On July 12, 2018 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Sharpston in the Case C-495/17, Cartrans Spedition Srl versus Direcţia Generală Regională a Finanţelor Publice Ploieşti - Administraţia Judeţeană a Finanţelor Publice Prahova Direcţia Regională a Finanţelor Publice Bucureşti - Administraţia Fiscală pentru Contribuabili Mijlocii (ECLI:EU:C:2018:573) was published.
By this request for a preliminary ruling the Tribunalul Prahova (Tribunal, Prahova, Romania) seeks guidance on the interpretation of Council Directive 2006/112/EC. 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.
Facts, procedure and the questions referred
· Cartrans 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 16 203 Romanian lei (RON) (approximately EUR 3 650).
· The 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.
· Cartrans 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. 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.
· The 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:
‘(1) 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??
(2) 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?’
· Written observations were submitted by Cartrans, the Romanian Government and the European Commission. No hearing was requested and none was held.
The Advocate General suggests 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.
From the assessment as made by the Advocate General
· The 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. 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.
· The 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. 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.
· In 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
· The 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.
· The 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.
· I also disagree with the Romanian Government.
· There 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.
· The 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.
· The 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. Those are matters for the referring court to assess in its examination of the facts and circumstances of the case at issue.
· The 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’).
· It 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.
· Moreover, 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).
· From 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.
· Pursuant 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.
· The 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. In accordance with the Court’s settled case-law, that principle is applied rigorously in instances where the legislation concerned introduces fiscal charges. 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.
· The 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.
· As 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. Thus, national rules should not go beyond what is necessary to preserve or safeguard the public purse. 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. 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.
· Those 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.
· The 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. There are only two instances in which the failure to comply with formal requirements has led to losing a right to exemption from VAT. One is in cases of fraud. 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.
· It 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.
· It 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. 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.
· It 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.
· Should the TIR carnet be regarded as definitive proof that the goods concerned were exported?
· There 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.
· Cartrans 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.
· It 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.
· In his Opinion in BGL, Advocate General Léger 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.
· The 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.
· That 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’.
· As the customs regime for transit (of which TIR operations form part) and export are distinct, 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.
· As 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 exportationor importationof goods.
· In 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.
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