Opinion of the Advocate General — ECLI:EU:C:2023:996
Date: 2023-12-14
Language of the case: Hungarian
Subject matter: Taxation;Value added tax;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-746/22 – 1 
Case C-746/22 
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: 
6 December 2022 
Referring court: 
Fővárosi Törvényszék (Budapest High Court, Hungary) 
Date of the decision to refer: 
18 November 2022 
Applicant: 
Slovenské Energetické Strojárne A. S. 
Defendant: 
Nemzeti Adó― és Vámhivatal Fellebbviteli Igazgatósága (Appeals 
Directorate of the National Tax and Customs Administration, 
Hungary) 
  
Subject matter of the main proceedings 
Administrative proceedings in a tax matter. 
Subject matter and legal basis of the request for a preliminary ruling 
First, to establish whether national legislation which, for the purposes of the 
examination of an application for a refund of value added tax (VAT), does not 
allow an applicant, at the appeal stage, to plead new facts or to adduce new 
evidence which it was aware of before the adoption of the first-tier decision but 
which it did not present, even though it was requested to do so by the tax 
authority, or which it did not adduce, creates a material constraint which exceeds 
the requirements laid down for appeals in Article 23(2) of Council Directive 
2008/9/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-746/22 
 
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Second to establish whether the period of one month indicated in Article 20(2) of 
Council Directive 2008/9/EC is mandatory and, if it is, whether that is compatible 
with the relevant EU principles and provisions. 
Third, to establish whether national legislation, pursuant to which the tax authority 
is to bring the proceedings to a close if the applicant taxable person does not 
respond to a request from the tax authority or comply with its obligation of 
rectification, failing which it is not possible to examine its application, is 
compatible with Article 23(1) of Council Directive 2008/9/EC. 
Legal basis: Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is Article 23(2) of Council Directive 2008/9/EC laying down detailed rules 
for the refund of value added tax, provided for in Directive 2006/112/EC, to 
taxable persons not established in the Member State of refund but 
established in another Member State (‘Directive 2008/9’) to be construed as 
meaning that national legislation – to be specific, Paragraph 124(3) of the az 
adóigazgatási rendtartásról szóló 2017. évi CLI. törvény (Law CLI of 2017 
governing tax administration; ‘the Law on tax administration’) – which, for 
the purposes of the examination of applications for a refund of value added 
tax pursuant to Council Directive 2006/112/EC on the common system of 
value added tax (‘the VAT Directive’), does not allow, at the appeal stage, 
new facts to be pleaded or new evidence to be relied on or produced, where 
the applicant was aware of that evidence before the adoption of the first-tier 
decision but did not present it, even though it was requested to do so by the 
tax authority, or did not rely on it, thereby creating a material constraint 
which exceeds the requirements as to form and time limits laid down by 
Directive 2008/9, is compatible with the requirements laid down in that 
Directive with regard to appeals? 
2. Does an affirmative answer to the first question mean that the one-month 
period indicated in Article 20(2) of Directive 2008/9 is to be considered 
mandatory? Is the foregoing compatible with the right to an effective 
remedy and to a fair trial enshrined in Article 47 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’), with 
Articles 167, 169, 170 and 171(1) of the VAT Directive, and with the 
fundamental principles of fiscal neutrality, effectiveness and proportionality 
developed by the Court of Justice of the European Union? 
3. Is Article 23(1) of Directive 2008/9, which relates to the refusal of a refund 
application in whole or in part, to be interpreted as meaning that national 
legislation – specifically, Paragraph 49(1) of the Law on tax administration – 
pursuant to which the tax authority is to bring the proceedings to a close if 
the applicant taxable person does not respond to a request from the tax 
authority or comply with its obligation of rectification, failing which it is not 
SLOVENSKÉ ENERGETICKÉ STROJÁRNE 
 
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possible to examine the application without the proceedings continuing ex 
officio, is compatible with that provision? 
Provisions of EU law relied on 
– Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391) 
(the Charter): Article 47 
– Council Directive 2006/112/EC of 28 November 2006 on the common system 
of value added tax (OJ 2006 L 347, p. 1; corrigenda in OJ 2007 L 335, p. 60, 
and OJ 2015 L 323, p. 31) (the VAT Directive): Articles 167, 169, 170 and 
171(1) 
– Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules 
for the refund of value added tax, provided for in Directive 2006/112/EC, to 
taxable persons not established in the Member State of refund but established 
in another Member State (OJ 2008 L 44, p. 23) (Directive 2008/9): Articles 1, 
20(1) and (2), 21, 23(1) and (2), 26, and 29(1) and (2) 
– Case-law of the Court of Justice: inter alia, judgments of 10 April 1984, von 
Colson and Kamann, 14/83, EU:C:1984:153, and of 2 May 2019, Sea Chefs 
Cruise Services, C-133/18, EU:C:2019:354 
Provisions of national law relied on 
– Az általános forgalmi adóról szóló 2007. évi CXXVII. törvény (Law CXXVII 
of 2007 on value added tax; ‘the VAT Law’): Paragraphs 251/C(2), 251/E(1) 
and (2), 251/F(1) to (4), 251/G(1) and (2), 251/H(1) and (2), and 251/I(1) and 
(4) 
– Az adóigazgatási rendtartásról szóló 2017. évi CLI. törvény (Law CLI of 2017 
governing tax administration) (Law on tax administration): Paragraphs 9, 
49(1)(b) and 124 
– A közigazgatási perrendtartásról szóló 2017. évi I. törvény (Law I of 2017 on 
administrative court procedure; ‘Law on administrative court procedure’): 
Paragraph 78(4) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a commercial company governed by Slovakian law which 
operates in the energy sector, manufacturing heating systems and selling those 
systems and their components; it also performs engineering services in relation to 
power stations. In June 2020, the applicant began to carry out installation and 
assembly works in Hungary under a contract concluded with the company 
Budapesti Erőmű Zrt. For that purpose, it purchased various goods and services in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-746/22 
 
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Hungary. In that connection, by letter of 18 February 2021, the applicant, in its 
capacity as a taxable person established in another Member State of the Union, 
specifically Slovakia, applied under Paragraph 244 of the VAT Law, on the basis 
of 19 invoices, for a refund of the amount of HUF 37 013 654 in respect of input 
tax paid on the purchase of goods and services in Hungary during the period 
1 January to 31 December 2020. 
2 By administrative act of 22 February 2021, the Nemzeti Adó― és Vámhivatal 
Kiemelt Adó― és Vámigazgatósága (Tax and Customs Directorate for Large 
Taxpayers of the National Tax and Customs Authority, Hungary; ‘the first-tier tax 
authority’), taking the view that it was unable to adopt a decision based on the 
information that it had at its disposal, requested the applicant to provide 
information pursuant to Paragraph 251/F(1) of the VAT Law. Inter alia, it 
requested the applicant to provide, within one month of notification of the 
administrative act, invoices, together with the contracts and orders on which those 
invoices were based, which had not been attached to the initial application but 
which were necessary in order to examine that application, and also to submit a 
statement declaring for what purpose and for whom it had purchased the services 
referred to in the invoices and what connection they had to its economic activity. 
The first-tier tax authority sent the administrative act to the applicant’s postal 
address and assumed that the applicant had received it. 
3 By decision of 6 May 2021, the first-tier tax authority, in accordance with 
Paragraph 49(1)(b) of the Law on tax administration, brought to a close the 
proceedings commenced as a result of the applicant’s application, stating that the 
applicant had failed to comply with its obligation to provide information, despite 
having been requested to do so, and that, as a consequence, it was not possible to 
establish the precise factual background using the information which that 
authority had at its disposal. 
4 The applicant appealed against the first-tier decision and, at the same time, 
complied with the first-tier tax authority’s request that it provide information, 
sending the documents requested in the administrative act. 
5 The defendant, which dealt with that appeal, confirmed the first-tier decision by 
decision of 20 July 2021. The defendant stated that the applicant had not 
responded to the request for rectification before the first-tier decision was notified 
to it, nor had it provided the requested documents on time, and therefore it had not 
been possible to determine whether the applicant was entitled to a tax refund. The 
defendant pointed out that Paragraph 124(3) of the Law on tax administration 
provides that ‘unless there is a ground for invalidity, it will not be possible, in the 
appeal and in the proceedings commenced as a result of the appeal, to plead new 
facts or rely on new evidence which the person with the right of appeal was aware 
of before the adoption of the first-tier decision while nevertheless failing to 
produce the evidence, despite having been requested to do so by the tax authority, 
or to state the facts’. In the administrative act requesting the provision of 
information, the first-tier tax authority advised the applicant about that prohibition 
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of new facts and evidence. In the light of this and having regard to 
Paragraph 124(3) of the Law on tax administration, the defendant found that, in 
the appeal proceedings, it was no longer possible for it to take into consideration 
the documents and information sent by the applicant. 
6 The applicant has appealed against the defendant’s decision to the Fővárosi 
Törvényszék (Budapest High Court, Hungary). 
The essential arguments of the parties in the main proceedings 
7 The applicant claims that Paragraph 124(3) of the Law on tax administration is 
not applicable to the procedure for a VAT refund. In its submission, Directive 
2008/9 exhaustively lays down substantive and procedural rules governing the 
VAT refund procedure and, therefore, Paragraph 124(3) of the Law on tax 
administration, in prohibiting the production of new evidence at the appeal stage 
and in the proceedings commenced as a result of the appeal (‘prohibition of new 
facts and evidence’) constitutes a material constraint. 
8 The applicant submits that Article 23(2) of Directive 2008/9, which lays down the 
right of appeal, provides that conditions as to form and time limits for appeals 
brought in VAT refund proceedings are governed by the measures adopted by the 
Member State of refund. In addition to that, Directive 2008/9 does not support any 
material constraint in respect of appeals either expressly or by means of a 
reference provision, such that it is not possible to apply as against the applicant 
the material constraint imposed by the Hungarian legislation, pursuant to which it 
is not possible in an appeal to plead new facts or to adduce new evidence which 
the applicant was aware of before the first-tier decision was adopted. 
9 The applicant argues that the non-mandatory character of the one-month 
rectification period is undermined by the restriction of the appeal laid down by the 
Hungarian legislation, since, after the adoption of the first-tier decision but before 
the adoption of the final decision, the refund applicant is unable to make known to 
the Hungarian tax authority, in such a way that the tax authority takes these into 
account, any new facts or circumstances or new evidence which, although they 
existed during the first-tier proceedings, were not presented by the applicant for 
any reason based on its own fault. On the other hand, Article 26 of Directive 
2008/9 and Paragraph 251/I(4) of the VAT Law provide only, as a legal 
consequence of failure to comply with the rectification period by the applicant, 
that, where the applicant fails to comply with a request for rectification on time, 
the applicant will not be entitled to claim the payment of interest on the amount to 
be refunded to it by the Member State of refund, even if the authorities are in 
arrears. 
10 The applicant further pleads that neither Article 20(2) of Directive 2008/9 nor the 
provision which transposes it into Hungarian law, Paragraph 251/F(4) of the VAT 
Law, describe the one-month period as mandatory, from which it follows that 
failure to comply with that period cannot lead to the definitive loss by the 
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applicant of its right to a refund of tax. In that connection, the applicant asserts 
that, following the expiry of that period, it continues to be entitled to provide, in 
the context of the appeal, the documents on which its application for a VAT 
refund is based and which the tax authority has stated are necessary. 
11 Lastly, the applicant claims that, in those circumstances, the defendant was not 
authorised to bring the proceedings to a close. 
12 The defendant argues that Paragraph 124(3) of the Law on tax administration is 
also applicable to the assessment of applications for a VAT refund. The defendant 
submits that that provision does not make it impossible in practice or excessively 
difficult to exercise the rights conferred by EU law, since it merely seeks to 
prevent the duration of appeal proceedings from being extended. 
13 In the defendant’s submission, the principles of equivalence and effectiveness 
have not been infringed. The defendant argues that, contrary to what the applicant 
maintains, the final part of the first-tier decision does not draw a distinction 
between the procedural and substantive rules on the bringing of an appeal but 
rather refers to the rules relating to the way in which an appeal is lodged and the 
limits on the right to appeal. In the light of all this, the defendant submits that the 
Hungarian legislation is compatible with EU law and with the legal principles 
developed by the Court of Justice and that, as a consequence, it does not breach 
the principles of fiscal neutrality and proportionality. 
14 The defendant maintains that the one-month period laid down in Article 20(2) of 
Directive 2008/9 for the provision of additional information is not mandatory 
since, in relation to non-compliance with that period, the applicant could have 
lodged an application for waiver of the preclusion. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 By the request for a preliminary ruling, the referring court asks the Court of 
Justice to determine whether the prohibition of new facts and evidence laid down 
in Paragraph 124(3) of the Law on tax administration is contrary to Article 23(2) 
of Directive 2008/9 and whether that prohibition breaches the principles 
established by EU case-law in connection with appeals, regard being had to the 
fact that EU law permits the submission of evidence at any time until the adoption 
of a final decision. 
16 The referring court also asks whether, in combination with the application of the 
prohibition of new facts and evidence laid down in Paragraph 124(3) of the Law 
on tax administration, the rectification period of one month acquires the status of 
mandatory, in so far as any statements, documents and other evidence which may 
be submitted additionally at the same time as the appeal are not taken into 
consideration by the Hungarian tax authority. 
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17 Lastly, the referring court asks for clarification of whether, in VAT refund 
proceedings, the tax authority is authorised to bring to a close the proceedings in 
the circumstances referred to. 
18 As regards the first question, the referring court states that, in the instant case, the 
applicant did not comply with the tax authority’s request that it provide 
information during the first-tier proceedings but, following notification of the 
first-tier decision, it attached the information and documents requested as an 
annex to the appeal which it lodged against that decision with the second-tier tax 
authority. However, the second-tier tax authority refused to take that information 
and those documents into consideration, relying in that connection on 
Paragraph 124(3) of the Law on tax administration. Nevertheless, as the referring 
court indicates, Directive 2008/9 does not provide that, where the one-month 
period indicated for delivery of the additional information requested by the 
Member State of refund is exceeded, it is possible to disregard the information 
submitted. That court adds that the provisions of Directive 2008/9 relating to 
appeals do not refer to the prohibition of new facts and evidence, as laid down in 
Paragraph 124(3) of the Law on tax administration, either. 
19 The referring court refers to Sea Chefs Cruise Services (Case C-133/18), stating 
that the only difference between the facts of that case and those of this case is that 
the Hungarian administrative procedure comprises two stages and, in Hungarian 
law, the prohibition of new facts and evidence laid down in Paragraph 124(3) of 
the Law on tax administration is already expressly applicable in the second-tier 
administrative proceedings. 
20 The referring court takes the view that, when it comes to examining VAT refund 
applications under the VAT Directive, it is necessary to respect the rights of 
applicants laid down in Directive 2008/9, the personal scope of which 
encompasses the applicant. 
21 In that respect, the referring court questions whether there should be a finding that 
the right to an effective remedy and to a fair trial, enshrined in Article 47 of the 
Charter, has been breached, because, in Hungarian law, as a result of the 
prohibition of new facts and evidence applicable in appeal proceedings, there is a 
limitation of the right to evidence and to produce evidence which is available to 
the parties to proceedings. As a result of the prohibition of new facts and 
evidence, there is no possibility of presenting new facts or evidence, which clearly 
has a bearing on the decision of the second-tier tax authority seised of the appeal 
proceedings and on the final outcome of any judicial proceedings brought as a 
result of the administrative appeal which may be lodged against that decision. 
22 In that connection, the referring court also considers it significant that 
Paragraph 78(4) of the Law on administrative court procedure, which governs 
administrative proceedings in Hungary, also lays down a provision pursuant to 
which ‘the applicant or person concerned may put forward facts or circumstances 
which, although they existed when the prior administrative proceedings were 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-746/22 
 
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conducted, were not examined in those proceedings, in the event that the 
administrative body did not take those facts or circumstances into account in the 
prior administrative proceedings even though they were put forward and in the 
event that the applicant or person concerned was not aware of those facts, through 
no fault of their own, or was unable to plead those facts or circumstances, through 
no fault of their own’. In other words, the prohibition of new facts and evidence 
also applies to administrative proceedings. 
23 In that regard, the referring court also asks whether the prohibition of new facts 
and evidence is proportionate and compatible with the conditions which guarantee 
a fair trial, bearing in mind that it may lead to a material limitation of the right of 
appeal which is available to taxpayers as a fundamental guarantee of the right to 
bring proceedings. 
24 In relation to the second question, the referring court also refers to the judgment 
of the Court of Justice in Sea Chefs Cruise Services (C-133/18), the subject matter 
of which was identical to that of the second question referred for a preliminary 
ruling in the present case. 
25 The referring court explains that the compatibility of Paragraph 124(3) of the Law 
on tax administration with Directive 2008/9 is in doubt in so far as the application 
of that national provision in the VAT refund procedure may have the effect of 
making the one-month period mandatory at the time when the decision of the first-
tier tax authority is adopted, since, once that decision has been adopted, no 
evidence which the applicant, even though it was aware of it, has not brought to 
the attention of the tax authority by that time, through its own fault, may be 
produced. 
26 As regards the third question, the referring court observes that Directive 2008/9 
provides merely for the adoption of a decision approving or refusing the refund 
application, without legislating for the possibility of bringing the procedure to a 
close. The referring court adds that the VAT Law, which transposes that 
Directive, does not provide for the possibility of bringing the procedure to a close 
either. Under Paragraph 251/C(2) of the VAT Law, where an application has been 
lodged on time, the tax authority will decide on the merits of the application. In 
other words, both Directive 2008/9 and the VAT Law require the adoption of a 
decision on the merits. 
27 Contrary to that, the Hungarian tax authority applied in the instant case the rule on 
closure of the procedure laid down in Paragraph 49(1)(b) of the Law on tax 
administration, which has led the referring court to raise the question of whether 
the provision of Directive 2008/9 which requires the adoption of a decision 
approving or refusing the VAT refund application precludes, in relation to VAT 
refunds, the adoption by the national authority of a decision to bring the procedure 
to a close.