Opinion of the Advocate General — ECLI:EU:C:2024:612
Date: 2024-07-11
Language of the case: Bulgarian
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-369/23 – 1 
Case C-369/23 
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: 
9 June 2023 
Referring court: 
Varhoven administrativen sad (Bulgaria) 
Date of the decision to refer: 
9 June 2023 
Applicant and appellant in cassation: 
‘Vivacom Bulgaria’ EAD 
Defendants and respondents in cassation: 
Varhoven administrativen sad 
Natsionalna agentsia za prihodite 
  
Subject matter of the main proceedings 
Action against the Varhoven administrativen sad (Supreme Administrative Court, 
Bulgaria; ‘the VAS’) for damages in the amount of the VAT paid 
Subject matter and legal basis of the request 
Compatibility with EU law of national rules on jurisdiction over actions for 
damages against the VAS 
Article 267 TFEU 
Question referred for a preliminary ruling 
Do the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of 
Fundamental Rights of the European Union preclude national legislation such as 
EN 
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Article 2c(1)(1) of the ZODOV, read in conjunction with Article 203(3) and 
Article 128(1)(6) of the APK, under which an action for compensation for damage 
caused by an infringement of EU law by the VAS, in which the VAS is the 
defendant, must be examined by that court at last instance? 
Provisions of European Union law and case-law relied on 
Article 4(3) TEU, the second subparagraph of Article 19(1) TEU, Article 47 of the 
Charter of Fundamental Rights of the European Union (‘the Charter’) 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, in particular Article 14(1), Article 24, and Article 56(1)(b) 
Judgment of 3 May 2012, Lebara, C-520/10 P, EU:C:2012:264 (‘the judgment in 
Lebara’) 
Provisions of national law relied on 
Administrativnoprotsesualen kodeks (Bulgarian Code of Administrative 
Procedure; ‘the APK’): Article 1(3), Article 128(1)(6), Article 203 
Zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on Liability of 
the State and of Municipalities for Damage; ‘the ZODOV’): Article 2c 
Zakon za danaka varhu dobavenata stoynost (Bulgarian Law on Value Added 
Tax; ‘the ZDDS’): Articles 12(1) and 21(1) and (3) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The main proceedings are based on an appeal in cassation brought by ‘Balgarska 
telekomunikatsionna kompania’ EAD – Sofia (‘BTK’) (now ‘Vivacom Bulgaria’ 
EAD) against judgment no 2565/18 April 2022 of the Administrativen Sad – Sofia 
grad (Administrative Court, Sofia City, Bulgaria; ‘the ASSG’), which dismissed 
the action brought by BTK against the VAS and the Natsionalna agentsia za 
prihodite (National Revenue Agency; ‘the NAP’) based on Article 2c of the 
ZODOV, read in conjunction with Article 4(3) TEU. In the action, BTK claimed 
damages in the amount of the VAT debts that had been paid in response to tax 
assessment notice no 2900-1200127/20 June 2012 issued by the NAP and upheld 
by judgments of the ASSG and the VAS. The applicant claimed damages in the 
amount of the sums paid pursuant to the tax assessment notice (VAT in the 
amount of 760 183.15 Bulgarian leva [BGN] and interest in the amount of 
BGN 347 278.15), lost profits and statutory interest on those sums. 
Procedure for issuing and challenging the tax assessment notice 
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2 The facts relating to the previous procedure for issuing and challenging the tax 
assessment notice have been established by the ASSG in the main proceedings as 
follows. 
3 ‘BTK Моbile’ ЕООD, whose legal successor is BTK, issued invoices in 2007–
2008 to Alex Invest Cornert s.r.l. and Danina Comert s.r.l. (‘Alex Invest’ and 
‘Danina’ respectively), companies registered in Romania, on the basis of contracts 
for the sale of prepaid cards and vouchers for telecommunications services, 
showing VAT at 0%. 
4 In the course of a tax audit, it was established that the provision to the 
representatives of the Romanian companies and the physical receipt of the cards 
and vouchers by them had not been proved, with the result that the subject of the 
supplies were services which, however, did not come within the scope of 
Article 21(3)(2)(h) of the ZDDS, but had as their place of supply the place where 
the supplier carried out its independent economic activity, namely Bulgaria, 
meaning that the place of supply was determined according to the general rule of 
Article 21(1) of the ZDDS. 
5 The NAP therefore issued tax assessment notice no 2900-1200127/20 June 2012 
to BTK, establishing additional VAT liabilities totalling BGN 760 183.15 against 
BTK. After that notice was issued, BTK paid the amount to the tax authorities 
together with the interest due. Administrative and judicial actions were lodged 
against the notice. 
6 In the administrative review proceedings, the tax assessment notice was upheld on 
the grounds that the recipients of the services were not taxable persons established 
in another Member State, as there was no evidence of the provision of the cards to 
the Romanian companies. The conditions of Article 21(3) of the ZDDS, under 
which the supply of services may be considered exempt, were therefore not 
considered to have been satisfied. 
7 The judicial action brought before the ASSG was dismissed in part. According to 
that court, although the items supplied were described in the invoices as prepaid 
cards and vouchers for telecommunications services, a supply of goods had been 
agreed since the cards were moveable property – goods enabling the future use of 
those services. The goods had been supplied in commercial quantities for the 
purposes of subsequent resale, and BTK had not provided services to the 
Romanian companies but would have potentially provided them to the final 
consumers. Thus, the rules on the place of supply of goods were applicable. The 
cards and vouchers had not left BTK’s warehouse, where they had been deposited 
by the Romanian companies for safekeeping, or had been handed over to the 
Romanian companies with receipt and handover records in that warehouse by 
BTK on Bulgarian territory, so that Article 17(1) of the ZDDS was applicable, 
according to which the place of supply of goods not dispatched or transported is 
the place where the goods are located at the time of transfer of ownership or actual 
handover. Accordingly, that place was located on Bulgarian territory and BTK 
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was liable to pay the VAT in question. The ASSG therefore dismissed the action 
in part. 
8 By judgment no 15282/16 December 2014, the VAS upheld the judgment at first 
instance. It fully agreed with the ASSG’s conclusion that the supply was not of 
services but of goods. BTK could not rely on the judgment of the Court of Justice 
of the European Union of 9 October 2014 in Case C-492/13, Traum, 
ECLI:EU:C:2014:2267, ‘in so far as, in the present case, it has been established 
that the cards purchased were handed over to the Romanian companies in a 
warehouse of “BTK Mobile” EOOD located on domestic territory and that the 
cards did not leave BTK’s warehouse as they had been deposited for safekeeping’. 
The VAS did not comment on the judgment in Lebara. Against that background, 
the VAS held that Article 17(1) of the ZDDS, according to which the place of 
supply of goods is the place where the goods are located at the time of transfer of 
ownership or actual delivery, was applicable and had been correctly applied. In 
those proceedings, the VAS ruled as the court of last instance and its judgment is 
final (hereinafter, the proceedings in which the tax assessment notice was issued 
and the judicial proceedings challenging that notice are referred to as ‘the tax 
dispute’). 
Proceedings at first instance on the claim for compensation for damage 
9 The action in the present case dismissed by the court of first instance (ASSG) was 
brought on 12 December 2019. BTK claimed that the NAP and the VAS had 
infringed Article 2(1)(a) and (c), Article 14(1), Article 24 and Article 56(1)(i) of 
Directive 2006/112 in the version in force between December 2007 and June 
2008, as interpreted by the Court of Justice in the judgment in Lebara. 
10 According to the applicant’s submissions in that action, in the tax dispute the NAP 
and the VAS had misapplied the abovementioned EU law provisions on 
telecommunications services as interpreted by the Court of Justice in the judgment 
in Lebara. According to that judgment, supplies of prepaid cards and vouchers 
constitute supplies of telecommunications services. Article 2(1)(a) and (c), 
Article 14(1), Article 24 and Article 56(1)(i) of Directive 2006/112, which had 
been infringed, give telecommunications operators, such as BTK, the right to treat 
supplies of prepaid cards and vouchers to distributors established in another 
Member State as supplies of telecommunications services whose place of supply 
is in that other Member State. The breach of EU law was sufficiently serious 
given that the relevant case-law of the Court of Justice had clearly been 
disregarded. The NAP, the ASSG and the VAS had been aware of the judgment in 
Lebara at the time the tax assessment notice had been issued as the applicant had 
repeatedly referred to it in the proceedings. That judgment was based on similar 
facts and was binding on the defendants. If the VAS had had doubts about the 
applicability of the judgment in Lebara to the facts on which the challenge to the 
tax assessment notice was based, it should have asked the Court of Justice for a 
preliminary ruling. 
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11 In contrast, the NAP had stated in the tax assessment notice that the supplies of 
prepaid cards and vouchers were supplies of services, but the recipient of the 
supplies had not been determined by the contractual relationship with the 
Romanian companies but by the other circumstances of the supplies, that is to say, 
where the prepaid cards and vouchers had been handed over, whether they had 
been transported to Romania and whether they could be used for calls from 
Romania. According to the applicant, those circumstances were irrelevant for 
determining the place of supply of the telecommunications services. 
12 The VAS, ruling on the tax dispute at last instance, had taken the view that, since 
the cards and vouchers sold were in commercial quantities, they were supplies of 
goods that had not been taken out of Bulgaria. Thus, it had been incorrectly 
determined that the place of supply was in Bulgaria and not in Romania, where 
the recipients were established, and accordingly, the VAT debts established had 
been upheld. 
13 In the court proceedings at first instance, the ASSG found as follows: 
14 The action was correctly directed against the NAP and the VAS as both 
institutions are obliged to apply EU law correctly. Moreover, the VAS is a legal 
person with jurisdiction to hear actions for infringements of EU law committed in 
the exercise of its judicial functions and, in the present case, it is the court of last 
instance for the legal dispute. 
15 With regard to the conditions for triggering liability of courts for damage resulting 
from an infringement of EU law, the ASSG stated that it was not permissible to 
rule again on the merits of a legal dispute that had been concluded with a final and 
binding decision of the defendant court. Rather, it was necessary to examine 
whether the legal provisions relevant to the legal dispute had been correctly 
applied to the established facts of the case. 
16 As regards the requirement that the provisions of EU law that have been infringed 
confer rights on individuals, the ASSG stated that the provisions relied on by the 
applicant determined the scope of the tax and the place of supply of 
telecommunications services and, in the present case, conferred on the applicant 
the right to treat the supplies as supplies to a taxable person established in another 
Member State without charging VAT on them. 
17 As regards the requirement of a sufficiently serious breach of EU law, the ASSG 
found that the NAP had correctly classified the supplies as supplies of services, 
but had taken the view that Article 21(3)(1) and Article 21(2)(h) of the ZDDS 
were inapplicable as the requirement that the recipients carry out their economic 
activity in another Member State was not met. With regard to the conclusions of 
the NAP, the ASSG stated that in the case of a supply in respect of which it is 
provided that no VAT is to be charged on the ground that the recipient is a taxable 
person established in the territory of another Member State, it is necessary to 
verify whether the supply has actually been made to that same taxable person and 
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whether it is actually established in the territory of the other Member State. 
Especially since it had not been proved that the prepaid cards had been received 
by taxable persons established in another Member State, the tax authorities had 
taken the view that the conditions for treating the supplies as such, where the 
place of supply is abroad, had not been proved, and consequently had not 
committed a serious breach of EU law, in particular with regard to one of the 
recognised and promoted objectives of Directive 2006/112, namely to combat tax 
evasion, tax avoidance and possible abuse. 
18 With regard to the defendant VAS, the ASSG stated, with reference to the 
requirement of a sufficiently serious breach of EU law, that the conclusion of the 
VAS that the supplies were supplies of goods and not of services had been 
incorrect as it contradicted Articles 14 and 24 of Directive 2006/112 and their 
interpretation in the judgment in Lebara. However, the correct legal treatment of 
the supplies in question would not have led to a different result than the challenge 
to the tax assessment notice did since one of the conditions for the supplier’s 
exemption from VAT liability had not been satisfied on the invoices, namely 
proof that the recipients of the supplies were taxable persons established in 
another Member State. Since the breach of EU law did not change the ultimate 
outcome of the legal dispute, it could not be regarded as serious and had no causal 
connection with the damage suffered by the applicant as the VAT and the 
corresponding interest were due under the final tax assessment notice, the issuance 
of which did not infringe EU law. 
19 The ASSG found that the present case and the case examined in the judgment in 
Lebara were not the same, as the supplies in question, although similar in 
substance, also showed significant differences. Thus, the supplies to the Romanian 
companies were not treated as two supplies (to the distributors and to the final 
consumers), but only as one supply – to the distributors. The description of the 
facts in the judgment in Lebara showed that in that case neither the status of the 
recipients as taxable persons established in another Member State nor the actual 
handover of the cards had been at issue. In the case examined by the Bulgarian 
courts, no distribution network had been established on Romanian territory, nor 
had any prepaid cards been offered to consumers in Romania. In the present case, 
the VAS had ruled out that the two cases were identical because the requirement 
that the place of supply be in Romania and not in Bulgaria had not been met and 
had therefore ultimately come to the correct legal conclusion that there was no 
basis for applying the interpretation arrived at in the judgment in Lebara. 
20 The court ruling at first instance found that the third condition for triggering 
liability on the part of the defendants – the existence of a direct causal link 
between the breach of EU law and the damage – did not have to be examined, in 
so far as the second condition of a sufficiently serious breach of EU law was not 
satisfied. 
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The essential arguments of the parties in the main proceedings 
21 The appellant in cassation BTK requests that the decision of the ASSG be set 
aside for being erroneous on the grounds that it infringes substantive law, 
substantially infringes procedural rules, and fails to state reasons. BTK claims that 
the ASSG itself infringed EU law and the case-law of the Court of Justice with 
regard to various aspects of the legal dispute. 
22 In particular, based on the facts and the elements of liability for VAT regarded as 
established in the tax dispute, the court of first instance should have examined 
whether the conditions for State liability were satisfied, not by re-examining the 
legal dispute on the merits given that that had been concluded by the judgment 
which had become final and binding, but by examining whether the relevant 
provisions of EU law had been correctly applied in that legal dispute and whether 
their non-application or misapplication had a direct causal link with the damage 
suffered by the applicant. 
23 The court of first instance found that there had been an infringement of a 
provision of EU law conferring rights on individuals. However, the other 
conclusions were incorrect since the breach of EU law resulting from the 
classification of the services at issue as goods and not as services in the judgment 
of the VAS was also clearly established by the Commission’s infringement 
proceedings against Bulgaria No EU Pilot 8498/1/TAXU. The breach was 
sufficiently serious as the relevant case-law of the Court of Justice had evidently 
been disregarded as stated in the case-law of the Court of Justice (C-224/01, 
C-446/04, C-429/09 and C-168/15). The criteria set out in paragraph 43 of the 
judgment of the Court of Justice in case C-173/03, Traghetti del Mediterraneo, 
ECLI:EU:C:2006:391, were also fulfilled. The judgment in Lebara is clear with 
regard to the classification of the phonecards as telecommunications services, but 
was not discussed in the judgment of the VAS although it was referred to in the 
appeal in cassation. Moreover, the interpretation in the judgment in Lebara is 
abstract since the judgment lacks the qualification that it applies only to facts such 
as those in the main proceedings. 
24 The appellant in cassation also challenges the findings of the court of first instance 
that the facts in the Lebara case do not correspond to the facts in the BTK case. 
According to the appellant in cassation, BTK is a duly authorised 
telecommunications operator, has the infrastructure for the provision of the 
services in question and a roaming contract for Romanian national territory, 
meaning that the case involves the supply of prepaid cards for telecommunications 
services to distributors established in another Member State. In another case, 
which involved a challenge to a tax assessment notice stating that BTK was liable 
to pay tax on supplies of phonecards to Danina in other tax periods, the VAS ruled 
the opposite way, holding that no VAT was due on those supplies in Bulgaria. 
However, it would not have been necessary to find the cases identical, as the VAS 
should have made a request for a preliminary ruling in case of doubt as to whether 
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the case-law of the Court of Justice was applicable in the specific case. Otherwise, 
it was bound by the previous interpretation of the Court of Justice. 
25 The appellant in cassation also challenges the findings of fact regarding the 
handover of the phonecards at BTK’s warehouse, claiming that that is an 
established fact and that that supply had been incorrectly described by the VAS as 
a supply of goods. The court of first instance should therefore have assessed the 
conditions of non-contractual liability on the basis of the findings of fact in the 
proceedings on the challenge of the tax assessment notice, instead of drawing 
fresh conclusions about the grounds for charging VAT on the supplies to the 
Romanian companies, which differed from the conclusions of the NAP in the tax 
assessment notice, by finding that the tax assessment notice should have been 
upheld on other grounds. 
26 The appellant in cassation asks the VAS to request a preliminary ruling from the 
Court of Justice. The appellant submits that the VAS was a party and already 
expressed its view in the proceedings at first instance that the claims against it 
were inadmissible and/or unfounded. In the present appeal in cassation 
proceedings, the VAS holds the position of a party directly affected by the 
outcome of the dispute and that of a court of last instance. This gives rise to 
doubts as to whether that position is compatible with the second subparagraph of 
Article 19(1) TEU and Article 47 of the Charter. The situation where the VAS, as 
the court of last instance, examines an appeal against a judgment dismissing an 
action for compensation for damage caused by the VAS’s breach of EU law does 
not meet the requirement of a fair hearing by an independent and impartial 
tribunal, even if the chamber examining the appeal in cassation is different from 
the one which made the final decision on the tax dispute. The simultaneous role as 
party to the dispute and as court of last instance in the dispute, and the view of the 
VAS already expressed at first instance, give rise to particularly reasonable doubts 
as to the impartiality of each of its chambers. The appellant in cassation also asks 
the Court of Justice for an interpretation as to whether, in the present case, the 
classification of the supplies as supplies of goods and not of services constitutes a 
sufficiently serious breach of EU law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
27 The present chamber is of the view that the question of the jurisdiction of the VAS 
should be referred to the Court of Justice in the light of the considerations set out 
below, before the matters of the criteria, nature and scope of the test for the 
assessment as regards liability for damage arising from a sufficiently serious 
breach of EU law is examined in the present case. 
28 The provisions of national law applicable in the main proceedings have a 
connection with the provisions of EU law. The main proceedings are based on an 
action for compensation for damage arising from a sufficiently serious breach of 
EU VAT law allegedly committed by the NAP and the VAS. The appellant in 
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cassation relies on the right under Article 47(2) of the Charter to have its case 
decided by an independent and impartial tribunal. In examining whether there has 
been a sufficiently serious breach of EU law, the referring court must examine the 
application of EU law and the case-law of the Court of Justice in the field of VAT 
to the tax dispute. 
29 Article 2c of the ZODOV governs the procedure for dealing with that type of 
claim against the State. In the case of damage arising from the exercise of the 
judicial functions of administrative courts and the VAS and damage caused in the 
course of or on the occasion of administrative activity, where the party to the 
dispute is an administrative court, the VAS or a legal person, those proceedings 
are subject to the APK. Pursuant to Article 128(1)(6) of the APK, actions for 
compensation for damage arising from unlawful acts of administrative bodies and 
officials and for damage arising from the exercise of the judicial functions of the 
administrative courts and the VAS are within the jurisdiction of the administrative 
courts. According to the general rule of Article 131 of the APK, judicial 
proceedings under that code may be heard before two instances. The VAS is the 
court of last instance in those proceedings. That is why the actions brought on that 
basis against the VAS must be examined by the VAS in the last instance. 
30 The question before the referring court is whether those national provisions meet 
the requirements of the second subparagraph of Article 19(1) TEU for effective 
legal protection in the fields covered by Union law and of Article 47(2) of the 
Charter for an independent and impartial tribunal. 
31 On the one hand, it is a choice made by the national legislature that takes into 
account the specifics of the administrative activity and the specialisation of case-
law in administrative disputes. 
32 On the other hand, the appellant in cassation does not provide any specific 
evidence on the existence of circumstances that raise questions as to the subjective 
or objective impartiality of the VAS chamber, the relevant criteria having been 
identified in the case-law of the Court of Justice. It deduces that the VAS is biased 
given its capacity as defendant and its statements on the admissibility and merits 
of the application in the first instance proceedings. In its view, the mere fact that 
the action against the VAS is being heard at last instance before the same court, 
albeit before a completely different chamber, is sufficient to give rise to serious 
doubts as to the impartiality and independence of each chamber of that court. 
33 The case-law of the European Court of Human Rights (‘the ECtHR’) on the 
application of Article 6(1) of the European Convention for the Protection of 
Human Rights and Fundamental Freedoms (‘the ECHR’) in proceedings against 
Bulgaria does not provide a definitive answer to the question of whether a 
particular court may consider a claim in which it is a defendant. 
34 In the judgment of 10 April 2008 in Mihalkov v. Bulgaria (application no 
67719/01), ECLI:CE:ECHR:2008:0410JUD006771901, §§ 47-51, referred to by 
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the appellant in cassation, the ECtHR held that it was a violation of Article 6(1) of 
the ECHR for a court to consider an action for compensation for damage arising 
from an unlawful conviction which it had itself pronounced. The ECtHR ruled 
that, even if there are no doubts as to the personal impartiality of the judges 
participating in the proceedings, their professional ties to one of the parties to the 
dispute alone can give rise to legitimate doubts on the part of the applicant as to 
their objective impartiality and their independence from the other party to the 
dispute. 
35 In its judgment of 5 April 2018 in Gospodinov v. Bulgaria (application no 
28417/2007), ECLI:CE:ECHR:2018:0405JUD002841707, §§ 55-56, the ECtHR 
found that there was a violation of Article 6(1) of the ECHR. The judgment was 
delivered in connection with a case in which a criminal chamber of a regional 
court had heard a second criminal case against a person who, at the same time, 
was pursuing a claim for damages against the same court for breaches in the first 
criminal case concerning the duration of detention. The ECtHR ruled that the 
judges’ professional connection with one of the parties to the concurrently running 
civil proceedings, combined with the detrimental effect on the compensation 
proceedings of the criminal proceedings against the applicant, could, on its own, 
have prompted legitimate misgivings in the applicant as regards the judges’ 
objective impartiality. 
36 In both cases, the ECtHR noted that under the budgetary rules relevant to the 
present case, any compensation awarded to the applicant in the event of the 
success of his action for damages would have been paid from the budget of the 
court and, even though it had not been established that that fact had in any way 
influenced the individual situation of the court’s judges, it might legitimately have 
intensified the applicant’s doubts. 
37 The ECtHR expressed the opposite view in the judgment of 18 June 2013 in 
Valcheva and Аbrashev v. Bulgaria (application nos 6194/11 and 34887/11), 
ECLI:CE:ECHR:2013:0618DEC000619411, § 100, and in the judgment of 
18 June 2013, Balakchiev and Others v. Bulgaria (application no 65187/10), 
ECLI:CE:ECHR:2013:0618DEC006518710, § 61. In those judgments the ECtHR 
noted that a situation where the claim is directed against the court dealing with it 
is by definition rare. It referred to its earlier case-law (Mihalkov v. Bulgaria), in 
which it had expressed misgivings about the objective impartiality of the courts 
hearing such claims. However, given that the sums to be paid out as compensation 
(in that case for a violation of the right to examination and determination of the 
case within a reasonable time pursuant to Article 6(1) of the ECHR) would come 
from a distinct line item in the budget of each court, the ECtHR was satisfied that 
that factor would not call into question the impartiality of the courts hearing such 
claims or the effectiveness of the remedy. 
38 The budgetary rules currently in force are the same as those described in the two 
judgments referred to in the preceding paragraph. Although each court pays 
damages out of its own budget, that budget distinguishes between items for 
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remuneration, for the maintenance of the court and for compensation for damage 
arising from the court’s activities, with the result that the judges’ remuneration or 
their working conditions do not depend on the damages that the court might owe. 
If there are insufficient funds in the court’s budget for damages, the Vissh sadeben 
savet (Supreme Council of the Judiciary) will, at the court’s request, increase that 
court’s budget and make the necessary funds available in its account. 
39 This requires that a preliminary question be referred to the Court of Justice on the 
compatibility of the national rules on jurisdiction over actions for damages 
brought against the VAS on the basis of Article 2c of the ZODOV in conjunction 
with Article 4(3) TEU, the second subparagraph of Article 19(1) TEU and 
Article 47(2) of the Charter.