# C_2015294EN.01001001.xml

| 7.9.2015 | EN | Official Journal of the European Union | C 294/10 |
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7.9.2015

EN

Official Journal of the European Union

C 294/10

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Judgment of the Court (Seventh Chamber) of 9 July 2015 (request for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Radu Florin Salomie, Nicolae Vasile Oltean v Direcția Generală a Finanțelor Publice Cluj

(Case C-183/14) (1)

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((Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Articles 167, 168, 179 and 213 - Reclassification by the national tax authority of a transaction as an economic activity subject to VAT - Principle of legal certainty - Principle of protection of legitimate expectations - National legislation making the exercise of the right of deduction subject to the identification of the trader concerned for VAT purposes and to the filing of a tax return in respect of that tax))

(2015/C 294/12)

Language of the case: Romanian

Referring court

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Parties to the main proceedings

Appellants: Radu Florin Salomie, Nicolae Vasile Oltean

Appellants:

Respondent: Direcția Generală a Finanțelor Publice Cluj

Respondent:

Operative part of the judgment

Operative part of the judgment

| 1. | The principles of legal certainty and of the protection of legitimate expectations do not preclude, in circumstances such as those of the dispute in the main proceedings, a national tax authority from deciding, following a tax audit, to subject transactions to value added tax and to impose the payment of surcharges, provided that that decision is based on clear and precise rules and that that authority’s practice has not been such as to give rise, in the mind of a prudent and well-informed trader, to a reasonable expectation that that tax would not be levied on such transactions, this being a matter for the referring court to determine. The surcharges applied in such circumstances must comply with the principle of proportionality. |
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1.

The principles of legal certainty and of the protection of legitimate expectations do not preclude, in circumstances such as those of the dispute in the main proceedings, a national tax authority from deciding, following a tax audit, to subject transactions to value added tax and to impose the payment of surcharges, provided that that decision is based on clear and precise rules and that that authority’s practice has not been such as to give rise, in the mind of a prudent and well-informed trader, to a reasonable expectation that that tax would not be levied on such transactions, this being a matter for the referring court to determine. The surcharges applied in such circumstances must comply with the principle of proportionality.

| 2. | Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax precludes, in circumstances such as those of the dispute in the main proceedings, national rules under which the right to deduct input value added tax, due or paid on goods and services used in the context of taxed transactions, is refused to the taxable person, who must nevertheless pay the tax that he ought to have recovered, for the sole reason that he was not identified for value-added-tax purposes when he carried out those transactions, so long as he has not been duly identified for value-added-tax purposes and the tax return for the tax due has not been filed. |
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2.

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax precludes, in circumstances such as those of the dispute in the main proceedings, national rules under which the right to deduct input value added tax, due or paid on goods and services used in the context of taxed transactions, is refused to the taxable person, who must nevertheless pay the tax that he ought to have recovered, for the sole reason that he was not identified for value-added-tax purposes when he carried out those transactions, so long as he has not been duly identified for value-added-tax purposes and the tax return for the tax due has not been filed.

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(1)  OJ C 253, 4.8.2014.

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