Opinion of the Advocate General — ECLI:EU:C:2021:326
Date: 2021-04-22
Language of the case: Romanian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-80/20 - 1 
Case C-80/20 
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: 
12 February 2020 
Referring court: 
Tribunalul București (Regional Court, Bucharest, Romania) 
Date of the decision to refer: 
19 December 2019 
Applicant: 
Wilo Salmson France SAS 
Defendant: 
Agenția Națională de Administrare Fiscală — Direcția Generală 
Regională a Finanțelor Publice București 
Agenția Națională de Administrare Fiscală — Direcția Generală 
Regională a Finanțelor Publice București — Administrația Fiscală 
pentru Contribuabili Nerezidenți 
  
Subject matter of the main proceedings 
Administrative law action whereby Wilo Salmson France SAS asks the Tribunalul 
București (Regional Court, Bucharest, Romania) to annul the defendants’ 
decisions rejecting the application for a refund of the value added tax (VAT) 
relating to purchases made in 2012, in respect of which the supplier issued 
invoices in 2015 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation is sought, pursuant to Article 267 TFEU, of Articles 167 and 178 of 
Directive 2006/112/EC and the first sentence of Article 14(1)(a) of Directive 
2008/9/EC. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-80/20 
 
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Questions referred 
1. As regards the interpretation of Article 167 of Directive 2006/112/EC, read 
in conjunction with Article 178 thereof, is there a distinction between the 
moment the right of deduction arises and the moment it is exercised with 
regard to the way in which the system of VAT operates? 
To that end, it is necessary to clarify whether the right to deduct VAT may be 
exercised where no (valid) tax invoice has been issued for purchases of goods. 
2. As regards the interpretation of Articles 167 and 178 of Directive 
2006/112/EC, read in conjunction with the first sentence of 
Article 14(1)(a) of Directive 2008/9/EC, what is the procedural point of 
reference for determining the lawfulness of the exercise of the right to a 
refund of VAT? 
To that end, it is necessary to clarify whether an application for a refund may be 
made in respect of VAT which became chargeable prior to the ‘refund period’ but 
which was invoiced during the refund period. 
3. As regards the interpretation of the first sentence of Article 14(1)(a) of 
Directive 2008/9/EC, read in conjunction with Article 167 and 
Article 178 of Directive 2006/112/EC, what are the effects of the 
annulment of invoices and the issuing of new invoices in respect of 
purchases of goods made before the ‘refund period’ on the exercise of the 
right to a refund of the VAT relating to those purchases? 
To that end, it is necessary to clarify whether, in the event of the annulment, by 
the supplier, of the invoices initially issued for the purchase of goods and the 
issuing of new invoices by that supplier at a later date, the exercise of the right of 
the recipient to apply for a refund of the VAT relating to the purchases is to be 
linked to the date of the new invoices, in a situation where the annulment of the 
initial invoices and the issuing of the new invoices is not within the recipient’s 
control but is exclusively at the supplier’s discretion. 
4. May national legislation make the refund of VAT granted under [Directive 
2008/9/EC] conditional upon the chargeability of the VAT in a situation where a 
corrected invoice is issued during the application period? 
Provisions of EU law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Articles 62 and 167, Article 168(a), Article 169(a) and 
Article 178(a) 
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 
WILO SALMSON FRANCE 
 
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persons not established in the Member State of refund but established in another 
Member State, Article 2(1) and (3), first paragraph of Article 6, Article 7 and 
Article 14(1)(a) 
Opinion of the Advocate General in Volkswagen (C-533/16), points 57 to 59 
Opinion of the Advocate General in Biosafe — Indústria de Reciclagens (C-8/17), 
point 56 
Provisions of national law relied on 
Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 laying down the Tax 
Code), Article 145, which governs the right of taxable persons to deduct the VAT 
relating to purchases, Article 146, which provides that, in order to exercise that 
right, the taxable person must be in possession of an invoice, and 
Article 147^2(1)(a), which provides that a taxable person who is not established in 
Romania but is established in another Member State, and who is not registered for 
VAT purposes and is not required to register itself for such purposes in Romania, 
may receive a refund of the VAT paid in respect of imports and purchases of 
goods or services in Romania 
Hotărârea Guvernului nr. 44/2004 privind Normele metodologice de aplicare a 
Codului fiscal (Governmental Decree No 44/2004 laying down detailed rules for 
implementing the Tax Code), which provides, in paragraph 15 of point 49 thereof, 
that the refund application is to cover ‘purchases of goods or services invoiced 
during the refund period, paid until the date of the refund application. Invoices 
which have not been paid until the date of the refund application shall be included 
in the refund applications relating to the period in which they were paid’, and, in 
paragraph 16 of that point, that, ‘in addition to the transactions referred to in 
paragraph 15, the refund application may also cover invoices or import 
documents not covered by previous refund applications and relating to 
transactions completed during the calendar year in question’ 
Succinct presentation of the facts and the main proceedings 
1 Pompas Salmson SAS, a company with the seat of its economic activity in France, 
concluded a contract with ZES Zollner Electronic SRL, a company established 
and registered for VAT purposes in Romania, for the purchase of manufacturing 
equipment, delivered within Romania, which was made available to the supplier 
by means of a contract for the supply of equipment, for the purposes of using that 
equipment in the process of manufacturing goods that were subsequently 
delivered to Pompas Salmson. 
2 The goods produced by Zollner Electronic making use of that equipment were 
delivered from Romania to France, to the seat of Pompas Salmson, which used 
them for its own taxable activities. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-80/20 
 
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3 The supplier Zollner Electronic issued invoices in 2012 in respect of the purchases 
of manufacturing equipment made by Pompas Salmson. 
4 Pompas Salmson, a company neither established nor registered for VAT purposes 
in Romania, applied for a refund of the VAT paid in Romania pursuant to 
Directive 2008/9/EC and Article 147^2(1)(a) of Law No 571/2003 laying down 
the Tax Code, read in conjunction with point 49 of Governmental Decree 
No 44/2004. 
5 By decision of 14 January 2014, the Romanian tax authorities rejected the refund 
application relating to the period running from 1 January 2012 to 31 December 
2012 in respect of a sum of RON 449 538.38 on grounds connected with the 
documentation accompanying the application and the non-compliance of the 
attached invoices. 
6 Having been informed of that decision, the supplier Zollner Electronic cancelled 
the invoices initially issued (in 2012) and issued new invoices relating to the 
purchases (albeit not until 2015). 
7 In 2014 Pompas Salmson SAS carried out a merger by absorption with Wilo 
France SAS, thereby becoming the applicant company Wilo Salmson France SAS, 
which assumed all the rights and obligations of Pompas Salmson. 
8 In November 2015 the applicant submitted an application for a refund of the VAT 
paid in Romania on the basis of the new invoices issued by Zollner Electronic in 
the period running from 1 August 2015 to 31 October 2015. 
9 The tax authorities rejected the application for a refund of VAT as unfounded, 
stating that the applicant had not complied with the provisions of paragraph 16 of 
point 49 of Governmental Decree No 44/2004 and that it had already applied for a 
refund from the invoices of items 1 to 6 in the list of transactions. 
10 The applicant brought a tax complaint against that refund decision on 13 June 
2016, which the Direcția Generală Regională a Finanțelor Publice București — 
Administrația Fiscală pentru Contribuabili Nerezidenți (Regional Directorate-
General for Public Finance, Bucharest — Tax Administration for Non-Resident 
Taxpayers) rejected as unfounded, considering that the VAT in respect of which 
the refund was sought had already been the subject of another refund application 
and that the transactions in respect of which a VAT refund was sought related to 
2012 and not 2015. 
11 The applicant brought an administrative law action against those decisions of the 
tax authorities before the Tribunalul București. 
WILO SALMSON FRANCE 
 
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The essential arguments of the parties to the main proceedings 
12 The applicant considers that satisfaction of the substantive conditions of the right 
to deduct requires an analysis of the moment at which that right arises and the 
scope of that right, which arises at the moment the tax becomes chargeable or, 
more specifically, in its case, at the moment of delivery of the purchased goods. 
13 From a procedural point of view however, in order to exercise that right it is 
obliged to be in possession of an invoice which satisfies the conditions laid down 
by law. 
14 In addition, the period for exercising the right to deduct cannot be determined 
exclusively depending on the moment of delivery of the purchased goods, because 
this constitutes only the fulfilment of the substantive condition for asserting that 
right and not the fulfilment of the procedural condition, that is, the possession of a 
valid invoice. 
15 The applicant argues that the provisions applicable in this area take into 
consideration the usual situation, in which the supply of goods and valid invoicing 
take place simultaneously. Accordingly, in view of the fact that those moments are 
simultaneous, it is logical that the VAT becomes chargeable and the possibility of 
exercising the right to a refund of that VAT arises at the same time. 
16 From a procedural standpoint, the moment at which the refund application may be 
made, according to Directive 2008/9, is the moment at which the invoice is issued, 
which, in the present case, took place in 2015. The chargeability of the VAT 
constitutes a substantive reference point, it being necessary for the VAT to have 
become chargeable (exclusively from the point of view of exercising the right to 
apply for a refund) either before the issuing of the invoice or at the moment of 
invoicing. 
Succinct presentation of the reasons for the reference 
17 The referring court notes that the central element of the case before it is the 
possibility of a refund of the VAT relating to purchases made in 2012 but in 
respect of which valid purchase tax invoices were not issued until 2015. 
18 It describes the factual situation before it as atypical from the point of view of 
Directives 2006/112 and 2008/9, in a situation where: (i) the supplier issued 
invoices in respect of the purchases made by the applicant, which invoices were 
subsequently annulled; (ii) invoices were issued in respect of those same 
purchases which were valid only for 2015; (iii) the applicant exercised its right to 
a refund of VAT by means of the 2015 refund application which included the 
invoices issued in 2015; and (iv) the applicant has still not received a refund of the 
VAT. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-80/20 
 
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19 Accordingly, given that Directive 2006/112 does not expressly govern the period 
for exercising the right to deduct, the issue arises as to whether the date on which 
that period starts to run can be established exclusively depending on the moment 
when the delivery of the goods took place, without taking any other relevant 
circumstances into account. 
20 Although Article 167 of Directive 2006/112 provides that the right to deduct 
arises at the moment when the tax becomes chargeable, Article 178 of that 
directive provides that the exercise of that right becomes possible only from the 
moment when the taxable person comes into possession of an invoice in which the 
delivery of the goods is entered. 
21 Accordingly, the possession of a valid invoice is essential for the exercise of the 
right to deduct/the right to a refund, and yet the issuing of that invoice is at the 
supplier’s discretion and is at no time within the control of the holder of the right 
to deduct, who is also the recipient of the delivery. 
22 Consequently, if the Court were to decide that, in the light of the first sentence of 
Article 14(1)(a) of Directive 2008/9, refund applications may concern purchases 
of goods or services that were invoiced during the refund period, regardless of 
whether or not the related VAT became chargeable before or during that period, 
then it would be possible to challenge the tax authorities’ position. The referring 
court considers that the Opinions delivered in Volkswagen (C-533/16) and 
Biosafe — Indústria de Reciclagens (C-8/17) are also relevant in that regard. 
23 With regard to Questions 1 and 2, the referring court notes that the tax authorities 
have not distinguished between the date of the issuing of the invoice, as the 
procedural aspect, and the date on which the VAT became chargeable, as the 
substantive aspect. However, it seems that the EU legislature wishes those two 
moments to produce distinct effects from a tax point of view. 
24 With regard to Questions 3 and 4, the referring court notes that the tax authorities 
considered that the invoices issued in 2015 in respect of the purchases made in 
2012 could not be the subject of a refund application for 2015, inasmuch as there 
had been previous invoices that had then been cancelled by the supplier. However, 
because the cancellation of the 2012 invoices was done unilaterally by the 
supplier, but, under national law, that cancellation deprives the invoices issued of 
their effect in a way similar to annulment, the invoices issued in 2015 are the only 
documents that can testify to the fact that the purchases took place and that can 
serve as a basis for the refund application. 
25 The referring court cites, in that context, Articles 169 and 178 of Directive 
2006/112 and the first sentence of Article 14(1)(a) of Directive 2008/9. The latter 
provision establishes that, from a procedural point of view, the refund application 
is to be based exclusively on invoices issued during the refund period and the only 
condition laid down by that provision is that the VAT becomes chargeable before 
WILO SALMSON FRANCE 
 
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or at the same time as the invoicing takes place, which is not limited to a 
particular moment. 
26 The referring court also raises the issue of possible discrimination, in so far as 
resident companies have, under national legislation, a limitation period of 5 years 
within which to apply for a refund of VAT, whereas non-resident companies have, 
under Directive 2008/9, a period of only 1 year for exercising that right.