Opinion of Advocate General Mengozzi in the case Santogal M-Comércio e Reparação de Automóveis.
Mengozzi proposes that the questions referred for a preliminary ruling by the Tribunal Arbitral Tributário be answered as follows:
(1) Article 138(2)(a) of Council Directive 2006/112/EC must be interpreted as meaning that it precludes a Member State from making the exemption of an intra-Community supply of a new means of transport subject to the condition that the purchaser of that means of transport resides in the Member State of destination of the transaction.
(2) Regardless of the circumstances specific to a particular case, Article 138(2)(a) of Directive 2006/112 must be interpreted as meaning that it precludes a Member State from refusing to grant the exemption from value added tax to the vendor of a new means of transport, which has been transported to another Member State by its owner, simply because that vehicle was registered temporarily in that latter Member State.
(3) Article 138(2)(a) of Directive 2006/112 and the principles of legal certainty, proportionality and fiscal neutrality must be interpreted as meaning that they preclude a Member State from refusing to grant the exemption from value added tax to the vendor of a new means of transport where that vendor has not participated in tax fraud, has acted in good faith and has taken all the reasonable measures within his power to ensure that the transaction which he concluded satisfies all the substantive conditions for an intra-Community supply, within the meaning of that article, in particular the condition relating to the final, permanent consumption of the new means of transport in the Member State of destination.
It is for the referring court to determine whether the vendor in the main proceedings complied with the requirements of good faith and reasonable diligence, in the light, inter alia, of the steps which it took with regard to the purchaser and of the supporting documents produced by him and making it possible to determine that he ensured that the new means of transport would be put to final, permanent use in the Member State of destination following the expiry of the temporary registration period in that Member State. If that is the case, the vendor cannot be refused the right of exemption from value added tax. Otherwise, unless the Member State of supply is able to demand payment of the value added tax from the purchaser a posteriori, that Member State is justified in requiring the vendor of the new means of transport to pay the value added tax a posteriori with a view to preventing the transaction from avoiding all taxation.