Judgment — ECLI:EU:C:2026:192
Date: 2026-03-12
Language of the case: Italian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-527/24 – 1 
Case C-527/24 
Request for a preliminary ruling 
Date lodged: 
31 July 2024 
Referring court: 
Corte di Giustizia Tributaria di primo grado di Pescara (Italy) 
Date of the decision to refer: 
19 July 2024 
Applicant: 
Harry et Associés Sarl 
Respondents: 
Agenzia delle entrate – Riscossione – Pescara 
Agenzia delle entrate – Centro operativo di Pescara 
  
Corte di Giustizia Tributaria di primo grado di PESCARA Sezione 2 (Tax Court 
of First Instance, Second Division, Pescara, Italy) […] 
on 14/05/2024, issued the following 
ORDER 
– on the appeal […] 
lodged by: 
Harry Et Associés Sarl […] 
[…] [representatives] 
v 
Agenzia delle entrate – Riscossione – Pescara 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 7. 2024 – CASE C-527/24 
 
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Agenzia delle entrate – Centro operativo di Pescara 
[…] 
Challenging: 
- PAYMENT ORDER No 08320230013011681000 VAT-ALTRO 2023 
[…] 
RELEVANT FACTS AND POINTS OF LAW 
This court […], in the proceedings […] brought by: 
– HARRY ET ASSOCIES (formerly HARRY ET ASSOCIES 
SARL), with head office in Boulogne-Billancourt (Hauts de Seine) 
[…] [France], [representatives] 
issued this order to refer a question to the Court of Justice of the European Union 
for a preliminary ruling under Article 267 TFEU and Article 93 et seq. of the 
Rules of Procedure of the Court of Justice of the European Union, with a request 
for an expedited procedure under Article 105 et seq. of the Rules of Procedure. 
1. The case before the Pescara Tax Court of First Instance 
On 26 September 2016, the company Harry et Associés filed a refund application 
with the French tax authority for EUR 98 740.93, relating to transactions 
conducted in Italy in 2015. 
The French tax authority forwarded this request to the Centro Operativo di 
Pescara (Pescara Operational Centre, ‘COP’), namely, the Italian tax authority that 
was to provide the refund. This administrative application, which was transmitted 
electronically, contained errors that rendered the file unreadable; therefore, even 
though the application was duly acquired by the French tax authority first and then 
by the COP, it was not processed, giving rise to a mere silence on the part of the 
tax authority. 
Faced with the COP’s silence/inaction, Harry et Associés lodged an appeal before 
the Tax Court of First Instance, which, ruling on the merits, recognised that the 
applicant was indeed entitled to a VAT refund. 
The COP duly paid out the VAT refund, though it appealed to the Tax Court of 
Second Instance. 
The appeals court held that it had to overturn the ruling given in the first instance 
proceedings, finding that the application [brought by the French company] was 
inadmissible, and holding that the original administrative refund application was 
tamquam non esset, or, more exactly, unsuitable to trigger a situation of silent 
HARRY ET ASSOCIÉS 
 
3 
denial by the tax authorities, this being a procedural prerequisite for a judicial 
challenge. 
Harry et Associés then appealed to the Corte di Cassazione (Supreme Court of 
Cassation); however, that appeal was rejected, as the court of last instance 
affirmed the following principle of law: ‘An application for the refund of a VAT 
credit, which, owing to technical faults in the electronic transmission, is not 
visible to the tax authorities, is not suitable for creating a situation of appealable 
silent denial, as the tax authorities are not in a position to take action’. 
On the basis of that Supreme Court of Cassation judgment, the COP issued a 
payment order for EUR 98 740.93, plus interest and legal costs, for the recovery 
of the previously disbursed VAT refund, an order that was served on Harry et 
Associés on 11 September 2023. 
Harry et Associés challenged that payment order before the Tax Court of First 
Instance, arguing that it was necessary to set aside the judgment of the Supreme 
Court of Cassation as it was at odds with Article 167 of Directive 2006/112/EC, 
the general principles of the neutrality of VAT and the proportionality of the 
limitation of the right to deduct VAT, and that it was consequently necessary to 
rule on the merits of the case in order to recognise the entitlement to a VAT 
refund, and to annul the payment order issued by the COP aimed at recovering the 
previously disbursed refund. 
In the case at hand, the Tax Court is therefore called upon to rule on an extremely 
complex issue involving the correct application of [EU] law. 
2. The relevant national legislation 
In the case at hand, everything revolves around Article 38 bis 2 of Italian 
Presidential Decree No 633/1972 and Article 21(2) of Italian Legislative Decree 
No 546/1992. More specifically, Article 38 bis 2, entitled ‘Esecuzione dei 
rimborsi a soggetti non residenti [Execution of refunds to non-resident persons]’, 
in the part that is relevant here, sets out the following: ‘1. Persons established in 
other Member States of the Community that are liable to the tax in the State where 
they have their domicile or residence shall apply for the refund of the tax paid on 
the import of goods and the purchases of goods and services in so far as it is 
deductible pursuant to Articles 19, 19 bis 1 and 19 bis 2, in accordance with the 
provisions of this Article. A refund cannot be claimed by persons that had a 
permanent establishment in the territory of the State […] during the relevant 
period. [national provision not relevant to the question referred] 4. The 
application for a refund must be submitted electronically via the Member State 
where the applicant is established. 5. […]. The decision on the tax refund shall be 
notified to the applicant within four months of receipt of the request, subject to the 
provisions set out in the following paragraphs. 6. Within the time limit of four 
months referred to in paragraph 5, and in order to obtain all relevant information 
on which to base a decision on a refund, the [tax] office may request additional 
REQUEST FOR A PRELIMINARY RULING OF 19. 7. 2024 – CASE C-527/24 
 
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information by electronic means from the person applying for a refund, or from 
the Member State where that person is established. The additional information 
may be requested from a different party, including electronically, only if the 
addressee has the necessary tools available. The requested information must be 
provided to the [tax] office within one month from the date the recipient receives 
the request. In the case of a request for additional information, the communication 
referred to in paragraph 5 shall be made within two months from the day on which 
the information was received by the office or within two months from the 
unsuccessful expiry of the one-month time limit referred to in the third sentence. 
The aforementioned time limits do not apply if they expire before the lapse of a 
six-month period after the application for reimbursement is received, in which 
case the office shall make the communication referred to in paragraph 5 within six 
months of receiving the application. 7. The office may request additional 
information to that provided for in paragraph 6. The requested information must 
be provided to the office within one month from the date the recipient receives the 
request. In this case, the communication referred to in paragraph 5 shall in any 
case be made within eight months from the date of receipt of the refund request 
[…] Persons who receive an undue refund shall return the unduly disbursed sums 
within sixty days from the notification of an order to this effect issued by the 
office […]. 12. Pending payment of the amount due by way of unduly disbursed 
refund and of the applicable penalties, the office shall suspend any further refund 
to the person concerned, up to reaching that same amount’. 
Article 21, Legislative Decree No. 546/1992 sets out in its second paragraph: ‘… 
2. An appeal against a silent denial, as referred to in Article 19, par. 1 letters g) 
and g) bis, may be brought from the 90th day following the submission of an 
application for a refund within the time limits laid down in the individual tax 
statutes, and up until such time as the right to a refund becomes time-barred. 
Unless otherwise provided, the application for a refund may not be submitted 
more than two years after the latest between the date of payment or the date on 
which the conditions for a refund arise’. 
Also relevant in this case are Article 2909 of the Italian Civil Code, which sets the 
scope of res judicata, deeming it to be such as to crystallise the dispute and 
prevent any further challenge, and Article 324 of the Italian Code of Civil 
Procedure, a rule dedicated to formal res judicata, which must be read in 
conjunction with the former provision. Article 2909, entitled ‘Res judicata’, sets 
out that ‘the finding in the res judicata judgment shall be conclusive for all 
purposes between the parties, their heirs or successors in title’. Article 324 of the 
Code of Civil Procedure, entitled ‘Formal res judicata’ sets out that ‘a judgment 
shall be deemed to have become res judicata if it is no longer subject to either a 
jurisdiction decision, appeal, cassation or revision on the grounds set out in 
Article 395 paragraphs 4 and 5’. 
Both articles are unquestionably applicable to the case at hand pursuant to 
Article 1, paragraph 2 of Legislative Decree No 546/1992, laying down that ‘the 
tax courts shall apply the provisions of this Decree and, as regards what is not 
HARRY ET ASSOCIÉS 
 
5 
provided for herein and is not compatible therewith, the provisions set out by the 
Code of Civil Procedure’. 
3. Potential incompatibility with EU law 
Supreme Court [of Cassation] Order No 11409/2023 held, on the grounds of 
formal and procedural defects, that Harry et Associés was not entitled to a VAT 
refund. Thus, it was in flagrant disregard of [EU] law, the supremacy and direct 
applicability of which cannot be precluded in practice by formal and/or procedural 
limitations. 
*** 
In this regard, the Supreme Court of Cassation based its order unfavourable to the 
taxpayer on the following principle of law: ‘An application for refund of a VAT 
credit, which, owing to technical faults in the electronic transmission, is not 
visible to the tax authorities, is not suitable for creating a situation of appealable 
silent denial, since the tax authorities are not in a position to take action’. 
The fact that, on the basis of the order issued by the Supreme Court of Cassation, 
VAT already refunded by the Agenzia delle Entrate [Italian Revenue Agency] to 
Harry et Associés should be returned on the basis of the substantive legislation 
would entail a breach of the principle of neutrality and of the right to deduct in 
respect of Value Added Tax, laid down in Articles 167 and 203 of Directive 
2006/112/EC and in Article 19 of Presidential Decree No 633/72 in force in Italy, 
which protects the well-known deduction principle. 
The recovery of the VAT refund, which is claimed by Italy by means of the tax 
payment order challenged by HARRY ET ASSOCIES SARL, inevitably entails 
that the tax’s neutrality mechanism vanishes and that, due to formalistic and 
captious interpretations, that same taxpaying company would be unduly affected 
by the tax. 
The EU legislation remedies these drawbacks undermining the principle of the 
tax’s neutrality by allowing an EU resident taxable person to claim the refund of 
the VAT paid on purchases in another Member State, as the right of deduction 
mechanism cannot function in this case. It is settled [EU] case-law that formalistic 
interpretations and applications of procedural rules precluding the aforementioned 
rights [originating from EU law] are inapplicable and inadmissible. 
In Italy, the right to a refund of VAT paid on purchases by an EU resident taxable 
person is governed by Article 38 bis 2 of Presidential Decree No 633/1972. 
That said, the right to the refund of the tax paid on purchases was denied to 
the applicant on account of a problem not attributable to it, being of an 
exclusively formal and technical nature – namely, the corrupted electronic file 
that was transmitted. 
REQUEST FOR A PRELIMINARY RULING OF 19. 7. 2024 – CASE C-527/24 
 
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The recovery of the tax refunded to the applicant, on account of an error not 
attributable to its conduct, therefore clearly entails a breach of the aforementioned 
provisions on VAT neutrality and the right to deduct VAT in respect of income 
transactions carried out in 2015 and subject to VAT in France, where Italian VAT 
is irrecoverable, as well as a serious breach of [EU] law. Indeed, there is no 
remedy for HARRY ET ASSOCIES SARL [allowing it to] recover in its country 
of origin the tax paid on purchases in Italy, the reimbursement of which would 
result in the undue enrichment of the Italian State and an irremediable economic 
loss for the French company. 
On this point, there are numerous CJEU judgments that have ruled that national 
provisions or procedures that infringe the right of deduction to the detriment of the 
principle of neutrality are incompatible with [EU] law, or that, even more 
specifically, have held that the right to a refund is well-founded when there are 
mere errors of a formal nature in the underlying procedure or documentation, with 
the substantive aspect always prevailing. 
It is worth mentioning on this matter some of the well-known Olimpic Clu, 
Halifax and Lucchini judgments, in which the CJEU held the application of the 
aforementioned Article 2909 to be incompatible with EU law in so far as it limited 
the refund of VAT, customs duties, or state aid in situations in which the national 
authorities deemed that they had to rely on a final ruling on the same issue and 
between the same parties. 
The scope of the exceptio rei iudicatae must be brought back within these limits: 
(a) a res judicata is not enforceable between the parties only if it entails an 
infringement of rules regarding matters of exclusive EU competence (Lucchini 
case: infringement, covered by a national res judicata, of an exclusive 
Commission of the European Communities competence), (b) when that is not the 
case, and legal certainty must give way to effet utile, an interpretation ‘in 
conformity with [EU] law’ of the internal procedural rules is at issue, with a 
remodulation of the objective limits of a res judicata (Olimpiclub: ‘external’ 
judgment capable of precluding the application of [EU] rules against VAT 
avoidance, even for tax years unrelated to the subject matter of the dispute). These 
are certainly interests that come to the fore in the concrete case at hand and that, 
with a view to proper balancing, see [EU] law take precedence over national law. 
4. The conditions that make it legitimate and necessary to submit a request 
for a preliminary ruling 
The case at hand, which now has to be resolved by the Pescara Tax Court of First 
Instance, falls squarely within the scope of the interpretation question outlined 
above. This court must in fact rule on the admissibility of the appeal lodged by 
Harry et Associés, by which the French taxpayer company asks the tax court to 
rule on the substance of the existence of the right to a VAT refund in accordance 
with Article 167 [of] Directive 2006/112/EC, the general principles of VAT 
HARRY ET ASSOCIÉS 
 
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neutrality and the proportionality of the limitation of the right to deduct VAT. 
However, in order for the Tax Court to be allowed to rule on the merits, it 
becomes necessary to ascertain whether [EU] law precludes a national 
regulation – that set out by Article 21(2) of Legislative Decree 546/1992 – which 
in domestic law allows a refund application vitiated by technical computer errors 
to be regarded as devoid of effect, [precluding] direct access to the courts and 
such as to entail forfeiture of the right to be refunded despite a substantive 
situation in which the VAT refund is due to the taxpayer. 
Moreover, it becomes necessary to ascertain whether [EU] law precludes a 
decision that has become final and therefore res judicata – as, in the case at hand 
is Supreme Court of Cassation Order No 11409/2023 – and which, under national 
law, precludes a review of the merits of the entitlement to a VAT refund by 
relying on Article 2909 of the Civil Code and Article 324 of the Code of Civil 
Procedure. 
In essence, the Tax Court of Pescara, in relation to the litigation currently pending 
before it, has doubts on: 
– whether the Supreme Court of Cassation acted properly, as, in dealing 
with such a complex matter that is certainly relevant to the supremacy 
of [EU] law, being the court of last instance, it should have referred a 
specific interpretation question to the Court of Justice for a preliminary 
ruling under Article 267 TFEU; 
– the correct interpretation of Article 21(2) of Legislative Decree 
546/1992, as, although there were formal and electronic flaws in the 
administrative application for refund, once the case reached the 
jurisdictional stage in the first-instance proceedings – which ended 
with the award of the VAT refund – there was a full cross-examination 
and full knowledge of the facts and law, with all objections on the 
unsuitability of the previous application for refund submitted in the 
administrative proceedings being treated as formalistic and irrelevant; 
– the correct interpretation of Article 38 bis 2 of Presidential Decree 
No 633/1972, given that, in order to protect the supremacy of 
taxpayers’ rights [originating under EU law], paragraphs 5, 6 and 7 of 
the aforementioned provision set out investigative and information 
duties to be borne by the Italian tax authorities, which were not 
discharged, with those authorities limiting themselves to keeping an 
inert and negligent silence; 
– the correct interpretation of Article 2909 of the Civil Code and 
Article 324 of the Code of Civil Procedure, where they seem to 
preclude the judgment on the merits that is now before the referring 
Tax Court of First Instance, which is ‘forced’ to apply the principle of 
law affirmed by the Supreme Court of Cassation. 
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5. The current existence of judicial proceedings 
As can be inferred unequivocally from the preceding point, a serious breach of 
[EU] law and in particular of Article 167 […] Directive 112/[2006/]EC constitutes 
the subject matter of the proceedings currently pending before the [Tax] Court of 
First Instance in Pescara. 
6. Request for an expedited procedure 
In the case at hand, domestic law, at Article 38 bis 2, paragraph 12 [of Presidential 
Decree 633/1972], provides that ‘pending payment of the amount due by way of 
unduly paid refund and of the relevant penalties, the office shall suspend any 
further refund to the person concerned up to reaching the same amount’. 
The suspension of these main proceedings will inevitably prolong this generalised 
and extraordinary prohibition power held by the Italian tax authority, unduly 
paralysing the normal neutral functioning of VAT. There thus appears to be 
sufficient reason to ask the President of the Court of Justice to consider subjecting 
the reference for a preliminary ruling to expedited procedure. 
7. Question to be referred to the Court of Justice for a preliminary ruling 
‘Do Article 167 of Directive 2006/112/EC and the general principles of VAT 
neutrality and proportionality of the limitation of the right to deduct VAT 
preclude: 
– (a) national rules – identifiable with Article 21(2) of Legislative 
Decree 546/1992 and Article 38 bis.2 of Presidential Decree 
No 633/1972 – which, in domestic law, by allowing a refund 
application vitiated by technical computer errors to be declared as 
devoid of effect, preclude access to the courts, and are such as to 
entail forfeiture of the right to be refunded in a substantive situation in 
which the VAT refund is due to the taxpayer; 
– (b) a principle of law, such as that affirmed by the Supreme Court of 
Cassation, whereby ‘an application for refund of a VAT credit, which, 
owing to technical faults in the electronic transmission, is not visible to 
the tax authorities, is not suitable for creating a situation of 
appealable silent denial, as the tax authorities are not in a position to 
take action’, such as to preclude direct access to the courts in the case 
at hand, and therefore such as to entail forfeiture of the right to a 
refund even in a substantial situation in which the refund is due?’ 
ON THOSE GROUNDS 
The Tax Court of First Instance of Pescara, 
HARRY ET ASSOCIÉS 
 
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having regard to Article 267 TFEU and Articles 93 et seq. of the Rules of 
Procedure of the Court of Justice; 
refers the following question to the Court of Justice of the European Union 
for a preliminary ruling, as provided for at point 7 of this order […] 
[…] [suspension of proceedings and instructions to the court registry, e-mail 
addresses]