length by a non-taxable person is to be taxed in the territory of the State of intra-Community acquisition.

21Article 20 of the directive defines the intra-Community acquisition of goods as the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods, by or on behalf of the vendor or the person acquiring the goods, in a Member State other than that in which dispatch or transport of the goods began.

22Correspondingly, Article 138(1) of Directive 2006/112 attaches to tax exemption of an intra-Community supply the condition that the goods in question be dispatched or transported by or on behalf of the vendor or the person acquiring the goods to a destination outside their respective territory but within the European Union.

23The intra-Community acquisition as a chargeable event is therefore subject to two conditions: first, the person acquiring the goods must acquire the right to dispose of them as owner; second, the goods must be dispatched or transported from the State of origin to another Member State. In order for the supply to be tax-exempt in the Member State of origin, that second condition must also be fulfilled. According to the case-law of the Court, it is necessary that the classification of intra-Community supplies and acquisitions be made on the basis of objective matters, such as the physical movement of the goods concerned between Member States.

24It is not apparent, however, from the wording of those provisions what temporal or substantive correlation there must be between the assumption of ownership rights and the beginning or ending of transport to another Member State.

25X takes the view that there is no longer an intra-Community acquisition where the sailing boat has been used for longer than three months or 100 hours before transport to the Member State of destination begins. Its entry into service in the Member State of origin should not be regarded as the beginning of its transport unless the journey to the port of destination begins immediately. The period of time in question must be clear, on grounds of legal certainty.

26The other parties to the proceedings contend, however, that the process should be considered as a whole, with the temporal correlation between handover to the person acquiring the goods and their dispatch or transport being just one of several factors to be taken into account. If it is established from the outset that the goods are finally to be used in a different Member State from the Member State of origin, that is of vital significance for the conclusion that there is an intra-Community acquisition in the State of destination.

27It is questionable which of the two view-points most closely corresponds to the spirit and purpose of the rules on intra-Community acquisitions. It is necessary, first, to recall the background to the introduction of legislation on intra-Community trade.

28VAT taxes private consumption within the territory of a Member State. Thus, the supply of goods and the provision of services within the territory of a Member State is subject to VAT (Article 2(1)(a) and (c) of Directive 2006/112). Intra-Community acquisitions and the importation of goods are also subject to VAT (Article 2(1)(b) and (d) of Directive 2006/112). The last two chargeable events ensure that goods are subject to VAT in the State of acquisition or importation in which they are intended for private consumption.

29Intra-Community acquisition as a chargeable event was introduced on 1 January 1993 as a transitional arrangement for the taxation of trade between Member States. Before that, supplies of goods between two Member States were classified in the same way as supplies in other international trade. The crossing of the frontier on import or export was then the decisive chargeable event for taxation purposes. With the realisation of the internal market, controls at internal frontiers were abolished, which required a recasting of the VAT rules for intra-Community trade.

30The reform did not, however, go so far as to extend the rules on supplies of goods within the territory of a Member State to trade between two Member States. That would have meant that the right to levy VAT would reside not with the State into which the goods were imported and in which they were consumed but with the State from which they were dispatched. It is rather the case that the transitional arrangements leave the pre-existing distribution of tax sovereignty between Member States untouched.

31In order to ensure that the right to levy VAT continues to belong to the Member State of final consumption, intra-Community acquisition was introduced as a new chargeable event, together with an exemption for internal supply between Member States.

32Dispatch or transport to another Member State is therefore of crucial importance to the distinction between supply within the territory of a Member State and an intra-Community supply. That criterion serves to allocate authority to tax to the State of supply or the State of destination according to the final consumption of the goods.

33In addition to the division of authority to tax, as indicated by recital 11 in the preamble to Directive 2006/112, the rules on taxation of the intra-Community acquisition of new means of transport also specifically pursue the aim of preventing distortions of competition due to different rates of tax in the Member States.

34Whereas, under Article 2(1)(b)(i) of Directive 2006/112, only an intra-Community acquisition by taxable persons and nontaxable legal persons is generally subject to tax, the legislature has also made the acquisition of new means of transport by private persons subject to tax. Because of the high value and easy transportability of those goods, there would be an incentive for private individuals to acquire means of transport in Member States with a low rate of VAT, if the supply were to be taxed in the Member State of origin. Taxation in the State of intra-Community acquisition ensures that the person acquiring the goods has to pay the same amount of tax irrespective of the State from which he obtains the means of transport. The rules therefore preclude traders in means of transport from obtaining a competitive advantage only because a lower rate of VAT is charged in their State of establishment.

35The interpretation of the legislation on intra-Community supplies and intra-Community acquisitions must ensure that the division of tax sovereignty and equal conditions of competition cannot be circumvented by targeted tax arrangements.

36As rightly argued by the Skatteverket, the German Government and the Commission, without the link to the place of consumption taxable persons could decide arbitrarily where the acquisition of a new means of transport was to be taxed if the transfer of power to impose taxes to the State of intra-Community acquisition were to depend solely on that means of transport leaving the State of origin or arriving in the State of destination within a certain period of time after the supply. Even unintended transport delays could trigger a transfer of the power to impose taxes, even though the goods in question were undoubtedly intended for final consumption in a different Member State from the State of supply.

37Rather than being based on rigid time-limits, which the directive itself also declines to lay down, the Member State in which final consumption is to take place has to be determined in the light of an overall consideration of all material circumstances. In that context, the primary focus should be on objective matters.

38In the present case, apart from the time at which transport comes to an end, significance can also be attached to where the sailing boat is registered and where the person acquiring it has a permanent mooring facility for the boat. The place of residence of a private individual acquiring goods can also be an indication of where the boat is ultimately to be permanently used. When determining the end of the period of time, the distance between the State of supply and the State of destination and the lifespan of the goods supplied can inter alia also play a role. If conveyance of the means of transport takes only a very insignificant period of time in comparison with its overall lifespan, it is to be expected that consumption of the goods will essentially take place in the State of destination.

39Although the expressions intra-Community supply and intra-Community acquisition are objective in nature and apply without regard to the purpose or results of the transactions concerned, it is nevertheless necessary to have regard to the intentions of the person acquiring the goods in relation to the place of their final use, as evidenced by objective circumstances and expressed by him at the time of supply. The vendor must already know when the invoice is issued whether he has to charge VAT or may refrain from doing so because it is an exempt intra-Community supply.

40In addition, under Article 68 of Directive 2006/112, the intra-Community acquisition as a chargeable event occurs as soon as a corresponding supply is regarded as being made within the territory of a Member State. Under Article 63 in conjunction with Article 14 of the directive, the decisive time for that purpose is when the person acquiring the goods acquires the right to dispose of tangible property as owner. If the person acquiring the goods receives them in the State of origin itself, the condition for supply within the territory of a Member State is already satisfied. The question whether it is instead actually an intra-Community acquisition in another Member State can be established at that time only on the basis of information provided by the person acquiring the goods regarding their proposed transport to another Member State and their final use there.

41The intra-Community acquisition of a means of transport by a private individual constitutes a special case in that respect. First, it is unusual to have a person who is not taxable per se who satisfies the conditions of a chargeable event. Second, the present case displays a peculiarity in that the bringing of a means of transport into service by a private person acquiring goods in the Member State of origin is often not clearly distinguishable from the beginning of transport to the State of destination.

42However, not even those special circumstances lead to the conclusion that, when distinguishing a supply within the territory of a Member State from an intra-Community acquisition, a certain period of time between the handover of the means of transport to the person acquiring it and the beginning of the transport of the means of transport from the territory of the State of origin to the State of destination is alone decisive. The aim of preventing distortions of competition pursued by the special provision in Article 2(1)(b)(ii) in conjunction with Article 2(a)(ii) of Directive 2006/112 specifically requires, in that context, not that regard be had merely to the passage of time, but also that there be an overall consideration of all the circumstances, including the intentions of the person acquiring the goods, as confirmed by objective evidence.

43X is nevertheless of the opinion that the principle of legal certainty requires a certain period of time to be laid down.

44According to established case-law, the principle of legal certainty 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 extent of the obligations which they impose on them.

45The Court has also refused in principle, on grounds of legal certainty, to make classification as an intra-Community transaction contingent solely on the supplier’s or purchaser’s intention to effect such a transaction. However, that conclusion is based on the consideration that the tax authorities should be spared the duty of carrying out inquiries to determine the intention of the taxable person. The Court has also made an express reservation for exceptional cases.

46It is therefore not contrary to the principle of legal certainty for classification as an intra-Community acquisition in a case such as the present one to be made contingent on an overall consideration of all the circumstances, including the place where the goods are intended to be used, as expressed by the person acquiring the goods and confirmed by objective evidence. That approach does not, in particular, lead to an obligation on the person acquiring the goods to pay tax on the intra-Community acquisition in a manner that is unforeseeable, since it is based on his own information regarding their final consumption.

47According to X, exemption for an intra-Community supply in the United Kingdom is contingent, however, on the sailing boat leaving the territory of that Member State within two months. He claims that there would then be a risk of double taxation if the supply were to be liable after that period had expired to tax in the State of origin as supply in the territory of a Member State but were at the same time to constitute a taxable intra-Community acquisition in the State of destination.

48In that regard, it should be pointed out that the intra-Community supply of goods and their intra-Community acquisition are, in fact, one and the same financial transaction, even though the latter creates different rights and obligations both for the parties to the transaction and for the tax authorities of the Member States concerned.

49Admittedly, where an intra-Community acquisition of goods has taken place, the Member State in which the dispatch or transport of those goods ends exercises its power of taxation pursuant to Article 21 of Council Regulation (EC) No 1777/2005 laying down implementing measures for Directive 77/388/ EEC on the common system of value added tax, irrespective of the VAT treatment applied to the transaction in the Member State in which the dispatch or transport began. However, the two Member States must then observe a uniform interpretation of the provisions on exemption for intra-Community supplies (Article 138 of Directive 2006/112) and the taxation of intra-Community acquisitions (Article 20 of Directive 2006/112).

50In view of the temporal and substantive correlation between the supply and dispatch or transport to the State of destination, those provisions must be interpreted in such a way as to confer on them the same meaning and scope. Otherwise, the exemption of an in-tra-Community supply does not perform its function of avoiding the double taxation of supplies in intra-Community trade and hence guaranteeing fiscal neutrality.

51It should also be mentioned that the exemption from tax of intra-Community supplies under Article 131 of Directive 2006/112 applies in accordance with conditions which the Member States lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. That in principle includes the possibility of the Member State of origin laying down certain periods of time within which the goods subject to an intra-Community supply must generally have left the territory of that State.

52However, when they exercise their powers, Member States must 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. The measures which the Member States may adopt in order to ensure the correct levying and collection of the tax and for the prevention of fraud may not be used in such a way as to undermine the neutrality of VAT.

53National legislation that links exemption of an intra-Community supply to adherence to certain periods of time for dispatch or transport must therefore display sufficient flexibility for exemption to be granted in particular cases even where the goods have in fact left the territory of the State in question after a somewhat longer period of time and, on an overall consideration of all the circumstances, it is established that their final use is to take place in another Member State. In those circumstances, there must at least be the possibility of a subsequent adjustment of the tax assessment if tax revenue was not jeopardised and the parties concerned acted in good faith.

54The answer to the first to third questions referred for a preliminary ruling is therefore that the classification of a transaction concerning a new vessel exceeding 7.5 metres in length as an intra-Community supply exempt from tax under Article 138 of Directive 2006/112 and as an intra-Community acquisition taxable in the State of destination under Article 20 of that directive does not depend only on the condition that the vessel leave the Member State of origin or arrive in the Member State of destination within a certain period of time. Such classification should rather be made on the basis of an overall consideration of all the objective circumstances and having regard to the intention of the person acquiring the goods concerning their final consumption, as confirmed by factual evidence.

B — The fourth question referred for a preliminary ruling

55By its fourth question, the Regeringsrätten wishes to know what the decisive point in time is for the assessment as to whether a means of transport is new within the meaning of Article 2(2)(b) of Directive 2006/112.

56X takes the view that the relevant point in time is the date on which the vessel reaches the State of destination.

57The answer to the fourth question is therefore that, in order to determine whether a means of transport that is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112, it is necessary to take into considerartion the moment when the goods in question were supplied by the vendor to the purchaser.

58As the German Government argues, reliance upon the time of arrival in the State of destination could provide the taxable person with an opportunity of influencing the place of taxation by delaying transport, and hence arrival in the State of destination, beyond the three-month period laid down in Article 2(2)(b)(ii) of Directive 2006/112. That would conflict with the allocation of authority to tax according to the place of de facto consumption.

59There would also be the risk of transactions being entirely tax-exempt. A taxable person in X’s situation could therefore export a boat from the State of origin by claiming exemption for intra-Community supplies, spend over 100 hours or three months on the high seas or in a third country and only take the boat to the State of destination thereafter. If its classification as a new vessel were to depend upon the time of its arrival in the State of destination, it would then no longer be a taxable intra-Community acquisition.

60The question whether a means of transport is new within the meaning of Article 2(2)(b)(ii) of Directive 2006/112 must therefore be assessed at the time of supply and not at the time of arrival in the State of destination.

61That conclusion does not moreover conflict with Article 40 of Directive 2006/112. Under that provision, the place of an intra-Community acquisition of goods is deemed to be the place where dispatch or transport of the goods to the person acquiring them ends. The only purpose of that provision is to allocate the right to levy tax on an intra-Community acquisition to the State of destination. It does not say whether the goods in question have to be new on their arrival in that State.

62The answer to the fourth question referred for a preliminary ruling is therefore that, when assessing in the context of an in-tra-Community acquisition whether a means of transport is new within the meaning of Article 2(2)(b) of Directive 2006/112, the time of supply is decisive.

V — Conclusion

63In conclusion, I propose that the questions referred to the Court by the Regeringsrätten be answered as follows:

‘(1) The classification of a transaction concerning a new vessel exceeding 7.5 metres in length as an intra-Community supply exempt from tax under Article 138 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and as an intra-Community acquisition taxable in the State of destination under Article 20 of that directive does not depend only on the condition that the vessel leave the Member State of origin or arrive in the Member State of destination within a certain period of time. Such classification should rather be made on the basis of an overall consideration of all the objective circumstances and having regard to the intention of the person acquiring the goods concerning their final consumption, as confirmed by factual evidence.

(2) In order to determine whether a means of transport that is the subject-matter of an intra-Community acquisition is new within the meaning of Article 2(2)(b) of Directive 2006/112, it is necessary to take into consideration the moment when the goods in question were supplied by the vendor to the purchaser.’

Notes

(1) Original language: German.

(2) OJ 2006 L 347, p. 1.

(3) Case C-409/04 Teleos and Others [2007] ECR I-7797, paragraph 40.

(4) See points 24 to 29 of my Opinion delivered in Case C-409/04 Teleos and Others [2007] ECR I-7797, and points 19 to 25 of my Opinion delivered in Case C-245/04 EMAG Handel Eder [2006] ECR I-3227.

(5) See Case C-245/04 EMAG Handel Eder [2006] ECR I-3227, paragraphs 31 and 40; Teleos and Others, cited in footnote

(3) , paragraph 36; Case C-146/05 Collée [2007] ECR I-7861, paragraph 22; and Case C-184/05 Twoh International [2007] ECR I-7897, paragraph 22.

(6) 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).

(7) See EMAG Handel Eder, cited in footnote 5, paragraph 27, and Teleos and Others, cited in footnote 3, paragraph 22, in each case with reference to the 7th to 10th recitals in the preamble to Directive 91/680.

(8) Under Article 2(2)(a)(ii) of Directive 2006/112 the taxation of acquisitions by private persons only applies to vessels exceeding 7.5 metres in length.

(9) T eleos and Others, cited in footnote 3, paragraph 38, referring to Joined Cases C-354/03, C-355/03 and C-484/03 Optigen and Others [2006] ECR I-483, paragraph 44, and Joined Cases C-439/04 and C-440/04 Kittel and Recolta Recycling [2006] ECR I-6161, paragraph 41.

(10) A ccording to case-law, regard is also to be had to the use intended by the person acquiring the goods, as confirmed by objective evidence, when establishing whether the goods are to be used in the course of an economic activity within the meaning of Article 4(1) of 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) or Article 9(1) of Directive 2006/112 so that there is an entitlement to deduct input tax (see Case

(268) /83 Rompelman [1985] ECR 655, paragraph 24, and Case C-400/98 Breitsohl [2000] ECR I-4321, paragraphs 34 to 39). When determining the scope of the right to deduct input tax, the criterion is also the use to which goods are put, or are intended to be put (see Case C-63/04 Centralan Property [2005] ECR I-11087, paragraph 54).

(11) S ee Case 326/85 Netherlands v Commission [1987] ECR

(509) 1, paragraph 24; Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 72; and Teleos and Others, cited in footnote 3, paragraph 46.

(12) Case C-4/94 BLP Group [1995] ECR I-983, paragraph 24; Optigen and Others, cited in footnote 9, paragraph 45; Kittel and Recolta Recycling, cited in footnote 9, paragraph 42; Teleos and Others, cited in footnote 3, paragraph 39; and Case C-29/08 AB SKF [2009] ECR I-10413, paragraph 77.

(13) T eleos and Others, cited in footnote 3, paragraph 23.

(14) OJ 2005 L 288, p. 1.

(15) See, in this vein, Teleos and Others, cited in footnote 3, paragraph 34.

(16) T eleos and Others, cited in footnote 3, paragraph 25, and Collée, cited in footnote 5, paragraph 23.

(17) See, in this vein, Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others [1997] ECR I-7281, paragraph 48; Case C-384/04 Federation of Technological Industries and Others [2006] ECR I-4191, paragraphs 29 and 30; and Teleos and Others, cited in footnote

(3) , paragraph 45.

(18) See, in this vein, Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 52; Halifax and Others, cited in footnote 11, paragraph 92; and Teleos and Others, cited in footnote 3, paragraph 46.

(19) See, in this vein, Collée, cited in footnote 5, paragraphs 31,

(35) and 37.

(20) See also points 38 and 39 of this Opinion.