On September 8, 2022, the ECJ issued its decision in the case C-368/21 (Hauptzollamt Hamburg)
Context: Import duties; determination of VAT on imports; import vehicle to Union; place where the vehicle enters the economic circuit of the Union
Article in the EU VAT Directive
Article 30
“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
The place of importation of goods shall be the Member State within whose territory the goods are located when they enter the Community.
Facts
The applicant has Georgian nationality and has lived in Germany for a number of years. He bought a vehicle in Georgia in January 2019 and drove it via Bulgaria to Germany without presenting this vehicle at a customs office of importation into the Union. He used the vehicle in Germany for both private and business trips. During one of these journeys he was checked by the Hauptzollamt Hamburg (defendant) and the defendant subsequently sent him an assessment requiring him to pay import duties and an amount of VAT on import. The defendant has substantiated the assessment by stating that the applicant, contrary to his obligation under art. 139 of Regulation 952/2013, did not present the vehicle at the first customs office in the territory of the European Union. Now that the vehicle was brought into the customs territory of the Union in contravention of the rules, there is, on the basis of Art. 79(1)(a) of Regulation 952/2013, a customs debt is incurred on importation. The applicant was therefore a debtor within the meaning of Art. 79(3)(a) of Regulation 952/2013. The import VAT was created by applying the aforementioned customs rules mutatis mutandis under the German Value Added Tax Act.
Consideration:
The referring court has doubts as to whether Germany is competent to determine import VAT. This would be the case if Art. 30 and 60 of Directive 2006/112 show that the place of importation is in Germany, despite the fact that the applicant drove the vehicle through several Member States before arriving in Germany. In this context, he wishes to know whether he has correctly understood from the case-law of the Court that the use of a vehicle as a means of transport for the purpose of transit through a Member State does not result in the vehicle in that Member State (Bulgaria) being economically circuit of the Union. According to the case law of the Court, a vehicle would only enter the economic circuit of the European Union in the Member State of residence of the driver (Germany). The referring court itself considers that the vehicle has already entered the economic circuit of the Union in Bulgaria, since the vehicle has already been used there. If the place of importation within the meaning of Articles 30 and 60 of Directive 2006/112 is not located in Germany, it should be considered whether it is contrary to Directive 2006/112/EC to have Art. 87(4) of Regulation 952/2013 to apply mutatis mutandis to import VAT. To this end, the referring court asks whether Directive 2006/112 restricts the application of Art. 87(4) of Regulation 952/2013 orders or prohibits. The referring court takes the view that the reference to the customs legislation of Art. 71(1) second subparagraph of Directive 2006/112 does not require that Art. 87(4) of Regulation 952/2013 applies mutatis mutandis. However, on the basis of the Court’s case-law, he has the impression that Directive 2006/112 does not exhaustively regulate the VAT consequences of non-compliance with customs legislation. The referring court takes the view that the reference to the customs legislation of Art. 71(1) second subparagraph of Directive 2006/112 does not require that Art. 87(4) of Regulation 952/2013 applies mutatis mutandis. However, on the basis of the Court’s case-law, he has the impression that Directive 2006/112 does not exhaustively regulate the VAT consequences of non-compliance with customs legislation. The referring court takes the view that the reference to the customs legislation of Art. 71(1) second subparagraph of Directive 2006/112 does not require that Art. 87(4) of Regulation 952/2013 applies mutatis mutandis. However, on the basis of the Court’s case-law, he has the impression that Directive 2006/112 does not exhaustively regulate the VAT consequences of non-compliance with customs legislation.
Questions
(1) Are Articles 30 and 60 of Directive 2006/112/EC to be interpreted as meaning that the place of importation for VAT purposes of a means of transport registered in a third country and brought into the European Union in breach of customs legislation is located in the Member State where the obligations arising from customs legislation have been breached and where the means of transport has been used for the first time as a means of transport in the Union, or in the Member State where the person who has breached those obligations is established and uses the vehicle?
2) In case the place of importation is located in a Member State other than Germany: is a provision of a Member State which declares Article 87(4) of Regulation (EU) No 952/2013 applicable mutatis mutandis to import VAT, in conflict with Directive 2006/112/EC, in particular Articles 30 and 60 thereof?
AG Opinion
None
Decision
Articles 30 and 60 of Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax in the version amended by Council Directive (EU) 2018/2057 of December 20, 2018
are to be interpreted as follows
the VAT place of import of a vehicle registered in a third country, which is brought into the European Union in violation of customs regulations, is in the Member State in which the person who committed the breach of customs obligations is resident and actually uses the vehicle.
Personal comments/VATupdate
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