On February 14, 2019 the Court of Justice of the European Union (CJEU) judged in Case C-562/17 Nestrade SA versus Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (ECLI:EU:C:2019:115).

This reference for a preliminary ruling concerns the interpretation of provisions of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ 1986, L 326, p. 40) (‘the Thirteenth Directive’).

The request has been made in proceedings between Nestrade SA, a commercial company established in Switzerland, and the Agencia Estatal de la Administración Tributaria (AEAT) (State Tax Administration Agency, Spain) and the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) concerning the partial refusal to refund value added tax (VAT) owing to a final decision prior to that refusal.

 

The dispute in the main proceedings and the questions referred for a preliminary ruling

·   Nestrade, which has its registered office and tax residence in Switzerland, carries out transactions subject to value added tax in Spain.

 

·   On 21 September 2010, Nestrade claimed from the AEAT, under the procedure for the refund of input VAT qualifying as Spanish VAT paid by a trader not resident in the European Union, the input VAT charged in respect of the supply of goods by its supplier Hero España, S.A. (‘Hero’) during the third and fourth quarters of 2009. Nestrade also applied for the refund of all the other amounts of VAT paid in the years 2008 to 2010 on the supply of goods by Hero.

 

·   For all of those financial periods, the AEAT asked Nestrade to provide invoices corresponding to the supplies of goods by Hero (‘the correct invoices’) because the invoices originally produced showed Nestrade’s Netherlands VAT identification number, whereas it was the Swiss VAT identification number which should have been indicated on those invoices.

 

·   Thus, on 23 November 2010, the AEAT asked Nestrade to produce, within 10 working days of notification of the demand, which was given on 13 December 2010, the correct invoices issued by Hero in respect of the third and fourth quarters of 2009. Nestrade did not respond to that request within the time limit prescribed.

 

·   On 10 January 2011, Hero issued the corrected invoices for the third and fourth quarters of 2009.

 

·   On 5 April 2011, AEAT gave a decision refusing to refund the sum of EUR 114 662.59 claimed in respect of the third and fourth quarters of 2009 on the ground that it was unable to determine whether the claim was well founded.

 

·   That decision, which was not challenged by Nestrade, became final on 14 May 2011.

 

·   On 5 August 2011, Nestrade again requested AEAT to refund the amounts of input VAT paid during the years 2008 to 2010 and, in addition, also requested the refund of amounts of input VAT paid in the period from January to March 2011. On that occasion, Nestrade produced the corrected invoices and cancelled the invoices originally issued by Hero for each of those years, including in relation to the third and fourth quarters of 2009.

 

·   In its decision of 12 December 2011 the AEAT decided, in the first place, to grant the refund of the amounts of input VAT paid in 2008 and 2010, and in respect of the first and second quarters of 2009, making a total of EUR 542 094.25. The AEAT considered that Nestrade had responded to its requests and had produced the corrected invoices sought. It granted the refund once it had verified that all the requirements in that regard were met. In the second place, the AEAT decided to refuse to refund the amounts of VAT corresponding to two invoices issued by Hero in respect of the third and fourth quarters of 2009. That refusal was based on the fact that that refund had been refused by the decision of 5 April 2011, which had become final on 14 May 2011.

 

·   On 8 March 2012 AEAT confirmed the decision of 12 December 2011.

 

·   Nestrade lodged an administrative action against the decisions of the AEAT of 12 December 2011 and 8 March 2012. That action was dismissed by the decision of the Tribunal Económico-Administrativo Central (Central Tax Tribunal) of 22 January 2015. The main reason for the dismissal was the administrative principle of res judicata.

 

·   Nestrade brought judicial proceedings against the decisions of the AEAT of 12 December 2011 and 8 March 2012, and against the decision of the Tribunal Económico-Administrativo Central (Central Tax Tribunal) of 22 January 2015, before the referring court.

 

·   The referring court considers that there is a certain conflict between, on the one hand, the need to respect the principle of legal certainty inherent in a final administrative act, such as the decision of 5 April 2011 and, on the other hand, the need uniformly to apply EU law and, in particular, the provisions of Directive 2006/112 concerning the right to deduct VAT. 

 

·   In that context, the referring court recalls that the Court, in the judgment of 8 May 2013, Petroma Transports and Others (C‑271/12, EU:C:2013:297), held that a refund of input VAT may be refused if the corrected invoices are produced to the tax authority after it has issued its decision refusing the right to a refund of VAT. It wonders, however, whether the case-law should not be applied in circumstances, such as those in the main proceedings, which are characterised by an absence of negligence or failure to cooperate with the AEAT on the part of Nestrade and by an infringement of the rights of the defence of the latter.

 

·   In those circumstances, the Audiencia Nacional (National High Court, Spain) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Can the rule [established by the judgment of 8 May 2013, Petroma Transports and Others (Case C‑271/297, EU:C:2013:297)] be qualified so as to allow a VAT refund sought by an undertaking not established in the European Union, even though the national tax authority has already issued a decision refusing the refund on the grounds that the undertaking had failed to respond to a request for information concerning its tax identification number, in view of the fact that the authority was in possession of that information at the relevant time since it had been provided by the undertaking in response to other requests?

If that question is answered in the affirmative:

(2)  Does a retroactive application of the rule [established by the judgment of 15 September 2016, Senatex (Case C‑518/14, EU:C:2016:691)] mean that an administrative act refusing the refund of the VAT in question must be revoked, in view of the fact that the act merely upheld a previous final administrative decision refusing the VAT refund, which was adopted by the AEAT using a procedure which was not the procedure laid down by law for that situation and which, furthermore, curtailed the rights of the applicant, depriving it of a legal remedy?’

 

Judgment

The CJEU judged as follows:

The provisions of the Thirteenth Council Directive 86/560/EEC of 17 November 1986, on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory, must be interpreted as not precluding a Member State from imposing a time limit on the possibility of rectifying incorrect invoices, for example by the rectification of the VAT identification number originally shown on the invoice, for the purposes of the exercise of the right to a VAT refund, provided that the principles of equivalence and effectiveness are respected, which it is for the referring court to verify.

 

From the consideration of the Court

·   As a preliminary matter, it should be observed, first, that in its decision the referring court refers to provisions of Directive 2006/112 on the right to deduct VAT and to the Court’s case-law relating thereto.

 

·   However, the fact that a national court has, formally speaking, worded its request for a preliminary ruling by referring to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited).

 

·   As the Spanish government and the European Commission have observed, the case in the main proceedings concerns a claim for the refund of amounts of VAT paid by a company established in a third country, namely Switzerland. The arrangements for the refund of VAT to taxable persons not established on the territory of the European Union are governed by the Thirteenth Directive, as is clear from Article 2(1) thereof. The Court has clarified, in that regard, that the provisions of the Thirteenth Directive and, in particular, Article 2(1), must be considered as a lex specialis as compared with Articles 170 and 171 of Directive 2006/112 (judgment of 15 July 2010, Commission v UK, C‑582/08, EU:C:2010:429, paragraph 35).

 

·   Therefore, it is necessary to examine the questions referred in the light of the provisions of the Thirteenth Directive.

 

·   Secondly, it should be noted that the case in the main proceedings does not concern the temporal effect of corrections to an invoice, which is a question on which the Court has already ruled in relation to the right to deduct VAT in the judgment of 15 September 2016, Senatex, (C‑518/14, EU:C:2016:691). By contrast, it concerns the power of Member States to place a time limit on the possibility of rectifying incorrect invoices for the purposes of exercising the right to a VAT refund. The referring court explains that, in Spanish law, such a rectification can no longer produce an effect after the decision of the administration refusing a refund has become final.

 

·   In view of the foregoing, it should be considered that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether the provisions of the Thirteenth Directive must be interpreted as precluding a Member State from imposing a time limit on the possibility of rectifying incorrect invoices, for example by the rectification of the VAT identification number originally shown on the invoice, for the purposes of exercising the right to a refund of VAT.

 

·   The Court has held that the provisions of the Sixth Directive 77/388 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the right to deduct VAT may be refused to taxable persons who are recipients of services and are in possession of invoices which are incomplete, even if those invoices are supplemented by the provision of information seeking to prove the occurrence, nature and amount of the transactions invoiced after such a refusal decision was adopted (see, to that effect, judgment of 8 May 2013, Petroma Transports and Others, C‑271/12, EU:C:2013:297, paragraph 36). However, it should be noted that the Sixth Directive 77/388 also does not prohibit Member States from accepting the rectification of an incomplete invoice after the tax authority has adopted a decision refusing the right to a deduction or the right to a refund of VAT. 

 

·   Such a finding also applies as regards the Thirteenth Directive. It is stated in Article 3(1) thereof that Member States are to determine the arrangements for submitting applications for a refund of VAT, including the time limits for doing so, and that they are to lay down the requirements that are necessary to assess the merits of such an application.

 

·   Since it is not governed by the Thirteenth Directive, the enactment of measures laying down a limitation period the expiry of which has the effect of penalising a taxable person who has not been sufficiently diligent and has failed to rectify incorrect or incomplete invoices for the purposes of exercising the right to a refund of VAT must be governed by national law, provided that, first, that procedure applies in the same way to analogous rights in tax matters founded on domestic law and to those founded on EU law (principle of equivalence) and, second, that it does not in practice render impossible or excessively difficult the exercise of that right (principle of effectiveness) (see, by analogy, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraph 46, and 26 April 2018, Zabrus Siret, C‑81/17, C‑284/17, EU:C:2018:283, paragraph 38 and the case-law cited).

 

·   In that regard, it should be recalled that while it is for the national court to determine whether national measures are compatible with EU law, the Court may, however, provide it with any helpful guidance to resolve the dispute before it (judgment of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 36).

 

·   As regards, in the first place, the principle of equivalence, it should be recalled that it follows from this principle that persons asserting rights conferred by EU law must not be treated less favourably than those asserting rights of a purely domestic nature (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 39).

 

·   The referring court wonders whether the AEAT infringed the principle of equivalence in so far as it did not revoke its decision of 5 April 2011 on the basis of Article 219 of the General Tax Code. In that regard, it must be observed that there is nothing in the case-file before the Court that allows the conclusion to be drawn that that article applies differently depending on whether the right in issue is conferred by EU law or by domestic law.

 

·   Furthermore, contrary to the submission made by Nestrade at the hearing, the principle of equivalence is also not infringed by the fact that the AEAT treated differently, on the one hand, the claims for refunds of sums of input VAT paid in respect of 2008 and 2010 and for the first and second quarters of 2009 and, on the other hand, the claim for refunds of amounts of VAT in respect of the third and fourth quarters of 2009. In effect, such a difference in treatment, even if it were proven, does not in any way demonstrate a difference in treatment between rights conferred by EU law, and those of a purely domestic nature.

 

·   As regards, in the second place, the principle of effectiveness, it is clear from the case-law of the Court that the question as to whether a national procedural provision makes the exercise of rights conferred on individuals by EU law practically impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, viewed as a whole, and to the conduct and special features of that procedure before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 43 and the case-law cited).

 

·   The Court has already held that the possibility of exercising the right to a refund of excess VAT without any temporal limit would be contrary to the principle of legal certainty, which requires the tax position of the taxable person, having regard to his rights and obligations vis-à-vis the tax authorities, not to be open to challenge indefinitely (judgment of 21 June 2012, Elsacom, C‑294/11, EU:C:2012:382, paragraph 29). The Court has also stated that it is compatible with EU law to lay down reasonable time limits for bringing proceedings, in the interests of legal certainty, which protects both the taxpayer and the authorities concerned. Such periods are not by their nature liable to make it virtually impossible or excessively difficult to exercise the rights conferred by EU law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (judgment of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraph 42 and the case-law cited).

 

·   In the present case, on 23 November 2010 the AEAT asked Nestrade to provide it with the correct invoices within 10 working days of notification of the demand, which was given on 13 December 2010.

 

·   It should be noted that the order for reference does not indicate that Nestrade had notified AEAT of the fact that it was not in possession of correct invoices on the date of that authority’s request. It is moreover clear from that order that Nestrade did not provide those invoices to the AEAT in the period of almost three months which elapsed between the date on which it obtained them and the date on which the decision refusing the refund of VAT was adopted. Nestrade also did not contest the latter decision before it became final even though, according to the referring court, it could have brought an appeal against that decision within reasonable time limits.

 

·   In those circumstances, it must be held, subject to verification by the referring court, that the exercise of Nestrade’s right to a refund of VAT was not made impossible or excessively difficult in practice.

 

·   In that regard, it should be recalled that where the tax authority has the information necessary to establish that the taxable person is liable for VAT, it cannot impose additional conditions which may have the effect of rendering the right to deduct VAT ineffective (see, to that effect, judgment of 30 September 2010, Uszodaépítő, C‑392/09, EU:C:2010:569, paragraph 40).

 

·   The same reasoning necessarily applies with regard to the right to a refund of VAT. However, as regards the case in the main proceedings, it appears, as the Commission has submitted, that the AEAT did not have all the information necessary in order to determine the right to the VAT refund in issue in the main proceedings on the basis of the information that had been provided to it by Nestrade in the context of other refunds concerning the same supplier, which it is for the referring court to verify.

 

·   In the light of the foregoing considerations, the answer to the questions referred is that the provisions of the Thirteenth Directive must be interpreted as not precluding a Member State from imposing a time limit on the possibility of rectifying incorrect invoices, for example by the rectification of the VAT identification number originally shown on the invoice, for the purposes of the exercise of the right to a VAT refund, provided that the principles of equivalence and effectiveness are respected, which it is for the referring court to verify.

 

For further information click here to be forwarded to the text of the judgment as published on the website of the CJEU, which will open in a new window.

 

Did you know that in our section CJEU Rulings we have made a selection of rulings of the CJEU? We have organized these rulings based on the subject they relate to (e.g. Freedom of establishment, Free movement of capital, Indirect taxes on the raising of capital, etc).

 

 

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