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A9. Proportionality
Legitimate aim​
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- Not permissible to penalise a breach of national law by refusing exemption
"[22] Consequently, if the aim of the refusal by a Member State to allow for an export transaction a VAT exemption laid down by the Sixth Directive is to penalize the breach of a national provision requiring authorization for such an export, the refusal serves a purpose alien to that of the Sixth Directive." (Lange C-111/92)
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Fraud and proportionality​
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- Sharing of risk of fraud between supplier and tax authorities must be consistent with proportionality
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"[22] This is why the objective of preventing tax evasion referred to in Article 15 of the Sixth Directive sometimes justifies stringent requirements as regards suppliers’ obligations. However, any sharing of the risk between the supplier and the tax authorities, following fraud committed by a third party, must be compatible with the principle of proportionality (Teleos and Others, paragraph 58)." (Netto Supermarket C-271/06)
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- Clearly disproportionate to hold supplier liable for fraudulent acts over which it had no influence
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"[23] That will not be the case if a tax regime imposes the entire responsibility for the payment of VAT on suppliers, regardless of whether or not they were involved in the fraud committed by the purchaser (see, to that effect, Teleos and Others, paragraph 58). As the Advocate General has pointed out in point 45 of his Opinion, it would clearly be disproportionate to hold a taxable person liable for the shortfall in tax caused by fraudulent acts of third parties over which he has no influence whatsoever." (Netto Supermarket C-271/06)
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- Not disproportionate to require supplier to take every step reasonably required to be satisfied not participating in fraud
"[24] On the other hand, as the Court has already held, it is not contrary to Community law to require the supplier to take every step which could reasonably be required of him to satisfy himself that the transaction which he is effecting does not result in his participation in tax evasion (see Teleos and Others, paragraph 65, and the case-law cited there)." (Netto Supermarket C-271/06)
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