ECJ C-791/22 (Hauptzollamt Braunschweig) – Judgment – Customs Code can not apply to determine the place of supply for import VAT

On January 18, 2024, the ECJ issued its decision in the case C-791/22 (Hauptzollamt Braunschweig).

Context: Preliminary ruling – Common system of value added tax – Directive 2006/112/EC – Article 30(1) – Article 60 – Article 71(1) – Place of taxable transaction – Items sold in a first Member State in breach of customs regulations brought into the customs territory of the European Union and subsequently transported to a second Member State – place where the import VAT is incurred – national provision referring to the customs law of the Union

Article in the EU VAT Directive

Articles 30, 60, 62, 70, 71 of the EU VAT Directive 2006/112/EC.

Article 30 (Taxable transaction – Importation of Goods)
‘Importation of goods’ shall mean the entry into the Community of goods which are not in free circulation within the meaning of Article 24 of the Treaty.
In addition to the transaction referred to in the first paragraph, the entry into the Community of goods which are in free circulation, coming from a third territory forming part of the customs territory of the Community, shall be regarded as importation of goods.

Article 60 (Place of supply – Importation of Goods)
The place of importation of goods shall be the Member State within whose territory the goods are located when they enter the Community.

Article 62 (Chargeable event)
For the purposes of this Directive:
(1) ‘chargeable event’ shall mean the occurrence by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled;
(2) VAT shall become ‘chargeable’ when the tax authority becomes entitled under the law, at a given moment, to claim the tax from the person liable to pay, even though the time of payment may be deferred.

Article 70 (Chargeable event – Importation of Goods)
The chargeable event shall occur and VAT shall become chargeable when the goods are imported.

Article 71
1. Where, on entry into the Community, goods are placed under one of the arrangements or situations referred to in Articles 156, 276 and 277, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the chargeable event shall occur and VAT shall become chargeable only when the goods cease to be covered by those arrangements or situations.
However, where imported goods are subject to customs duties, to agricultural levies or to charges having equivalent effect established under a common policy, the chargeable event shall occur and VAT shall become chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.
2. Where imported goods are not subject to any of the duties referred to in the second subparagraph of paragraph 1, Member States shall, as regards the chargeable event and the moment when VAT becomes chargeable, apply the provisions in force governing customs duties.

Facts

The applicant is contesting the assessment of import VAT on smuggled cigarettes. On 29 September 2012, at a market in Słubice (Poland), the applicant, who is resident in Poland, acquired a total of 43 760 cigarettes, to which only Ukrainian and Belarussian revenue stamps were affixed. Without informing the customs authorities, he transported those cigarettes to Germany, where he delivered them to his German buyer near Braunschweig on 2 October 2012. On making the delivery, the applicant was arrested and the cigarettes were seized and subsequently destroyed.
By tax notice of 3 February 2015, the defendant assessed import VAT for the cigarettes at EUR 2 006.38. The cigarettes had been unlawfully introduced into the customs territory of the European Union. The customs debt had therefore been incurred pursuant to Article 202(1)(a) of the Customs Code. Since the applicant should have been aware of this, he was a debtor under the third indent of Article 202(3) of the Customs Code. On the basis of the application mutatis mutandis of those customs rules in accordance with Paragraph 21(2) of the UStG, the tax debt had been incurred and the applicant had become a debtor in respect of import VAT. By his action, the applicant is contesting that tax notice.

Questions

Is Directive 2006/112/EC and, in particular, Articles 30 and 60 thereof, infringed where Article 215(4) of Regulation (EEC) No 2913/92 is declared under a national provision to be applicable mutatis mutandis to import VAT?

AG Opinion

None

Decision

The first paragraph of Article 30, Article 60 and the second subparagraph of Article 71(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as precluding national legislation under which Article 215(4) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, applies mutatis mutandis to import value added tax (VAT) as regards the determination of the place where that import VAT is incurred.

Summary

The referring court wants to know if national legislation applying Article 215(4) of the Customs Code to import VAT for determining its place of origination is precluded by Directive 2006/112.
Importation of goods is subject to VAT under Article 2(1)(d) of the Directive, with importation taking place in the Member State where the goods are located upon entry into the EU.
The event and chargeability of VAT occur at the time of importation, but if items are subject to customs duties, the VAT event and claim arise when the customs duties claim arises.
This link between customs and VAT legislation does not determine the place of importation for VAT purposes.
The Court has confirmed this interpretation, recognizing parallelism between import VAT and customs duties, and that a VAT liability may exist in addition to customs debt.

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