The Advocate General of the European Court of Justice (ECJ) ruled on 6 April 2016 in the case Josef Plöckl v Finanzamt Schrobenhausen. The case had been referred to the ECJ for a preliminary ruling on the following question:

Do article 22(8), the first subparagraph of article 28c(A)(a) and article 28c(A)(d) of the EU Sixth VAT Directive permit Member States to refuse to grant a tax exemption on an intra-Community supply (in this case an intra-Community transfer) where although the supplier has not taken all the measures that can reasonably be expected from the point of view of the formal requirements applicable to the recording of the VAT identification number there is no specific evidence of tax evasion; the goods have been moved to another Member State; and the other conditions for VAT exemption have also been met?

Relevant provisions of the Directive

The case dealt with the provisions of the Sixth VAT Directive (77/388/EEC) which has now been replaced by the VAT Directive 2006/112/EC.

Article 22 of the Sixth VAT Directive set out the formalities with which a person liable for payment of VAT is obliged to comply. Article 22 (8) provided that member states may impose other obligations deemed necessary for the correct levying and collection of VAT and the prevention of fraud.

Article 28 c (A) was concerned with the right of exemption on intra-Community supplies, granting exemption subject to conditions which member states could lay down to ensure the correct application of the exemptions and to prevent any evasion, avoidance or abuse.

Advocate General’s opinion

The Advocate General opined that Article 22 (8), the first subparagraph of article 28c (A) (a) and Article 28c (A) (d) of the Sixth VAT Directive are to be interpreted as preventing the tax authority from refusing to grant a tax exemption for the intra-Community transfer only because the taxable person has not provided a VAT identification number issued by the member state of destination of the goods, where there is no specific evidence of tax evasion, the goods have been moved to another member state and the other conditions for VAT exemption are met.

The opinion of the Advocate General will be taken into account by the ECJ when it arrives at a preliminary ruling on the case but it is not obliged to follow the Advocate General’s opinion.