# C_2015262EN.01000202.xml

| 10.8.2015 | EN | Official Journal of the European Union | C 262/2 |
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10.8.2015

EN

Official Journal of the European Union

C 262/2

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Request for a preliminary ruling from the Commissione Tributaria Regionale di Milano (Italy) lodged on 29 April 2015 — Agenzia delle Entrate — Direzione Regionale Lombardia v H3G SpA.

(Case C-202/15)

(2015/C 262/03)

Language of the case: Italian

Referring court

Referring court

Commissione Tributaria Regionale di Milano

Parties to the main proceedings

Parties to the main proceedings

Applicant: Agenzia delle Entrate — Direzione Regionale Lombardia

Applicant:

Defendant: H3G SpA

Defendant:

Questions referred

Questions referred

| 1) | Given that the Italian legislature has exercised the power which is accorded by Article 90(2) and the second subparagraph of Article 185(2) of Directive 2006/112/EC (1) (and, prior to the adoption of that directive, by Article 1(C)(1) and the second sentence of Article 20(1)(b) of Directive 77/388/EEC (2)) in relation to the downward adjustment of the taxable amount and the adjustment of the VAT charged on taxable transactions in cases where the consideration agreed by the parties remains totally or partially unpaid, is it compatible with the principles of proportionality and effectiveness, which are guaranteed by the TFEU, and the principle of neutrality which governs the application of VAT, to impose limits that make it impossible or excessively costly for the taxable person to recover the tax on the consideration which remains totally or partially unpaid? |
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1)

Given that the Italian legislature has exercised the power which is accorded by Article 90(2) and the second subparagraph of Article 185(2) of Directive 2006/112/EC (1) (and, prior to the adoption of that directive, by Article 1(C)(1) and the second sentence of Article 20(1)(b) of Directive 77/388/EEC (2)) in relation to the downward adjustment of the taxable amount and the adjustment of the VAT charged on taxable transactions in cases where the consideration agreed by the parties remains totally or partially unpaid, is it compatible with the principles of proportionality and effectiveness, which are guaranteed by the TFEU, and the principle of neutrality which governs the application of VAT, to impose limits that make it impossible or excessively costly for the taxable person to recover the tax on the consideration which remains totally or partially unpaid?

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| 2) | If the answer to the first question is in the affirmative, is it compatible with the principles set out above that a provision — such as Article 26(2) of Presidential Decree 633/1972 — as applied by the tax authority of the EU Member State, makes the right to recover the tax contingent on proof that insolvency or enforcement procedures have been unsuccessfully conducted, even where such procedures may reasonably be deemed to be uneconomic because of the amount of the claim, the prospects of recovery and the costs of the enforcement or insolvency procedures? |
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2)

If the answer to the first question is in the affirmative, is it compatible with the principles set out above that a provision — such as Article 26(2) of Presidential Decree 633/1972 — as applied by the tax authority of the EU Member State, makes the right to recover the tax contingent on proof that insolvency or enforcement procedures have been unsuccessfully conducted, even where such procedures may reasonably be deemed to be uneconomic because of the amount of the claim, the prospects of recovery and the costs of the enforcement or insolvency procedures?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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(2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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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