UAB "Fast Bunkering Klaipėda“" v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos.

• Jurisdiction: European Union
• Celex Number: 62013CJ0526
• ECLI: ECLI:EU:C:2015:536
• Docket Number: C-526/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 03 September 2015

JUDGMENT OF THE COURT (Fourth Chamber)

3 September 2015 ( *1 )

‛Reference for a preliminary ruling — Taxation — Value Added Tax (VAT) — Directive 2006/112/EC — Article 148(a) — Supply of goods — Definition — Exemption — Supply of goods for the fuelling and provisioning of vessels used for navigation on the high seas — Supplies to intermediaries acting in their own name’

In Case C‑526/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Lithuania), made by decision of 30 September 2013, received at the Court on 7 October 2013, in the proceedings,

‘Fast Bunkering Klaipėda’ UAB

v

Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Jürimäe, J. Malenovský (Rapporteur), M. Safjan and A. Prechal, Judges,

Advocate General: E. Sharpston,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 4 December 2014,

after considering the observations submitted on behalf of:

— ‘Fast Bunkering Klaipėda’ UAB, by I. Misiūnas, atstovas,

— the Lithuanian Government, by D. Kriaučiūnas, R. Krasuckaitė and D. Stepanienė, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, and C. Colelli and A. Collabolletta, avvocati dello Stato,

— the European Commission, by C. Soulay and A. Steiblytė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 5 March 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 148(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request has been made in proceedings between ‘Fast Bunkering Klaipėda’ UAB (‘FBK’) and Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (State Tax Inspectorate under the Finance Ministry of the Republic of Lithuania) concerning the status of supplies of fuel to intermediaries acting in their own name with regard to value added tax (‘VAT’).

Legal context

International law

3 The Convention on International Civil Aviation, signed in Chicago (United States) on 7 December 1944 (‘the Chicago Convention’), has been ratified by all the Member States of the European Union, but the European Union is not itself a party. That convention lays down rules, inter alia, on the registration of aircraft and permits to fly.

EU law

4 From 1 January 2007 Directive 2006/112 repealed and replaced the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

5 Article 14 of Directive 2006/112 provides: ‘1. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner. 2. In addition to the transaction referred to in paragraph 1, each of the following shall be regarded as a supply of goods: … (c) the transfer of goods pursuant to a contract under which commission is payable on purchase or sale. …’

6 Article 131 of that directive states: ‘The exemptions provided for in Chapters 2 to 9 shall apply … in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

7 Article 146(1) of Directive 2006/112 provides: ‘Member States shall exempt the following transactions: (a) the supply of goods dispatched or transported to a destination outside the Community by or on behalf of the vendor; …’

8 Article 148(a) of Directive 2006/112, sets out in identical terms the provisions of Article 15(4) of the Sixth Directive. Article 148 provides: ‘Member States shall exempt the following transactions: (a) the supply of goods for the fuelling and provisioning of vessels used for navigation on the high seas and carrying passengers for reward or used for the purpose of commercial, industrial or fishing activities … … (e) the supply of goods for the fuelling and provisioning of aircraft used by airlines operating for reward chiefly on international routes; (f) the supply, modification, repair, maintenance, chartering and hiring of the aircraft referred to in point (e), and the supply, hiring, repair and maintenance of equipment incorporated or used therein; …’

Lithuanian law

9 Article 44 of the Law of the Republic of Lithuania No IX-751 of 5 March 2002 on value added tax (Žin., 2002, No 35-1271), as amended by Law No X-261 of 21 June 2005 (Žin., 2005, No 81-2944, ‘the Law on VAT’) provides: ‘1. A supply of goods shall be taxed at the zero rate of VAT where the goods are supplied for the fuelling and provisioning of vessels referred to in Article 43(1) of this Law [namely seagoing vessels intended for the international carriage of passengers and for goods and/or other services for reward] ... … 3. In this Law … fuel (motor fuel) and lubricants shall be regarded as goods for fuelling and provisioning. ...’

Facts in the main proceedings and question referred for a preliminary ruling

10 FBK is registered for VAT in Lithuania.

11 Between 1 October 2008 and 31 December 2011, FBK supplied fuel, within Lithuanian territorial waters to vessels used for navigation on the high seas. The fuel concerned came from non-member States and was stored in Lithuania under customs warehousing arrangements. Under those arrangements, the collection of VAT for the import of that fuel was suspended so long as it was not released into free circulation in the European Union.

12 When FBK received an order, the corresponding fuel was taken from the customs depot and FBK carried out the necessary formalities. The fuel was then sold ‘free on board’, that is to say without transport or other related taxes and costs and without insurance, and FBK itself loaded the fuel into the vessels’ fuel tanks.

13 However, the orders were sent to FBK not by the ships’ operators but by intermediaries established in various Member States, to which FBK invoiced the sales. Those intermediaries acted in their own name, both with regard to FBK and to the operators of the vessels, buying from the former and selling to the latter. At the hearing, FBK’s representative explained that those intermediaries never took physical delivery of any fuel, their role being essentially to centralise orders and to ensure payment of the fuel delivered. It was only once it was loaded into the fuel tanks of the vessels that FBK was in a position to determine the actual amount transferred and thus to draw up the corresponding invoice.

14 Starting from the principle that the sale of the fuel at issue was exempt from VAT, in accordance with the Lithuanian law transposing Article 148(a) of Directive 2006/112, FBK applied a zero rate of VAT to those deliveries of fuel.

15 On 15 February 2013, following a tax inspection for the period mentioned in paragraph 11 of this judgment, the Klaipėdos apskrities valstybinė mokesčių inspekcija (‘the Klaipėda tax inspectorate’) drew up a report, in which it stated that it was of the view that since the fuel at issue was not sold directly by FBK to the operators of the vessels, but to intermediaries acting in their own name, the latter must be regarded as having sold the fuel to those operators. Consequently, FBK could not apply the exemption laid down in Article 44(1) of the Law on VAT, because that exemption applies only where there is a supply of goods to the operators of seagoing vessels intended for international carriage of passengers and/or goods.

16 By decision of 26 March 2013, based on the report of 15 February 2013, the Klaipėdos apskrities valstybinė mokesčių inspekcija made an upward adjustment of FBK’s declaration with respect to the application of a zero rate of VAT on the supplies of fuel at issue of LTL 37847771, that is to say, approximately EUR 11000000.

17 On 15 April 2013, FBK lodged a complaint against the decision of the Klaipėdos apskrities valstybinė mokesčių inspekcija before the Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos.

18 By decision of 27 June 2013, the Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos dismissed that complaint on the ground that, according to the case-law of the Court of Justice in Velker International Oil Company (C‑185/89, EU:C:1990:262) and Elmeka (C‑181/04 to C‑183/04, EU:C:2006:563), the exemption provided for in Article 148(a) of Directive 2006/112, transposed by Article 44(1) of the Law on VAT, for supply of goods for the fuelling and provisioning of vessels used for navigation on the high seas may apply only at the last stage in the commercial chain of the goods concerned, when they are supplied to the operator of the vessels which will use them.

19 On 30 July 2013, FBK brought an action against that decision before the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Tax Disputes Commission under the Government of the Republic of Lithuania).

20 That court is unsure as to whether it is possible to apply the reasoning followed by the Court in the...