Opinion of the Advocate General — ECLI:EU:C:2022:388
Date: 2022-05-12
Language of the case: Slovenian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
12 April 2021 
Referring court:  
Vrhovno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer:  
17 March 2021 
Appellant:  
RAIFFEISEN LEASING, trgovina in leasing d. o. o. 
Respondent:  
Republika Slovenija 
  
Subject matter of the main proceedings 
Appeal in cassation in the context of contentious administrative proceedings; 
value added tax (VAT); Council Directive 2006/112/EC; characterisation of an 
immovable property financial leasing agreement as an invoice for the purposes of 
the declaration and deduction of VAT; essential information that the agreement 
must contain in order to be regarded as an invoice; 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. May a written agreement be regarded as an invoice, for the purposes of 
Article 203 of the VAT Directive, only if it contains all of the information that is 
required to be set out in an invoice in accordance with Chapter 3 (‘Invoicing’) [of 
Title XI] of the VAT Directive? 
EN 
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In the event that that question is answered in the negative: 
2. On the basis of what information and circumstances may a written 
agreement in any event be regarded (also) as an invoice giving rise to an 
obligation to pay VAT within the meaning of Article 203 of the VAT Directive? 
More specifically: 
3. May a written agreement, concluded by two taxable persons subject to VAT 
and concerning the supply of goods or services, be regarded as an invoice within 
the meaning of Article 203 of the VAT Directive if it evidences an express and 
objectively identifiable intention on the part of the seller or the provider of 
services, as a contracting party, to issue an invoice for a specific transaction, such 
that the purchaser could reasonably assume that it had, on the basis thereof, a right 
to deduct the input VAT paid? 
Provisions of EU law cited 
Council Directive 2006/112/EC, in particular Article 203, and Articles 63, 178, 
218 and 226 to 230 thereof 
Provisions of national law cited 
Zakon o davku na dodano vrednost (Law on value added tax; ‘the ZDDV-1’), 
Articles 67, 76 and 82 to 84.a thereof 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant in cassation, the company Raiffeisen Leasing, d.o.o. (‘Raiffeisen 
Leasing’), entered into a financial leasing agreement and a sale and purchase 
agreement relating to immovable property (a sale and lease back transaction) with 
the company RED, d.o.o. (‘RED’). 
2 RED was the owner of land on which stood an old residential building, in Rožna 
Dolina. It wished to erect a new building there. For financing purposes, the parties 
agreed, in an immovable property financial leasing agreement concluded on 
19 November 2007 (‘the agreement’), that Raiffeisen Leasing would purchase the 
property from RED and that RED would then pay leasing instalments up to the 
value of the existing land and the new buildings (EUR 1 294 786.56). That 
agreement also stated an amount of value added tax (‘VAT’), namely 
EUR 110 056.86. 
3 Raiffeisen Leasing did not issue to RED any (specific) invoice on the basis of the 
agreement. Nor did it declare or pay VAT. RED exercised its right to deduct VAT 
on the basis of the agreement, as if the agreement itself had been an invoice, and 
reported the deduction in its VAT return. 
RAIFFEISEN LEASING 
 
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4 In that context, three days later, as agreed, the two companies concluded a sale 
and purchase agreement, dated 22 November 2007 (‘the sale agreement’), relating 
to the land and the old building. The two companies agreed upon a price inclusive 
of VAT and RED issued to Raiffeisen Leasing an invoice inclusive of VAT. 
5 In November 2007, Raiffeisen Leasing, the appellant in cassation, exercised the 
right to deduct VAT on the basis of the sale agreement. 
6 RED, however, failed to fulfil its obligations within the stipulated period and the 
agreement was terminated by mutual consent almost four years later, on 
21 February 2011. Raiffeisen Leasing subsequently sold the property on to 
another purchaser, at a price inclusive of VAT. 
7 On 25 July 2014, RED was served with a final decision refusing it the right to 
deduct VAT on the basis of the agreement. 
8 In the course of a tax inspection procedure, it was established (in a first- and 
second-instance tax assessment) that Raiffeisen Leasing (1) ought to have 
accounted for VAT on the agreement and (2) should not have exercised the right 
of deduction on the basis of the sale agreement. 
9 As regards (1): the Finančna uprava Republike Slovenije (tax authority of the 
Republic of Slovenia; ‘the tax authority’) based the liability to VAT on 
Article 76(1)(9) of the Zakon o davku na dodano vrednost (Law on value added 
tax; ‘the ZDDV-1’), which provides that ‘VAT is payable by any person who 
mentions VAT on an invoice’. In its opinion, the agreement, which set out a price 
inclusive of VAT, had substantially the content of an invoice and RED had 
become entitled, on the basis thereof, to exercise its right to deduct VAT. 
Consequently, an obligation to pay VAT also arose at that time. 
10 The tax authority subsequently adopted a decision refusing RED the right to 
deduct VAT on the basis of the agreement. At that point, Raiffeisen Leasing 
accordingly acquired the right to reduce (correct) the VAT declaration, since the 
effect of the tax authority’s decision was that there was no longer a risk of loss of 
tax revenue. Prior to that, however, (from 3 January 2008 to 25 July 2014) there 
had been a period during which Raiffeisen Leasing was under an obligation, in the 
tax authority’s opinion, to declare the VAT, which it had failed to do. With 
reference to that intervening period, the tax authority applied interest on the tax 
debt amounting to EUR 50 571.88. 
11 As regards (2): in the tax authority’s opinion, the transaction under the sale 
agreement was legally exempt from VAT pursuant to Article 44(7) of the 
ZDDV-1, which provides that ‘the supply of buildings or parts thereof, and of the 
land on which they stand, shall be exempt from VAT, unless the supply takes 
place before the buildings or parts thereof are occupied or otherwise used for the 
first time, or the supply takes place within two years of the date of first occupation 
or first use.’ The tax declaration under which a person may choose to render a 
transaction subject to VAT, in accordance with Article 45 of the ZDDV-1, was 
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not submitted by the contracting parties to the tax authorities. Consequently, no 
right to deduct could be claimed, even though an invoice had been issued which 
(wrongly) stated an amount of VAT. The tax authority therefore assessed 
additional VAT of EUR 44 200.00, together with interest of EUR 11 841.97. In 
the tax authority’s opinion, it was irrelevant that (once the agreement had been 
terminated) the property was sold on to another purchaser under a transaction 
subject to VAT. The transaction under the sale agreement was exempt from VAT, 
and subsequent events had no bearing on that. 
12 In the course of administrative proceedings, the Ministry of Finance rejected the 
appellant’s claim as unfounded and upheld the decision of the tax authority, as the 
authority of first instance. 
13 Raiffeisen Leasing brought an action which was dismissed by the Upravno 
sodišče (Administrative Court) on grounds substantially identical to those set out 
in the decision of the tax authority and the decision of the Ministry of Finance, as 
the authority of second instance. 
14 Raiffeisen Leasing then applied for leave to bring an appeal in cassation against 
the judgment of the Upravno sodišče (Administrative Court), which was partially 
granted by the Vrhovno sodišče (Supreme Court), which granted leave for the 
appeal in cassation by order of 20 May 2020, inter alia, for the purpose of 
resolving the following important legal issue: ‘When may a bilateral arrangement 
(an agreement) be regarded as an invoice for the purposes of the [ZDDV-1] and 
the [VAT] Directive?’ On that basis, Raiffeisen Leasing brought its appeal in 
cassation, on which the Vrhovno sodišče (Supreme Court) is now required to give 
its ruling. 
The essential arguments of the parties in the main proceedings 
15 The respondent, taking the view that the agreement in question also constituted an 
invoice, one in which VAT was stated, decided that the appellant was required to 
pay the VAT, in accordance with Article 76(9)(1) of the ZDDV-1, something 
which it had failed to do in the relevant tax year. 
16 The important point is that the appellant did not regard the agreement in question 
as an invoice for the purposes of the ZDDV-1 and the VAT Directive, whereas the 
other contracting party, RED, used the agreement, or more precisely attempted to 
use the agreement, as an invoice, in order to make the VAT deduction. 
17 The respondent’s position was also held to be substantially correct by the Upravno 
sodišče (Administrative Court) in the judgment under appeal. In its appeal in 
cassation, the appellant once again disputes, by reasoned argument, the 
characterisation of the agreement as an invoice, from which its obligation to pay 
the VAT, in accordance with the legislative provision cited above, allegedly arose. 
It disputes that the agreement concluded may be regarded as an invoice, asserting 
that it did not contain all the information required to be set out in an invoice (in 
RAIFFEISEN LEASING 
 
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that neither the VAT rate was mentioned nor the date on which the supply of 
goods was to take place) and that the formal requirements were therefore not met 
which would have enabled the other contracting party, RED, to exercise the right 
to deduct input VAT, and so there was no risk of loss of tax revenue. In the 
appellant’s submission, it merely undertook in the agreement to supply to its 
counterparty the immovable property, which it had not yet acquired at the time 
when it entered into the agreement (and which it acquired only three days later), 
and so the agreement did not, as such, give rise to the supply of immovable 
property. This shows that it was not the appellant’s intention that the agreement 
should constitute an invoice, since, had it intended to issue an invoice, it would 
have issued one containing all the information prescribed by the ZDDV-1. The 
appellant therefore disputes the position taken by the respondent and the Upravno 
sodišče (Administrative Court) according to which the agreement may be regarded 
as an invoice simply because it mentioned the subject matter of the supply, the 
basis of assessment and the amount. In the appellant’s submission, that position is 
arbitrary, inasmuch as it could imply that even an offer (agreement) in which only 
those items of information are stated could be regarded as an invoice (and thus as 
a basis for VAT liability). 
Succinct presentation of the grounds for the request for a preliminary ruling 
18 In the present case, the dispute persists only in so far as concerns the obligation to 
pay VAT on the basis of an invoice which is alleged to have been issued in the 
form of a written agreement concluded between the appellant in cassation, 
Raiffeisen Leasing, and the other party to the agreement, RED, on 19 November 
2007, in which an amount of VAT was stated (EUR 110 056.86). The question 
which arises concerns the interpretation of when liability to pay VAT arises, and it 
arises from the fact that the issuer of the alleged invoice entered VAT on it, as 
provided for by Article 203 of the VAT Directive and Article 76(1)(9) of the 
ZDDV-1, which transposed the provision into Slovenian law in identical terms. 
The correct interpretation of the provision in question of the ZDDV-1 thus 
depends entirely on the correct interpretation of Article 203 of the VAT Directive. 
19 That obligation, provided for by Article 203 of the VAT Directive, is, according to 
the case-law of the Court of Justice of the European Union (‘the Court’), 
independent of the actual existence of a taxable transaction until such time as any 
possible deficiency is remedied in accordance with the conditions laid down in the 
directive (see, for example, the judgment of 31 January 2013, LVK, C-643/11, 
EU:C:2013:55). The purpose of that provision, in the context of guaranteeing the 
effectiveness and neutrality of the VAT system, is to prevent any risk of loss of 
tax revenue from arising where the addressee of an invoice in which VAT is 
incorrectly stated might still use it for the purpose of exercising the right of 
deduction (see, to that effect, the judgment of 18 June 2009, Stadeco (C-5[6]6/07, 
EU:C:2009:380, paragraph 29). 
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20 In order for that obligation to pay VAT to arise it is therefore necessary for an 
invoice within the meaning of the VAT Directive and the ZDDV-1 to have been 
issued. If no such invoice has been issued, then no obligation to pay VAT can 
logically arise. Article 218 of the VAT Directive is relevant in this regard: it 
provides that, for the purposes of the directive, the Member States are to accept 
documents or messages on paper or in electronic form as invoices if they meet the 
conditions laid down in Chapter 3 (‘Invoicing’) [of Title XI]. Article 218 of the 
VAT Directive was transposed by Article 81(8) of the ZDDV-1. 
21 The Vrhovno sodišče (Supreme Court) is nevertheless unsure whether a document 
that does not set out all the mandatory information that an invoice must include, in 
accordance with Articles 226 to 230 of the VAT Directive (Articles 82 to 84 of 
the ZDDV-1), can cause an obligation to pay VAT to arise for the party which 
issued that document. In other words, it is unsure what particulars may, in any 
event, constitute an invoice and trigger the obligation to pay VAT in accordance 
with Article 203 of the directive. 
22 It is apparent from the Court’s case-law that the VAT Directive allows the 
obligation under Article 203 to arise even where the invoice does not contain all 
the required information stipulated in Article 226 et seq. of the directive. 
According to the case-law to date, an obligation to pay VAT can arise as a result 
of the issue of an invoice which mentions VAT, even where the invoice does not 
contain some of the information required by the VAT Directive, for example, 
where the place of the supply of services to which the invoice relates is not 
mentioned, that information being irrelevant with regard to the question of 
whether the tax debt in question arises (judgment of 18 June 2009, Stadeco 
(C-5[6]6/07, EU:C:2009:380, paragraph 26 et seq.) That interpretation is also 
corroborated by the case-law of other Member States of the European Union (see, 
for example, the judgment of the Bundesfinanzhof (Federal Finance Court, 
Germany) of 17 February 2011, V R 39/09). 
23 In addition, a literal interpretation of Article 203 of the VAT Directive suggests 
that the condition which must be fulfilled in order for the obligation to arise is the 
existence of an invoice on which VAT is entered. Article 203 does not expressly 
mention compliance with all the formal requirements for invoices, as is stipulated 
in Article 178(a) of the VAT Directive for the exercise of the right of deduction in 
respect of the supply of goods or services by another taxable person. A 
teleological interpretation produces the same result: the fact that the obligation 
arises (simply) from the issue of an invoice that mentions VAT, in accordance 
with Article 203 of the VAT Directive, is responsive to the risk of loss of tax 
revenue which could arise from the use of such a document as the basis for the 
exercise of the right of deduction by another taxable person. It would run counter 
to the objective of that provision if the issuer of such an invoice could escape the 
obligation simply by omitting to set out in the invoice one of the prescribed items 
of information. Indeed, the risk of loss of tax revenue already arises from the fact 
that the document contains the essential elements of a VAT invoice, and thus 
suggests to the recipient that he may rely on the document in order to deduct the 
RAIFFEISEN LEASING 
 
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input VAT mentioned in it (as expressly held by the Bundesfinanzhof (Federal 
Finance Court, Germany) in its judgment of 17 February 2011, V R 39/09, 
paragraph 24). 
24 In order for the obligation to pay VAT to arise, on the basis that a particular 
person has issued an invoice, it does not therefore appear necessary that the 
invoice be expressly identified as such or that it contain all the information 
prescribed by the VAT Directive (for example, by Article 226 of the VAT 
Directive). 
25 It therefore appears that the interpretation according to which, in order for the 
obligation referred to in Article 203 of the VAT Directive to arise, it is sufficient 
if the document evidences an express and objectively identifiable intention on the 
part of the issuer to issue an invoice for a specific transaction, such that the 
addressee could reasonably assume that it had a right to deduct the input VAT 
paid on the basis thereof, is the correct interpretation. The items of information 
which would generally permit that are an indication of the issuer and addressee of 
the invoice, a description of the transaction and a statement of the value of the 
supply of goods or services such as to give the amount of VAT payable by the 
addressee (see, to that effect, the judgment of the Bundesfinanzhof (Federal 
Finance Court, Germany) of 19 November 2014, V R 29/14). Other facts and 
circumstances may come into play, and these must be assessed on a case-by-case 
basis. In particular, account could be taken of other documents to which the 
document in question (the invoice) refers or which might otherwise relate to it 
(see, to that effect, the case-law of the Bundesfinanzhof (Federal Finance Court, 
Germany), for example, the judgment of 26 June 2019, XI R 5/18, 
ECLI:DE:BFH:2019:U.260619.XlR5.18.0, paragraph 28).  
26 However, that interpretation calls, in the present case, for further clarification of 
the question of whether, and, if so, under what conditions, a written agreement 
between two contracting parties and relating to a transaction subject to VAT (such 
as a supply of goods or services) may be regarded as an invoice for the purposes 
of Article 203 of the VAT Directive. 
27 It is necessary, in this connection, to start from the premiss that an agreement, 
representing a binding arrangement, may differ from an invoice in that it may 
simply constitute the legal basis for the transaction which is subject to VAT, and 
that, pursuant to the agreement, the supplier of goods or services must, in 
accordance with the VAT Directive (and the ZDDV-1), issue an invoice at the 
time when the chargeable event occurs (see, for example, Article 63 of the VAT 
Directive). Equally, the essential items of information which permit a document to 
be characterised as an invoice may coincide with the essential items of 
information that must appear in an agreement for the supply of goods or services 
(essentialia negotii). The mere fact that an agreement identifies the contracting 
parties, defines the subject matter of the agreement and states the contract value of 
the supply of goods or services as well as the amount of VAT does not, therefore, 
mean, in and of itself, that the agreement will always constitute an invoice, within 
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the meaning of the VAT Directive and the ZDDV-1. Mentioning the amount of 
VAT in the agreement itself is in fact important in order to ensure the clarity of 
the contractual relationship and of the amount of the payment that is due, given 
that, if there is no specific indication of the obligation to pay a particular amount 
of VAT, it must, according to the case-law of the Slovenian courts, be deemed 
that VAT is included in the contract price stated. 
28 In light of the foregoing considerations, the Vrhovno sodišče (Supreme Court) is 
unsure whether an agreement may constitute an invoice for the purposes of 
Article 203 of the VAT Directive only if it evidences an express and objectively 
identifiable intention on the part of the seller or the provider of services, as a 
contracting party, to issue an invoice for a specific transaction, such that the 
purchaser could reasonably assume that it had a right to deduct the input VAT 
paid on the basis thereof. Such a conclusion might be drawn on the basis of an 
express contractual term stating clearly the same (for example, a term stating that 
the agreement serves as an invoice) or possibly also where the circumstances of 
the transaction and the characteristics of the agreement itself are such that there is 
clear evidence that the issue of an invoice, as a separate document, was not 
provided for under the agreement. Consequently, in light of the foregoing, the 
Vrhovno sodišče (Supreme Court) questions whether it is right to interpret 
Article 203 of the directive as meaning that it is only in the cases mentioned that 
an agreement may be regarded (also) as a VAT invoice giving rise to an obligation 
to pay VAT, pursuant to Article 203 of the VAT Directive (Article 76(1)(9) of the 
ZDDV-1). 
29 Since the answer to the question of whether the agreement at issue may be 
regarded as an invoice depends on the correct interpretation of Article 203 of the 
VAT Directive, the Vrhovno sodišče (Supreme Court), as the highest court in the 
Republic of Slovenia, is required to refer to the Court of Justice of the European 
Union a question on the interpretation of that directive.