Opinion of the Advocate General — ECLI:EU:C:2016:13
Date: 2016-01-14
Language of the case: Italian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Second Chamber), 7 April 2016 1. Questions referred for a preliminary ruling — Reference to the Court — Appropriate stage of the proceedings for the reference — Determination by the national court (Art. 267 TFEU) 2. Harmonisation of fiscal legislation — Common system of value added tax — Obligations on the Member States to ensure collection of all the value added tax — Insolvency — National procedure for an arrangement with creditors — Partial payment of value added tax debts — Lawfulness — Conditions (Article 4(3) TEU; Council Directive 2006/112, Arts 2, 250(1) and 273) 1. The Court has jurisdiction to hear a request for a preliminary ruling, although it has been made by the national court at the non-contentious stage of examining the admissibility of the application before it, which seeks to open a procedure for an arrangement with creditors, which is intended, if it is admissible, to result in a judicial decision, adopted in the presence of the public prosecutor, after the court has ruled on any oppositions brought by the minority creditors. National courts may refer a question to the Court if there is a case pending before them and if they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature and the choice of the most appropriate time to refer a question for a preliminary ruling lies within their exclusive jurisdiction. (see paras 16, 17) 2. Article 4(3) TEU and Articles 2, 250(1) and 273 of Directive 2006/112 on the common system of value added tax do not preclude national legislation, interpreted as meaning that an insolvent trader may apply to a court to open a procedure for an arrangement with creditors for the purpose of settling its debts by liquidating its assets, in which that trader offers only partial payment of a value added tax (VAT) debt and establishes by an independent expert’s report that that debt would not be repaid more fully in the event of that trader’s bankruptcy. The admission of a partial payment of a VAT claim by an insolvent trader in the context of an arrangement with creditors, which does not constitute a general and indiscriminate waiver of collecting VAT, is not contrary to the obligation on Member States to ensure collection of all of the VAT due on their territory as well as the effective collection of the European Union’s own resources. (see paras 28, 29, operative part)