VDP Dental Laboratory NV v Staatssecretaris van Financiën (C-144/13) and Staatssecretaris van Financiën v X BV (C-154/13) and Nobel Biocare Nederland BV (C-160/13).

• Jurisdiction: European Union
• Celex Number: 62013CC0144
• ECLI: ECLI:EU:C:2014:2163
• Docket Number: C-144/13,,C-160/13,C-154/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 04 September 2014

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 4 September 2014 ( 1 )

Joined Cases C‑144/13, C‑154/13 and C‑160/13

VDP Dental Laboratory NV

v

Staatssecretaris van Financiën,

Staatssecretaris van Financiën

v

X BV

and

Staatssecretaris van Financiën

v

Nobel Biocare Nederland BV

(Requests for a preliminary ruling

from the Hoge Raad der Nederlanden (Kingdom of the Netherlands))

‛Tax law — Value added tax — Tax exemption in the case of intra-Community acquisitions of goods — Article 140(a) and (b) of Directive 2006/112/EC — Tax exemption in the case of the importation of goods — Article 143(a) of Directive 2006/112/EC — Applicability of tax exemptions in the case of supplies of dental prostheses exempt under Article 132(1)(e) of Directive 2006/112/EC — Deduction of input tax — Article 17(2)(a), in the version of Article 28f(1), of Sixth Directive 77/388/EEC — Direct effect — Right to deduct input tax in the case of transactions benefiting from a national exemption contrary to EU law’

I – Introduction

1. The Court is called on yet again ( 2 ) to consider the question of value added tax in relation to dental prostheses. This is a special case inasmuch as, while the supply of dental prostheses is exempt from VAT in certain situations, there are still some Member States which tax all supplies of dental prostheses on the basis of a transitional arrangement.

2. The effects of these peculiarities on the deduction of input tax and the conditions of competition between suppliers of dental prostheses in different Member States have already been examined by the Court in the judgment in Eurodental. ( 3 ) The present requests for a preliminary ruling are also concerned with the aforementioned conditions of competition, although this time against the background of the tax exemptions for intra-Community acquisitions and imports from third countries. The issue of whether these are applicable to dental prostheses has yet to be settled.

3. In addition, following on from its first judgment in VDP Dental Laboratory, ( 4 ) the Court will once again have to address the consequences for the right to deduct input tax of an exemption granted in breach of European Union (EU) law. The recent judgment in MDDP ( 5 ) should have left no questions unanswered in this regard, however.

II – Legal framework

A – EU law

4. The main proceedings concern the collection of value added tax for the years 2006 and 2008. Consequently, regard must be had in the present cases both to 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, ( 6 ) in the version applicable for 2006 (‘the Sixth Directive’), and to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, ( 7 ) which came into force on 1 January 2007, in the version applicable for 2008 (‘the VAT Directive’). In what follows, therefore, the rules are reproduced either in the version of the VAT Directive or in the version of the Sixth Directive, depending on the tax period in relation to which their interpretation is called for.

1. Taxable events

5. In accordance with Article 2(1) of the VAT Directive, the following transactions are subject to VAT: ‘(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such; (b) the intra-Community acquisition of goods for consideration within the territory of a Member State by: (i) a taxable person acting as such, … where the vendor is a taxable person acting as such …; … (c) … (d) the importation of goods’.

6. Article 14(1) of the VAT Directive defines the ‘supply of goods’ as ‘the transfer of the right to dispose of tangible property as owner’.

7. The ‘intra-Community acquisition of goods’ is defined in the first paragraph of Article 20 of the VAT Directive as ‘the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods, by or on behalf of the vendor or the person acquiring the goods, in a Member State other than that in which dispatch or transport of the goods began’.

8. In accordance with the first paragraph of Article 30 of the VAT Directive, ‘importation of goods’ means ‘the entry into the Community of goods which are not in free circulation within the meaning of Article 24 of the Treaty’.

2. Tax exemption for dental prostheses

9. Under Article 132(1)(e) of the VAT Directive, Member States are to exempt the following transactions from VAT: ‘the supply of services by dental technicians in their professional capacity and the supply of dental prostheses by dentists and dental technicians’.

10. However, Chapter 1 of Title XIII of the VAT Directive, under the heading ‘Derogations applying until the adoption of definitive arrangements’, contains a derogation from that tax exemption in its Section 1 (‘Derogations for States which were members of the Community on January 1978’). In that section, Article 370 provides: ‘Member States which, at 1 January 1978, taxed the transactions listed in Annex X, Part A, may continue to tax those transactions’.

11. Point 1 of Annex X, Part A, refers to ‘the supply of services by dental technicians in their professional capacity and the supply of dental prostheses by dentists and dental technicians’.

3. Exemptions for intra-Community acquisitions and on importation

12. Furthermore, in accordance with Article 140 of the VAT Directive, Member States are to exempt: ‘(a) the intra-Community acquisition of goods the supply of which by taxable persons would in all circumstances be exempt within their respective territory; (b) the intra-Community acquisition of goods the importation of which would in all circumstances be exempt under points (a), (b) and (c) and (e) to (l) of Article 143; …’

13. In the case of imports from third countries, in accordance with Article 143(a) of the VAT Directive, Member States are to exempt: ‘the final importation of goods of which the supply by a taxable person would in all circumstances be exempt within their respective territory’.

4. Exemptions for intra-Community supplies of goods and on exportation

14. In the case of a cross-border supply within the EU that amounts to an intra-Community acquisition, Article 138(1) of the VAT Directive provides for the following exemption: ‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began’.

15. Article 146 of the VAT Directive makes similar provision in the case of exports: ‘1. 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; (b) the supply of goods dispatched or transported to a destination outside the Community by or on behalf of a customer not established within their respective territory … …’

5. Right to deduct input tax

16. For the purposes of the 2006 tax period, the right of a taxable person to deduct input tax on goods or services acquired by him (‘input transactions’) is governed by Article 17(1) and (2), in the version of Article 28f(1), of the Sixth Directive as follows: ‘1. The right to deduct shall arise at the time when the deductible tax becomes chargeable. 2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay: (a) value added tax due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person: (b) value added tax due or paid in respect of imported goods within the territory of the country; (c) … (d) value added tax due pursuant to Article 28a(1)(a). 3. Member States shall also grant every taxable person the right to the deduction or refund of the value added tax referred to in paragraph 2 in so far as the goods and services are used for the purposes of: … (b) transactions which are exempt pursuant to Article … 15 … or 28c(A) and (C); …’

17. Article 28a(1)(a) of the Sixth Directive sets out the chargeable event of intra-Community acquisition that corresponds to that provided for in Article 2(1)(b)(i) of the VAT Directive. ( 8 ) Article 15 of the Sixth Directive governed the exemptions on exportation that are now provided for in Article 146 of the VAT Directive. ( 9 ) Article 28c(A) of the Sixth Directive contained the exemption for intra-Community supplies that is now to be found in Article 138 of the VAT Directive. ( 10 )

18. The provisions concerning the deduction of input tax contained in Article 17(1) to (3), in the version of Article 28f(1), of the Sixth Directive have their counterpart in Articles 167 and 168 of the VAT Directive.

B – National law

19. Netherlands law contained provisions corresponding in principle...