Opinion of the Advocate General — ECLI:EU:C:1998:56
Date: 1998-02-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of valne
added tax — Tax refunds for taxpayers not established in the country concerned — Obliga­
tions of the taxpayer — Submission of original invoices or import documents — Possibility for
Member States to allow submission of duplicate invoices or import documents where original
lost for reasons beyond the control of the taxpayer — Whether permissible — Conditions
(Council Directive 79/1072, Art. 3(a))
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SUMMARY — CASE C-361/96
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value
added tax — Tax refunds for taxpayers not established in the country concerned — Docu­
ments to be produced in order to obtain a refund — Principle of non-discrimination — Obli­
gation of Member States to allow taxpayers, regardless of the place where they are established,
to use means of proof which only taxpayers established in the country concerned are permitted
to rely on
(EC Treaty, Art. 6; Council Directive 79/1072)
1. Article 3(a) of the Eighth Directive
79/1072 on the harmonisation 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
— is to be interpreted as not precluding
Member States from providing in their
national law that a taxable person who is
not established in that Member State may
prove his entitlement to a refund by sub­
mitting a duplicate invoice or import
document where the original has been
lost for reasons beyond his control, pro­
vided that the transaction which led to
the application for a refund occurred and
there is no risk of further applications for
a refund.
Secondary law must comply with the
general principles of law, and in particular
the principle of proportionality. Exclu­
sion of the possibility for a Member State
to allow an application for a refund in
such exceptional circumstances is not
necessary to achieve the general aim of
the Eighth Directive, which is to prevent
fraud or tax evasion.
2. Where a taxable person established in a
Member State may prove his entitlement
to a refund of value added tax by submit­
ting a duplicate or photocopy of the
invoice if the original which he received
has been lost for reasons beyond his con­
trol, the principle of non-discrimination
set out in Article 6 of the Treaty and
referred to in the fifth recital in the pre­
amble to the Eighth Directive 79/1072
requires that the same possibility be
extended to taxable persons not estab­
lished in that Member State if the transac­
tion which led to the application for a
refund occurred and there is no risk of
further applications for a refund.
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