Request for a preliminary ruling from the Bundesfinanzgericht (Austria) lodged on 5 December 2016 — Kreuzmayr GmbH

(Case C-628/16)

(2017/C 095/10)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Applicant: Kreuzmayr GmbH

Questions referred

Question 1:

In circumstances such as those at issue in the main proceedings, in which a taxable person X1 has at its disposal goods stored in Member State A and has sold those goods to a taxable person X2, and X2 has expressed to X1 its intention to transport the goods to Member State B, and X2 has presented to X1 its VAT identification number issued by Member State B,

and X2 has sold those goods on to a taxable person X3 and X2 has agreed with X3 that X3 will arrange or carry out the transport of the goods from Member State A to Member State B and X3 has arranged or carried out the transport of the goods from Member State A to Member State B and X3 was already entitled to dispose of the goods as owner in Member State A,

and X2 has not, however, informed X1 that he has already sold on the goods before they leave Member State A,

and X1 also could not know that X2 would not be arranging or carrying out the transport of the goods from Member State A to Member State B,

is EU law to be interpreted as meaning that the place of supply from X1 to X2 is determined in accordance with the first paragraph of Article 32 of Directive 2006/112/EC (1) and that the supply from X1 to X2 is thus the intra-Community (the so-called ‘active’) supply (bewegte Lieferung)?

Question 2:

If Question 1 must be answered in the negative, is EU law then to be interpreted as meaning that X3 may nevertheless deduct as input VAT an amount of VAT of Member State B invoiced to it by X2, provided that X3 uses the goods purchased for purposes of its transactions taxed in Member State B and no wrongful exercise of the right of deduction of input VAT can be imputed to X3?

Question 3:

If Question 1 must be answered in the affirmative and X1 subsequently learns that X3 has arranged the transport and was already entitled to dispose of the goods as owner in Member State A, is EU law then to be interpreted as meaning that the supply from X1 to X2 retrospectively loses its status as the intra-Community supply (that it is thus to be viewed retrospectively as a so-called ‘passive’ supply (ruhende Lieferung))?

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ 2006 L 347, p. 1.