# C_2009220EN.01001202.xml

| 12.9.2009 | EN | Official Journal of the European Union | C 220/12 |
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12.9.2009

EN

Official Journal of the European Union

C 220/12

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Judgment of the Court (Eighth Chamber) of 16 July 2009 — Commission of the European Communities v Italian Republic

(Case C-244/08) (1)

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(Failure of Member State to fulfil obligations - Sixth VAT Directive - Article 17 - Eighth Directive 79/1072/EEC - Article 1 - Thirteenth Directive 86/560/EEC - Article 1 - Refund or deduction of VAT - Taxable person established in another Member State or in a non-Member State, but having a fixed establishment in the Member State concerned)

2009/C 220/20

Language of the case: Italian

Parties

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and M. Afonso, acting as Agents)

Applicant:

Defendant: Italian Republic (represented by: I. Bruni, G. De Bellis and G. Palmieri, acting as Agents)

Defendant:

Re:

Re:

Failure of Member State to fulfil obligations — Infringement of Article 1 of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization 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) and Article 1 of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonization 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 — Refund of VAT to a taxable person established in another Member State or in a non-Member State but having a fixed establishment in Italy

Operative part of the judgment

Operative part of the judgment

The Court:

| 1. | Declares that the Italian Republic has failed, in relation to the refund of value added tax to a taxable person residing in another Member State or in a non-Member State, but having a fixed establishment in the Member State concerned, to fulfil its obligations under Article 1 of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization 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, and Article 1 of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonization 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, by requiring a taxable person established in another Member State or in a non-Member State, but having a fixed establishment in Italy and who, during the period at issue, supplied goods and services in Italy, to apply for a refund of input value added tax according to the mechanism provided by those directives rather than deduct it where the purchase in respect of which repayment of that tax is sought is made not through that fixed establishment, but directly by the principal establishment of that taxable person; |
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1.

Declares that the Italian Republic has failed, in relation to the refund of value added tax to a taxable person residing in another Member State or in a non-Member State, but having a fixed establishment in the Member State concerned, to fulfil its obligations under Article 1 of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization 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, and Article 1 of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonization 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, by requiring a taxable person established in another Member State or in a non-Member State, but having a fixed establishment in Italy and who, during the period at issue, supplied goods and services in Italy, to apply for a refund of input value added tax according to the mechanism provided by those directives rather than deduct it where the purchase in respect of which repayment of that tax is sought is made not through that fixed establishment, but directly by the principal establishment of that taxable person;

| 2. | Orders the Italian Republic to pay the costs. |
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2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 209, 15.08.2008.

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