Opinion of the Advocate General — ECLI:EU:C:2019:708
Date: 2019-09-11
Language of the case: Hungarian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Hungary

Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 January 2018 — Sole-Mizo Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Case C-13/18) Language of the case: Hungarian Referring court Szegedi Közigazgatási és Munkaügyi Bíróság Parties to the main proceedings Applicant: Sole-Mizo Zrt. Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága Questions referred Is a practice of a Member State pursuant to which, when the relevant default-interest provisions are examined, it is proceeded on the basis that the national tax authority has not committed an infringement (failure to act) ― that is, it has not delayed payment as regards the non-recoverable part of the value added tax (‘VAT’) … on the taxable persons’ unpaid purchases ― because when the national tax authority adopted its decision, the national legislation infringing Community law was in force and it was not until later that the Court of Justice declared that the requirement laid down in that legislation did not comply with Community law, consistent with the provisions of Community law, with the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’) 1 (having regard in particular to Article 183 thereof), and with the principles of effectiveness, direct effect and equivalence? Is a practice of a Member State which, when the relevant default-interest provisions are examined, distinguishes between whether the national tax authority failed to refund the tax in compliance with the national provisions then in force ― which, moreover, infringed Community law ― or whether it failed to do so in breach of such provisions and which, as regards the amount of the interest accrued on the VAT whose refund could not be claimed within a reasonable period due to a national-law requirement declared contrary to EU law by the Court of Justice, sets out two definable periods, with the result that, in the first period, taxable persons only have the right to receive default interest at the central bank base rate, in view of the fact that since the Hungarian legislation contrary to Community law was still then in force, the Hungarian tax authorities did not act unlawfully by not authorising the payment within a reasonable period of the VAT included in the invoices, whereas in the second period interest double the central bank base rate ― applicable moreover in the event of delay in the legal system of the Member State in question ― must be paid only for the late payment of the default interest corresponding to the first period consistent with Community law, in particular with the provisions of the VAT Directive (having regard in particular to Article 183 thereof), and with the principles of equivalence, effectiveness and proportionality? Must Article 183 of the VAT Directive be interpreted as meaning that the principle of equivalence precludes a practice of a Member State pursuant to which, on the VAT not returned, the tax authority only pays interest at the central bank base (simple) rate if EU law has been infringed, whereas it pays interest equivalent to double the central bank base rate if there has been an infringement of national law? ____________ 1 OJ 2006 L 347, p. 1.