ECJ VAT C-405/24 (L.) – Questions – Compatibility of VAT exemption provisions with importation regulations

The ECJ issued the preliminary ruling in the case C-405/24 (L.).

Context:

Articles in the EU VAT Directive

Article 143(b) of Council Directive 2006/112/EC:

Member States shall exempt the following transactions: the final importation of goods governed by Council Directives 69/169/EEC, 83/181/EEC and 2006/79/EC.

Article 1 of Council Directive 2006/79 of 5 October 2006 on the exemption from taxes of imports of small consignments of goods of a non-commercial character from third countries […] ‘Directive 2006/79’):
1. Goods in small consignments of a non-commercial character sent from a third country by private persons to other private persons in a Member State shall be exempt on importation from turnover tax and excise duty.
2. For the purposes of paragraph 1, ‘small consignments of a non-commercial character’ shall mean consignments which:
(a) are of an occasional nature;
(b) contain only goods intended for the personal or family use of the consignees, the nature and quantity of which do not indicate that they are being imported for any commercial purpose;
(c) contain goods with a total value not exceeding EUR 45;
(d) are sent by the sender to the consignee without payment of any kind.

Recital (3) of Directive 2006/79:

To that end the limits within which such exemption is to be applied should, for practical reasons, be as far as possible the same as those laid down for the Community arrangements for exemption from customs duties in Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty.

Article 25 of Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty […] (‘Regulation
No 1186/2009’):
1. Subject to Articles 26 and 27, goods contained in consignments sent from a third country by a private individual to another private individual living in the customs territory of the Community shall be admitted free of import duties, provided that such importations are not of a commercial nature.
The relief provided for under this paragraph shall not apply to goods in consignments sent from the island of Heligoland.
2. For the purposes of paragraph 1, imported consignments are ‘not of a commercial nature’ if they:
(a) are of an occasional nature;
(b) contain goods exclusively for the personal use of the consignee or his family, which do not, by their nature or quantity, reflect any commercial intent;
(c) are sent to the consignee by the consignor free of payment of any kind.

Facts & Background

L. s.c. [L. civil partnership] […] (‘the partnership’ or ‘the appellant’) applied to the Dyrektor Krajowej Informacji Skarbowej (Director of the National Tax Information Service; ‘the Director of the NTIS’) for a written advance tax ruling regarding VAT. Presenting the facts of the case and the future event in its application, the appellant stated that in the course of its business, it engages, inter alia, in freight forwarding and customs clearance of consignments from individuals residing in the territory of third countries (mainly the United States and Canada) intended for individuals residing in Member States of the European Union (mainly Poland, Lithuania and Romania, but also the Czech Republic, Slovakia, Bulgaria and others) or in other countries outside the European Union (‘the EU’).
Its application concerned the VAT consequences of releasing for free circulation in the territory of Poland consignments that cumulatively meet the following conditions:
- the consignments are sent by individual consignors from third countries outside the European Union (for instance, the United States or Canada);
- the consignments are intended for individual consignees residing in Poland or other European Union countries (for instance, Lithuania, Romania, the Czech Republic, Slovakia, Bulgaria and others);
- the quantity and type of goods contained in the consignment do not indicate their commercial nature;
- the consignee is not required to pay fees to the consignor in connection with the receipt of the consignment;
- the consignments are of an occasional nature;
- the total value of the goods in the consignments does not exceed the equivalent of EUR 45, and the goods in the consignments do not exceed the quantities and limits referred to in Article 52(2) of the Law on VAT.
Having regard to the above, the partnership asked the following question: Given the presented facts of the case (concerning a future event), will the importation into Poland of goods placed in a consignment sent from the territory of a third country outside the European Union by an individual and intended for an individual in a European Union Member State other than Poland be exempt from VAT under Article 52 of the Law on VAT (assuming that the other conditions listed in Article 52(1)(1), (2) and (3) and in Article 52(2) and (3) of the Law on VAT are met) read in conjunction with Article 143(b) of Council Directive 2006/112 and Council Directive 2006/79?
According to the partnership, the importation into Poland of goods placed in a consignment sent from the territory of a third country outside the European Union by an individual and intended for an individual in a European Union Member State other than Poland will be exempt from VAT under Article 52 of the Law on VAT (assuming that the other conditions listed in Article 52(1)(1), (2) and (3) and in Article 52(2) and (3) of the Law on VAT are met) read in conjunction with Article 143(b) of Council Directive 2006/112 and Council Directive 2006/79.
In the advance tax ruling of 22 March 2019, the Director of the NTIS stated that the partnership’s position was incorrect. The Director of the NTIS found that in the case at issue, the importation into Poland of goods placed in a consignment sent from the territory of a third country by an individual and intended for an individual in a European Union Member State other than Poland would not be exempt from VAT.

Questions

Must the provisions of Article 143(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax […] and Article 1 of Directive 2006/79 of 5 October 2006 on the exemption from taxes of imports of small consignments of goods of a non-commercial character from third countries […] in the context of recital (3) of Directive 2006/79 and Article 25 of Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (OJ 2009 L 324 of 10 December 2009, ‘Regulation 1186/2009’) be interpreted as being contrary to a regulation such as Article 52(1) of the ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług […] (Law of 11 March 2004 on Value Added Tax; ‘the Law on VAT’), according to which the importation of goods placed in a consignment sent from the territory of a third country by an individual and intended for an individual residing in the territory of a Member State of the European Union other than the territory of the country where the importation takes place is not exempt from VAT?

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