# C_2014202EN.01001502.xml

| 30.6.2014 | EN | Official Journal of the European Union | C 202/15 |
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30.6.2014

EN

Official Journal of the European Union

C 202/15

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Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 25 April 2014 — NLB Leasing d.o.o. v The Republic of Slovenia

(Case C-209/14)

2014/C 202/18

Language of the case: Slovenian

Referring court

Referring court

Vrhovno sodišče Republike Slovenije

Parties to the main proceedings

Parties to the main proceedings

Applicant: NLB Leasing d.o.o.

Applicant:

Defendant: The Republic of Slovenia — Ministrstvo za finance

Defendant:

Questions referred

Questions referred

| 1. | Having regard to circumstances such as those of the case in the main proceedings, on a proper construction of Article 90(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, does the return of the property that is the object of a lease agreement (immovable property), as a result of the lessee’s failure to perform its obligations in full, into the possession of the lessor for the purposes of its subsequent sale and performance of the other obligations under the lease agreement, once all the payment instalments under the lease have fallen due, constitute a case of ‘cancellation, refusal or total or partial non-payment’ after the supply has taken place, in consequence of which the basis of assessment is to be reduced accordingly? |
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1.

Having regard to circumstances such as those of the case in the main proceedings, on a proper construction of Article 90(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, does the return of the property that is the object of a lease agreement (immovable property), as a result of the lessee’s failure to perform its obligations in full, into the possession of the lessor for the purposes of its subsequent sale and performance of the other obligations under the lease agreement, once all the payment instalments under the lease have fallen due, constitute a case of ‘cancellation, refusal or total or partial non-payment’ after the supply has taken place, in consequence of which the basis of assessment is to be reduced accordingly?

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| 2. | On a proper construction of Articles 2, 14 and 24(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must the financial consideration relating to a purchase option be regarded as consideration for the performance of the agreement and as a supply of goods and, as such, subject to VAT, when it represents the greater part of the total amount due under a financial leasing agreement and is paid by the lessee to the lessor in such a way that, as a result of the failure in part to perform obligations, the lessor regains possession of the subject-matter of the lease agreement, sells it to a third party and pays the excess of the sale price to the lessee after deducting, in the final account, the sum relating to the purchase option, or must it be regarded as consideration for the service of the rent of, or for the use of, the property (and, as such, subject to VAT by law or at the option of the taxable persons), or must it rather be regarded as compensation for damage for the termination of the agreement, paid in order to make good the loss caused by the lessee’s failure to perform and having no direct connection with any provision of services for consideration and, as such, not subject to VAT? |
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2.

On a proper construction of Articles 2, 14 and 24(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must the financial consideration relating to a purchase option be regarded as consideration for the performance of the agreement and as a supply of goods and, as such, subject to VAT, when it represents the greater part of the total amount due under a financial leasing agreement and is paid by the lessee to the lessor in such a way that, as a result of the failure in part to perform obligations, the lessor regains possession of the subject-matter of the lease agreement, sells it to a third party and pays the excess of the sale price to the lessee after deducting, in the final account, the sum relating to the purchase option, or must it be regarded as consideration for the service of the rent of, or for the use of, the property (and, as such, subject to VAT by law or at the option of the taxable persons), or must it rather be regarded as compensation for damage for the termination of the agreement, paid in order to make good the loss caused by the lessee’s failure to perform and having no direct connection with any provision of services for consideration and, as such, not subject to VAT?

| 3. | If the answer to the second question should be that the sum in question is to be regarded as consideration for the supply of goods and the performance of the agreement, does the principle of the neutrality of VAT preclude a lessor’s having to pay output VAT twice, that is to say, once on the conclusion of a financial leasing agreement (including in respect of the purchase option, which represented the greater part of the contract value) and, as a result of the lessee’s failure to fulfil its obligations in full, a second time, on the subsequent sale of the immovable property in question to a third party, even though the liability to pay VAT on the second supply has been passed on to the lessee in the final account? |
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3.

If the answer to the second question should be that the sum in question is to be regarded as consideration for the supply of goods and the performance of the agreement, does the principle of the neutrality of VAT preclude a lessor’s having to pay output VAT twice, that is to say, once on the conclusion of a financial leasing agreement (including in respect of the purchase option, which represented the greater part of the contract value) and, as a result of the lessee’s failure to fulfil its obligations in full, a second time, on the subsequent sale of the immovable property in question to a third party, even though the liability to pay VAT on the second supply has been passed on to the lessee in the final account?

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(1)  OJ 2006 L 347, p. 1.

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