Judgment;Summary — ECLI:EU:C:2020:403
Date: 2020-05-28
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-684/18 — 1 
Case C-684/18 
Request for a preliminary ruling  
Date lodged: 
6 November 2018 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
26 September 2018 
Appellant: 
World Comm Trading Gfz S.R.L. 
Respondents: 
Agenția Națională de Administrare Fiscală (ANAF) 
Direcția Generală Regională a Finanțelor Publice Ploiești 
      
... 
CURTEA DE APEL BUCUREȘTI 
SECȚIA A VIII-A CONTENCIOS ADMINISTRATIV ȘI FISCAL (The 
Court of Appeal, Bucharest, Section VIII for administrative and fiscal 
matters) 
DECISION 
Public Hearing of 26 September 2018 
[…] 
1. There is registered on the roll the appeal lodged by the appellant WORLD 
COMM TRADING GFZ S.R.L. against the respondents AGENȚIA 
NAȚIONALĂ DE ADMINISTRARE FISCALĂ (National Tax 
Administration Office) and DIRECȚIA GENERALĂ REGIONALĂ A 
FINANȚELOR PUBLICE PLOIEȘTI (Regional Directorate for Public 
Finances, Ploieşti) against the civil judgment [...] delivered by the Tribunalul 
EN 
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București — Secția a II-a Contencios administrativ și fiscal (Regional Court, 
Bucharest — Section II for administrative and fiscal matters) [...] concerning 
the appeal against a fiscal administrative act — decisions no 342/30.10.2014 
and no F-AG 815/30.05.2014. 
2. [...] [procedure] 
THE CURTEA, 
Giving a decision in the present case, finds as follows: 
I. Subject matter of the dispute and relevant facts 
3. On 1 April 2004, World Comm Trading Gfz S.R.L. (for the sake of brevity, 
hereinafter referred to as ‘World Comm’) entered into a standard distribution 
agreement with the Nokia group. Under that agreement World Comm purchased 
from the Nokia group a series a mobile telephony products, which were supplied 
to the appellant from Finland, Germany, Hungary and Romania. 
4. In so far as VAT is concerned, in respect of the sales from Finland, Germany and 
Hungary (which were treated as intra-Community acquisitions of goods), Nokia 
used its Finnish VAT number (FI01120389), its German VAT number or its 
Hungarian VAT number, as appropriate. In respect of supplies from Romania, it 
used its Romanian VAT number (RO23277168), since it was a taxable person 
registered for VAT purposes in Romania (hereinafter also referred to as ‘Nokia 
Romania’). Thus, Nokia identified itself using tax numbers issued by European 
Union authorities, where appropriate, and also by the Romanian authorities, 
despite the fact that it was a single entity defined in the framework agreement as 
‘NOKIA Corporation’. 
5. For the intra-Community supplies of goods, for example, Nokia issued VAT-
exempt invoices using its Finnish VAT number (FI01120389), and World Comm 
recorded VAT in Romania using the ‘reverse charge procedure’. (The same 
procedure was followed in the [Or. 2] case of intra-Community acquisitions from 
other Member States of the European Union (Germany and Hungary, for example) 
For supplies of goods from Romania, Nokia issued VAT invoices bearing its own 
Romanian VAT number (RO23277168) and World Comm recorded the 
deductible VAT. 
6. Under the contractual relationship mentioned above, Nokia granted World Comm 
each quarter various bonuses relating to the sale of the goods. Nokia granted these 
discounts globally, by reference to a volume threshold, calculated without 
reference to the place from which the Nokia goods were supplied (Romania or 
intra-Community). 
WORLD COMM TRADING GFZ 
 
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7. For these discounts, Nokia Corporation issued each quarter a single invoice with a 
minus sign and its Finnish VAT number (FI01120389), and World Comm 
recorded the corresponding VAT by applying the reverse charge mechanism. The 
appellant recorded the entire amount as relating to an intra-Community 
transaction, even though some of the products had been sold from Romania, 
accompanied by tax invoices bearing Nokia’s Romanian VAT number 
(RO23277168). 
8. Between 1 April 2014 and 27 May 2014, World Comm was the subject of a tax 
inspection based on sampling, following which the respondent Direcția Generală 
Regională a Finanțelor Publice Ploiești issued tax assessment notice no F-AG 
815/30.05.2014. By that fiscal act, additional payment obligations were imposed 
on the appellant in a total amount of RON 821 377, comprising VAT of RON 
576 045, late payment interest of RON 158 925 and late payment penalties of 
RON 86 407. 
9. The tax authorities asserted that World Comm had wrongly recorded an 
adjustment of the right to deduct for all of the discount received (both for the 
intra-Community acquisitions and for the domestic purchases), recording under a 
single accounting item: deductible VAT = VAT collected. 
10. The tax authorities had taken the view that World Comm should have 
distinguished between domestic and intra-Community supplies, and consequently 
they did not recognise its right to deduct the VAT. They considered that the 
appellant had wrongly reduced the VAT collected by the sum of RON 576 045, 
recording that with a minus sign, instead of recording a reduction in the obligation 
to the supplier. 
11. By decision no 342/30.10.2014 issued by the respondent Agenția Națională de 
Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (the 
National Tax Administration Office — Directorate-General for Dispute 
Resolution; for the sake of brevity, hereinafter referred to as ‘ANAF’) the 
appellant World Comm’s appeal against the tax assessment notice was dismissed 
as unfounded. 
12. By application lodged at the Tribunalul București — Secția de contencios 
administrativ și fiscal, on 9 March 2015, the applicant World Comm brought 
proceedings against the defendants Agenția Națională de Administrare Fiscală and 
Direcția Generală Regională a Finanțelor Publice Ploiești, seeking the annulment 
of decision no 342/30.10.2014 and tax assessment notice no F-AG 
815/30.05.2014. 
13. By civil judgment no 6360/05.10.2015 delivered by the Tribunalul București — 
Secția a II-a Contencios administrativ și fiscal, the applicant World Comm’s claim 
was dismissed as unfounded. 
In essence, the court of first instance held that the tax authorities had been right to 
find that the present appellant should have registered the VAT relating to the 
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discount received under item 4426= 4427 with the minus sign for the intra-
Community acquisitions, whereas, for the domestic purchases, it should have 
registered the VAT relating to the discount under item 4426= 401, with the minus 
sign. It therefore took the view that, for the sum of RON 73 751 339 relating to 
domestic purchases, the discount invoices issued by Nokia and bearing its Finnish 
VAT number could not constitute supporting documents for the adjustment of the 
taxable amount relating to the domestic purchases. 
14. World Comm brought the present appeal against that judgment, arguing that it has 
been wrongly denied the right to deduct the VAT. [Or. 3] 
15. The complainant claims that the adjustment and the right to deduct the related 
VAT were dependent on the invoices issued by the supplier. Nokia had regard to 
the agreement between the parties and consequently had not considered it 
necessary to apply any method to allocate the discounts according to the intra-
Community or domestic origin of the products supplied. 
16. In essence, the complainant has asserted that excessive formalism has been 
applied and that the State budget has not been affected by the way in which the 
contracting parties have recorded their own accounts. On the other hand, it has 
asserted that the application of the law in the manner adopted by the tax authority 
would irremediably affect its tax position, in terms of the principle of VAT 
neutrality, because, at the time of the tax inspection, Nokia had ceased its activity 
in Romania, it being apparent from the information published on the website of 
the Ministerul Finanțelor Publice (Ministry of Public Finances) that it was 
removed from the register on 1 November 2014, with the result that it was no 
longer possible for it to invoice separately the discounts for domestic supplies. 
II. Relevant law 
II.1 EU law 
17. Article 73 of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax (OJ 2006 L 347, p. 1) provides that, ‘in 
respect of the supply of goods or services, other than as referred to in Articles 74 
to 77, the taxable amount shall include everything which constitutes consideration 
obtained or to be obtained by the supplier, in return for the supply, from the 
customer or a third party, including subsidies directly linked to the price of the 
supply’. 
18. Article 79 of Directive 2006/112 provides that the following are not included in 
the taxable amount: (a) price reductions by way of discount for early payment; (b) 
price discounts and rebates granted to the customer and obtained by him at the 
time of the supply; (c) amounts received by a taxable person from the customer, as 
repayment of expenditure incurred in the name and on behalf of the customer, and 
entered in his books in a suspense account. 
WORLD COMM TRADING GFZ 
 
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19. Article 90 of Directive 2006/112 establishes that, ‘in the case of cancellation, 
refusal or total or partial non-payment, or where the price is reduced after the 
supply takes place, the taxable amount shall be reduced accordingly under 
conditions which shall be determined by the Member States’. 
20. Article 83 of Directive 2006/112 provides: ‘In respect of the intra-Community 
acquisition of goods, the taxable amount shall be established on the basis of the 
same factors as are used in accordance with Chapter 1 to determine the taxable 
amount for the supply of the same goods within the territory of the Member State 
concerned. …’ 
21. Article 273 of Directive 2006/112 reads as follows: 
‘Member States may impose other obligations which they deem necessary to 
ensure the correct collection of VAT and to prevent evasion, subject to the 
requirement of equal treatment as between domestic transactions and transactions 
carried out between Member States by taxable persons and provided that such 
obligations do not, in trade between Member States, give rise to formalities 
connected with the crossing of frontiers. 
The option under the first paragraph may not be relied upon in order to impose 
additional invoicing obligations over and above those laid down in Chapter 3.’ 
II.2 National law 
II.2.1 The Tax Code 
22. The applicable Romanian legislation is Legea nr. 571/2003 din [22 decembrie 
2003] privind Codul fiscal (Law No 571/2003 of 22 December 2003 establishing 
the Tax Code, ‘the Tax Code’) (M. Of. nr. 927 din data de 23 decembrie 2003 
(Official Journal No 927 of 23 December 2003)), which transposes the provisions 
of Directive 2006/112 relating to value added tax. 
23. Under Article 137(1)(a) of the Tax Code ‘the taxable amount for VAT purposes 
consists of … everything which constitutes the consideration paid or to be paid 
[Or. 4] to the supplier by the customer, the beneficiary or a third party, including 
subsidies directly linked to the price of the supply’. 
24. Next, Article 138(c) of the Tax Code states that: ‘the taxable amount shall be 
reduced ... where discounts, rebates or other price reductions referred to in 
Article 137(3)(a) are granted after the supply of the goods or the provision of the 
services’. 
25. Article 1381(1), entitled ‘Taxable amount in the case of intra-Community 
acquisitions’, in the version in force at the time of the transactions, provides: 
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‘(1) In the case of the intra-Community acquisition of goods, the taxable amount 
shall be established on the basis of the same elements as those used in accordance 
with Article 137 to determine the taxable amount for the supply of the same goods 
within the territory of the country. In the case of the intra-Community acquisition 
of goods pursuant to Article 1301(2)(a), the taxable amount shall be determined in 
accordance with Article 137(1)(c) and Article 137(2).’ 
26. The provisions of the Tax Code, in the version in force at the time of the 
transactions and also at the time when the contested administrative fiscal acts were 
issued, which set out the conditions under which a taxable person must issue an 
invoice to itself, did not also govern the situation in the present case in so far as 
concerns the adjustment of the taxable amount. 
The entitlement of a beneficiary to issue an invoice to itself for the purposes of 
adjusting the taxable amount and the deductible tax, in the event that the supplier 
does not issue a correction invoice (discount), was introduced with the entry into 
force of the new Tax Code, Law No 227/2015, published in Official Journal no 
688 of 10 September 2015. In the explanatory memorandum published with the 
draft of the new Tax Code, at letter G, point 12, the need to introduce this 
amendment was explained as follows: ‘In situations which give rise to the 
adjustment of the taxable amount for VAT purposes, such as the cancellation of 
the contract, a price reduction, refusal, return, etc., if the supplier does not issue 
the invoice, the current legislation does not provide for the obligation for the 
beneficiary to issue an invoice to itself in order to adjust the deductible tax.’ 
II.2.2 The Rules for Implementation of the Tax Code — H. G. no 44/2004 
27. By way of explanation of Article 137(3)(a), mentioned above, paragraph 19(1) of 
the Normele metodologice de aplicare a Codului fiscal (Rules for Implementation 
of the Tax Code) approved by Hotărârea Guvernului no. 44/2004 (Government 
Decree No 44/2003), published in Official Journal no 112 of 6 February 2004, as 
amended and supplemented, in force in December 2008, [states as follows]: 
‘For the purposes of Article 137(3)(a) of the Tax Code, discounts, rebates and 
other price reductions are not included in the taxable amount if they are granted 
directly by the supplier to the customer at the time of the supply and do not, as a 
matter of fact, constitute consideration for a service or supply. To that end, the 
invoice issued shall state the value of the goods supplied or the services provided, 
net of tax, and, on a separate line, the amount by which the taxable amount is 
reduced, which shall be deducted. Value added tax shall apply to the remainder.’ 
28. Paragraph 20(1) and (2) of Hotărârea Guvernului no. 44/2004 states as follows: 
‘(1) In the cases provided for in Article 138 of the Tax Code, suppliers of goods 
and service providers are to adjust the taxable amount after the supply, or after 
invoicing the supply even if the supply has not been effected, but the events 
referred to in Article 138 of the Tax Code then occur after invoicing and the 
WORLD COMM TRADING GFZ 
 
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recording of the tax in the accounting records of the taxable person. To 
accommodate this, suppliers and service providers must issue invoices stating the 
amount preceded by the minus sign if the taxable amount is reduced or, as 
necessary, without the minus sign, if the taxable amount is increased, and shall 
send such invoices to the beneficiary. The provisions of this paragraph also apply 
to intra-Community supplies. 
(2) Beneficiaries are required to adjust the right to deduct initially exercised, in 
accordance with Article 148(b) and Article 149(4)(e) of the Tax Code, only in the 
case of the transactions [Or. 5] referred to in Article 138(a) to (c) and (e) of the 
Tax Code. The provisions of this paragraph also apply to intra-Community 
acquisitions.’ 
29. Paragraph 21 of the abovementioned implementing rules states as follows: 
‘For the purposes of Article 138 of the Tax Code, the taxable amount of intra-
Community acquisitions is equal to the taxable amount of intra-Community 
supplies — made in another Member State, which includes the elements referred 
to in Article 137(2) of the Tax Code and does not include the elements referred to 
in Article 137(3) of the Tax Code, and/or, as the case may be, shall be adjusted in 
accordance with Article 138 of the Tax Code ...’ 
III. The reasons for the national court’s request for a preliminary ruling  
III.1 The parties’ views on the question of law to be referred to the Court of 
Justice 
30. The appellant, World Comm, asserts, in essence, that the principle of VAT 
neutrality is a guiding principle of the whole matter, both at national level and at 
European level, and it presupposes that a taxable person is able to deduct in full 
VAT on the goods and services acquired in the exercise of its taxable activities 
(see, to that effect, judgment of 6 March 2008, Nordania Finans and BG 
Factoring, C-98/07, EU:C:2008:144, paragraph 19). 
In support of its position, the appellant refers to paragraphs 23 to 25 of the 
judgment of the Court of Justice of the European Union in Case C–324/11, Toth, 
and to the case-law of the Court in Cases C-408/98, Abbey National, 
paragraph 24, C-l37/02, Faxworld, paragraph 37, C-25/03, HE, paragraph 70, 
C-439/04 and C-440/04, Kittel, paragraph 48, C-488/07, Royal Bank of Scotland, 
paragraph 15, and to the judgment of the Court of 13 December 2012, Forposta 
(C-465/11, EU:C:2012:801). 
31. The respondent Agenția Națională de Administrare Fiscală submits that there is no 
need to refer a question to the Court of Justice for a preliminary ruling. It points 
out that Article 90(1) of Council Directive 2006/112 was transposed into national 
law by Article 138 of the Tax Code. It also observes that the ability to reduce the 
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taxable amount by issuing invoices to oneself was governed by national 
legislation (Article 1551 of the Tax Code) and Article 222 of Directive 2006/112. 
III.2 The first question 
32. First of all, it should be noted that the request for a preliminary reference to the 
Court of Justice was made by the appellant World Comm. The Curtea de Apel 
(Court of Appeal) has reformulated the first two questions proposed by the 
appellant so that they fit the need for interpretation of the applicable EU law in the 
present case. 
33. The Curtea de Apel has also had regard to the settled case-law of the Court of 
Justice according to which it is solely for the national court before which the 
dispute has been brought, and which must assume responsibility for the 
subsequent judicial decision, to determine in the light of the particular 
circumstances of the case both the need for a preliminary ruling in order to enable 
it to deliver judgment and the relevance of the questions which it submits to the 
Court (judgment in Eon Asset Menidjmunt, C-118/11, EU:C:2012:97, 
paragraph 76). 
34. The Curtea de Apel points out that, according to settled case-law, the right of 
taxable persons to deduct the VAT due or already paid on goods purchased and 
services received as inputs from the VAT which they are liable to pay is a 
fundamental principle of the common system of VAT established by the relevant 
European Union legislation (see, in particular, the judgments of 25 October 2001, 
Commission v Italy, C-78/00, EU:C:2001:579, paragraph 28, [Or. 6] of 10 July 
2008, Sosnowska, C-25/07, EU:C:2008:395, paragraph 14, and of 28 July 2012, 
Commission v Hungary, C-274/10, EU:C:2011:530, paragraph 42). 
35. In the present case, the Curtea de Apel București (the Bucharest Court of Appeal) 
raises the question whether a company for which the substantive conditions for the 
deduction of VAT in accordance with the provisions of Directive 2006/112 have 
not been denied, but for which the formal requirements for the recording of that 
deduction in its accounts and in its VAT declaration have not been recognised, 
may be denied the right to adjust its right to deduct resulting from bonuses granted 
by its supplier as a result of the fact that the national rules or administrative 
practice relevant to its application partially precluded the deduction of the VAT in 
the event that the supplier had issued a global invoice covering both domestic and 
intra-Community goods supplied by the same economic operator. 
36. Article 90 of Directive 2006/112 provides that the taxable amount is reduced 
accordingly ‘under conditions which shall be determined by the Member States’. 
Consequently, interpretation of that phrase, in conjunction with the principle of 
VAT neutrality, gives rise to the question of the compatibility with Article 90 of 
national legislation (or of an administrative practice based on unclear legislation) 
which makes it difficult or even impossible to deduct the VAT where the tax 
invoice issued by the intra-Community supplier (as representative of an economic 
WORLD COMM TRADING GFZ 
 
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group, such as, in the present case, NOKIA Corporation) shows the global 
discount granted for both intra-Community and domestic products supplied under 
the same framework agreement but recorded as purchased from the Member State 
of reference (from one member of the group, with a different VAT number from 
that borne by the invoice relating to the discount, in this case, NOKIA Romania). 
The condition imposed by the national authorities was that the beneficiary of the 
discount should present separate tax invoices according to the domestic or intra-
Community origin of the purchased goods, the global discount invoice issued with 
the VAT code associated with the intra-Community supplies not being accepted 
for the transactions recorded as purchases in Romania, even though both relate to 
the same framework contract. 
37. […] [the text of the first question, set out in the operative part] 
III.3 The second question 
38. The court also notes that, at the time when the taxpayer’s appeal in the domestic-
law administrative appeal system was definitively decided, the supplier NOKIA 
had ceased its activity in Romania (cancelling its registration as a taxable person 
in Romania with the VAT number RO23277168). Thus, the question arises as to 
whether, in the specific circumstances of the case at hand, the beneficiary of the 
bonus may be denied the right to deduct, given that the supplier can no longer 
reduce the taxable amount of the supplies and thus require the State to reimburse 
the excess VAT collected. 
39. In such circumstances, the question arises as to whether the principle of 
proportionality precludes the beneficiary from being denied the right to deduct 
VAT in proportion to the value of the discount granted by the supplier in the case 
where the supplier has ceased its economic activity in Romania (cancelling its 
registration as a taxable person with the VAT number RO23277168) and can no 
longer [Or. 7] reduce the taxable amount of the supplies for the purpose of 
reimbursement of the excess VAT collected. 
40. In this connection, in so far as concerns the need for the present request for a 
preliminary ruling, the respondent ANAF points out that the appellant did have 
the option of issuing an invoice to itself in accordance with Article 1551 of the 
Tax Code, but that option was expressly introduced in the national legislation with 
the entry in force of the new Tax Code, Law No 227/2015, published in Official 
Journal no 688 of 10 September 2015 (see paragraph 26 above). 
The question arises as to whether Article 90 of Directive 2006/112, which leaves 
it to the discretion of the Member States to lay down the specific conditions under 
which the taxable amount is reduced, requires the Member States to adopt clear 
and foreseeable legislation in terms of formal and substantive conditions, in the 
absence of which the right of a diligent and prudent taxable person, such as the 
appellant World Comm may be presumed to be, cannot reasonably be denied on 
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the ground that there was available to it a remedy in a legal provision that was 
applicable by analogy or as a result of broad interpretation (not on the basis of an 
administrative practice or consistent case-law) in order to obtain the result sought 
(in casu, the self-invoicing procedure prior to the adoption of the new Tax Code). 
41. … [the text of the second question, set out in the operative part] 
IV. Conclusions and procedural measures 
42. The Curtea considers that its decision on the annulment of administrative fiscal 
acts by which the appellant was refused the right to deduct VAT is dependent on 
the interpretation which the Court of Justice may give to the legal issues 
mentioned above. 
43. With regard to the need to bring the matter before the Court of Justice, in addition 
to the condition relating to the relevance of the question referred to the resolution 
of the legal issues necessary for the resolution of the case, the Curtea points out, 
first of all, that the provision of EU law to which the question referred for a 
preliminary ruling refers has not yet been the subject of interpretation, and 
therefore this court is not relieved of the obligation to make a reference (see, to 
that effect, judgment of 27 March 1963, Da Costa, 28/62 to 30/62, 
[EU:C:1963:6], at p. 38). 
44. Secondly, the Curtea takes the view that the correct application of EU law in the 
case at hand is not so obvious as to leave no scope for any reasonable doubt and 
thus to permit it to refrain from referring to the Court of Justice the question 
concerning the interpretation of EU law that has been raised before it (judgment of 
15 September 2005, Intermodal Transports, C-495/03, EU:C:2005:552, 
paragraph 37 and the case-law cited) and to assume responsibility for resolving it 
(judgment of 6 October 1982, CILFIT and Others, 283/81, EU:C:1982:335, 
paragraph 16). Consequently, the doctrine of acte clair does not apply to this case. 
45. Thirdly, the judgment that will be given in this dispute will be a final judgment 
within the domestic appeals system, with the result that, under the third paragraph 
of Article 267 of the Treaty on the Functioning of the European Union, the Curtea 
is obliged to bring the matter before the Court of Justice for the interpretation of 
the EU law applicable in these proceedings. 
46. ... [procedure, stay of the national proceedings] [Or. 8] 
[THE CURTEA DE APEL BUCUREŞTI] 
ON THOSE GROUNDS, 
IN ACCORDANCE WITH THE LAW, 
RULES AS FOLLOWS 
WORLD COMM TRADING GFZ 
 
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[The Curtea] partially upholds the application for a request to be made to the 
Court of Justice of the European Union for a preliminary ruling. 
Pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
refers to the Court of Justice of the European Union the following questions for a 
preliminary ruling: 
1. Do Article 90 of Council Directive 2006/112/EC of 28 November 2006 on 
the common system of value added tax and the principle of VAT neutrality 
preclude national legislation (or an administrative practice based on unclear 
legislation) which denies an undertaking the right to deduct VAT in 
proportion to the value of a discount applied to national supplies of goods on 
the ground that the tax invoice issued by the intra-Community supplier (as 
representative of an economic group) shows the global discount granted for 
both intra-Community and domestic products supplied under the same 
framework agreement but recorded as purchased from the Member State of 
reference (from one member of the group, with a different VAT number 
from that borne by the invoice relating to the discount)? 
2. In the event that the first question is answered in the negative, does the 
principle of proportionality mean that the beneficiary cannot be denied the 
right to deduct VAT in proportion to the value of the discount granted 
globally by the intra-Community supplier in the case where the local supplier 
(a member of the same group) has ceased its economic activity and can no 
longer reduce the taxable amount of the supplies by issuing an invoice 
bearing its own VAT number, for the purpose of reimbursement of the excess 
VAT collected? 
[…]