# C_2016419EN.01003001.xml

| 14.11.2016 | EN | Official Journal of the European Union | C 419/30 |
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14.11.2016

EN

Official Journal of the European Union

C 419/30

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Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București

(Case C-441/16)

(2016/C 419/39)

Language of the case: Romanian

Referring court

Referring court

Înalta Curte de Casaţie şi Justiţie

Parties to the main proceedings

Parties to the main proceedings

Applicant: SMS group GmbH

Applicant:

Defendant: Direcţia Generală Regională a Finanțelor Publice a Municipiului București

Defendant:

Questions referred

Questions referred

| 1. | Must Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, (1) in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, (2) be interpreted as precluding a practice of a national tax administration which considers that there is no objective evidence to confirm the declared intention of the taxable person to use the goods imported in connection with its economic activity in the case where, on the date of the actual importation, the contract for the performance of which the taxable person had purchased and imported the goods was suspended, with the serious risk that the subsequent supply/transaction for which the imported goods were intended would no longer be carried out? |
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1.

Must Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, (1) in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, (2) be interpreted as precluding a practice of a national tax administration which considers that there is no objective evidence to confirm the declared intention of the taxable person to use the goods imported in connection with its economic activity in the case where, on the date of the actual importation, the contract for the performance of which the taxable person had purchased and imported the goods was suspended, with the serious risk that the subsequent supply/transaction for which the imported goods were intended would no longer be carried out?

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| 2. | Does proof of the subsequent circulation of the imported goods, that is to say, establishment of the fact that the imported goods were actually intended for the taxable transactions of the taxable person, constitute, and if so in what way, an additional condition required for the purposes of refunding VAT, different from those listed in Articles 3 and 4 of Directive 79/1072/EEC and prohibited by Article 6 thereof, or necessary information on the essential condition for refunding relating to the use of the imported goods in connection with taxable transactions, which the tax authority may request under Article 6 thereof? |
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2.

Does proof of the subsequent circulation of the imported goods, that is to say, establishment of the fact that the imported goods were actually intended for the taxable transactions of the taxable person, constitute, and if so in what way, an additional condition required for the purposes of refunding VAT, different from those listed in Articles 3 and 4 of Directive 79/1072/EEC and prohibited by Article 6 thereof, or necessary information on the essential condition for refunding relating to the use of the imported goods in connection with taxable transactions, which the tax authority may request under Article 6 thereof?

| 3. | Can Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, be interpreted as meaning that the right to a refund of VAT may be denied in the case where the subsequent transaction planned, in connection with which the imported goods were intended to be used, is no longer carried out? In those circumstances, does the actual intended use of the goods, that is to say, whether they were used in any event, in what way and in which territory, namely in that of the Member State in which the VAT was paid or outside that State, have any relevance? |
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3.

Can Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, be interpreted as meaning that the right to a refund of VAT may be denied in the case where the subsequent transaction planned, in connection with which the imported goods were intended to be used, is no longer carried out? In those circumstances, does the actual intended use of the goods, that is to say, whether they were used in any event, in what way and in which territory, namely in that of the Member State in which the VAT was paid or outside that State, have any relevance?

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(1)  Eighth Council Directive of 6 December 1979 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 the territory of the country (OJ 1979 L 331, p. 11).

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(2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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