# C_2012287EN.01001402.xml

| 22.9.2012 | EN | Official Journal of the European Union | C 287/14 |
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22.9.2012

EN

Official Journal of the European Union

C 287/14

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Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — EMS-Bulgaria Transport OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv

(Case C-284/11) (1)

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(VAT - Directive 2006/112/EC - Right to deduct - Limitation period for the exercise of the right to deduct VAT - Principle of effectiveness - Refusal of the right to deduct VAT - Principle of fiscal neutrality)

2012/C 287/24

Language of the case: Bulgarian

Referring court

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Parties to the main proceedings

Applicant: EMS-Bulgaria Transport OOD

Applicant:

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv

Defendant:

Re:

Re:

Reference for a preliminary ruling — Varhoven administrativen sad — Interpretation of Articles 179, 180 and 273 of Council Directive 2006/112 of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and of the principle of effectiveness pursuant to the judgment of the Court of Justice in Joined Cases C-95/07 and C-96/07 Ecotrade and Others — Right to deduct input VAT — National legislation making the exercise of the right to deduct input VAT subject to a limitation period of three tax periods following that in which the right to deduct arose — Refusal of the right to deduct VAT on account of failure to comply with the obligation of voluntary VAT registration as an intra-Community purchaser and of failure to exercise the right to deduct within the time-limit

Ecotrade and Others

Operative part of the judgment

Operative part of the judgment

| 1. | The first paragraph of Article 179, Article 180 and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude a limitation period for the exercise of the right to deduct, such as that at issue in the main proceedings, to the extent that it does not render the exercise of that right excessively difficult or impossible in practice. It is for the national court to carry out such an assessment and it may take into account, inter alia, a subsequent considerable extension of the limitation period and the duration of a value added tax registration procedure which had to be completed within that same period for it to be possible to exercise that right to deduct. |
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1.

The first paragraph of Article 179, Article 180 and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude a limitation period for the exercise of the right to deduct, such as that at issue in the main proceedings, to the extent that it does not render the exercise of that right excessively difficult or impossible in practice. It is for the national court to carry out such an assessment and it may take into account, inter alia, a subsequent considerable extension of the limitation period and the duration of a value added tax registration procedure which had to be completed within that same period for it to be possible to exercise that right to deduct.

| 2. | The principle of fiscal neutrality precludes a penalty consisting in a refusal of the right to deduct if VAT is accounted for belatedly, but does not preclude the payment of default interest, provided that that penalty complies with the principle of proportionality, which it is for the national court to determine. |
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2.

The principle of fiscal neutrality precludes a penalty consisting in a refusal of the right to deduct if VAT is accounted for belatedly, but does not preclude the payment of default interest, provided that that penalty complies with the principle of proportionality, which it is for the national court to determine.

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(1)  OJ C 238, 13.8.2011.

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