Order;Summary — ECLI:EU:C:2025:898
Date: 2025-11-12
Language of the case: Romanian
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Romania

summary of the subject matter of the dispute in the main proceedings and the relevant findings of fact as determined by the referring court or tribunal, or, at the very least, an account of the facts on which the questions referred are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings’ (judgment of 3 April 2025, Swiftair, C‑701/23, EU:C:2025:237, paragraph 22). Article 50 of the Charter 20 As regards Article 50 of the Charter, it should be borne in mind, first of all, that proceedings concerning offences relating to VAT which seek to ensure the correct collection of that tax and to avoid fraud, such as those at issue in the main proceedings, constitute implementation of the VAT Directive and therefore of EU law for the purposes of Article 51(1) of the Charter. Thus, the provisions of national law dealing with such proceedings come within the scope of the Charter (see, to that effect, judgment of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 16 and the case-law cited). 21 Therefore, it is also appropriate to bear in mind the case-law of the Court according to which the application of the principle ne bis in idem guaranteed in Article 50 of the Charter presupposes in the first place that it is the same person who is the subject of the penalties or the criminal proceedings at issue. It follows from the very wording of that article that it prohibits the prosecution of or imposition of criminal sanctions on the same person more than once for the same offence (see, to that effect, judgment of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraphs 17 and 18). 22 In this instance, it is common ground that the criminal proceedings were brought against two natural persons, DX and JC, who are legally distinct from the taxable person involved in the main proceedings, namely Fashion TV. Consequently, as the Czech and Romanian Governments, like the Commission, correctly submitted in their written observations, the condition of the application of the principle ne bis in idem that the ‘same person’ must be subject to the penalties and proceedings at issue appears not to be satisfied. The fact that criminal proceedings were brought against DX and JC in respect of acts committed in their capacity as legal representatives of Fashion TV is not capable of calling that conclusion into question. In those circumstances, Article 50 of the Charter does not appear to be applicable to the main proceedings (see, by analogy, judgment of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraphs 22, 23 and 26). 23 In that context, it should be borne in mind that where provisions of EU law to which a question referred for a preliminary ruling relates are not applicable to the dispute in the main proceedings and are, therefore, irrelevant to the resolution of that dispute, it must be held that the preliminary ruling sought is not necessary to enable the referring court to give judgment and that that question is therefore inadmissible in that respect (see, to that effect, judgment of 3 April 2025, Swiftair, C‑701/23, EU:C:2025:237, paragraph 28 and the case-law cited). 24 It follows that the question submitted by the referring court in the present case is inadmissible on that ground in so far as it relates to Article 50 of the Charter. The principles of legal certainty and the protection of legitimate expectations 25 It should be borne in mind that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular where they may have adverse consequences. That principle requires, inter alia, that the legislation concerned must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly (see, to that effect, judgments of 27 June 2024, Prysmian Cabluri și Sisteme, C‑168/23, EU:C:2024:557, paragraph 40, and of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 158 and the case-law cited). 26 The principle of the protection of legitimate expectations can only be relied upon by a person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise, unconditional and consistent assurances provided to him or her and originating from authorised, reliable sources (judgment of 27 June 2024, Prysmian Cabluri și Sisteme, C‑168/23, EU:C:2024:557, paragraph 41 and the case-law cited). 27 Those principles must be observed by Member States in areas covered by EU law. In that regard, the Member States’ legal rules must be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed (see, to that effect, judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraphs 45 and 46 and the case-law cited). 28 In this instance, the referring court refers to Fashion TV’s argument that the examination, in the context of the tax proceedings pending before the referring court, of evidence obtained in the criminal proceedings which had been brought against DX and JC could undermine the authority of res judicata attaching to the order discontinuing the proceedings against those natural persons. 29 However, the referring court does not explain how such an examination would give rise to a breach of the principle of legal certainty or of the principle of the protection of legitimate expectations with respect to Fashion TV, in its capacity as a taxable person. The referring court, moreover, does not indicate how the relevant provisions of Romanian law are lacking in clarity, precision or foreseeability, nor does it mention any assurance given to Fashion TV by the Romanian tax authorities as regards the right to deduct, linked with the order discontinuing the proceedings. In that regard, the referring court does not explain the link which it purports to establish between the principles of legal certainty and the protection of legitimate expectations, on the one hand, and the national legislation applicable to the dispute in the main proceedings, on the other hand. 30 Thus, as regards those principles, the question submitted by the referring court does not meet the requirements referred to in paragraph 19 of the present order. It follows that that question is also inadmissible in so far as it concerns those principles. 31 Consequently, the question should be answered solely in so far as it concerns Article 168 of the VAT Directive, read in the light of Article 47 of the Charter. Substance 32 In accordance with Article 99 of the Rules of Procedure, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to that question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. 33 That article should be applied in the present case. 34 According to settled case-law, the right of taxable persons to deduct the VAT due or already paid on goods purchased and services received as inputs from the VAT which they are liable to pay is a fundamental principle of the common system of VAT. As the Court has repeatedly held, the right to deduct provided for in Article 167 et seq. of the VAT Directive is an integral part of the VAT scheme and in principle may not be limited if the substantive and formal requirements or conditions to which this right is subject are respected by taxable persons wishing to exercise it (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 32 and the case-law cited). 35 As regards the substantive requirements or conditions to which the right to deduct VAT is subject, it is apparent from Article 168(a) of the VAT Directive that, in order for that right to be available, first, the person concerned must be a ‘taxable person’ within the meaning of that directive and, second, the goods or services relied on as the basis for claiming the right of deduction must be used by the taxable person for the purposes of his or her own taxed output transactions, and that, as inputs, those goods or services must be supplied by another taxable person. As to the detailed rules governing the exercise of the right to deduct VAT, which may be considered formal requirements or conditions, Article 178(a) of that directive provides that the taxable person must hold an invoice drawn up in accordance with the requirements set out in that directive (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 33 and the case-law cited). 36 The substantive conditions for the right to deduct are satisfied only if the supply of goods or services to which the invoice relates has actually been carried out. As regards the burden of proof, it is settled case-law in that regard that it is for the taxable person seeking to deduct VAT to establish that it meets the conditions for eligibility. The tax authorities may thus require the taxable person to produce the evidence they consider necessary for determining whether or not the deduction requested should be granted. As regards the assessment of that evidence, it must be done by the national court in accordance with the rules of evidence under national law, by means of an overall assessment of all the facts and circumstances of the case (see, to that effect, judgments of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 34, and of 12 December 2024, Weatherford Atlas Gip, C‑527/23, EU:C:2024:1024, paragraphs 36 and 37 and the case-law cited). 37 In that context, the taxable person may be refused the right to deduct if it is established, in the light of objective evidence, that the right is being relied on for fraudulent or abusive ends. It must be noted that the fight against tax evasion, avoidance and abuse is an objective recognised and encouraged by the VAT Directive and that the Court has repeatedly held that EU law cannot be relied on for fraudulent or abusive ends. Therefore, even if the substantive conditions for the right of deduction are met, it is for the national authorities and courts to refuse that right if it is established, in the light of objective evidence, that that right is being invoked fraudulently or abusively (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 35 and the case-law cited). 38 Since the refusal of the right of deduction is an exception to the application of the fundamental principle constituted by that right, it is incumbent on the tax authorities to establish, to the requisite legal standard, the objective evidence from which it may be concluded that the taxable person committed VAT fraud or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with such a fraud. It is for the national courts subsequently to determine whether the tax authorities concerned have established the existence of such objective evidence (judgment of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 37 and the case-law cited). 39 In that respect, since EU law lays down no rules relating to the procedures for taking evidence in connection with VAT fraud, that objective evidence must be established by the tax authorities in accordance with the rules of evidence laid down in national law. However, those rules must not undermine the effectiveness of EU law and must observe the rights guaranteed by EU law, especially by the Charter (judgments of 24 February 2022, SC Cridar Cons, C‑582/20, EU:C:2022:114, paragraph 36, and of 11 January 2024, Global Ink Trade, C‑537/22, EU:C:2024:6, paragraph 38 and the case-law cited). 40 Accordingly, and in those circumstances, the Court has considered that EU law does not preclude, in particular, the tax authorities from being able, in the context of an administrative procedure, in order to establish the existence of an abusive practice concerning VAT, to use evidence obtained in the context of parallel national criminal proceedings involving the taxable person that have not yet been concluded, provided that the rights guaranteed by EU law, especially by the Charter, are observed. Similarly, it has held that, subject to that same proviso, the tax authorities must be able to rely, for the purpose of establishing the existence of VAT fraud, on evidence obtained in the context of criminal procedures which have not been closed and which do not involve the taxable person or obtained in related proceedings to which the taxable person was not a party (see, to that effect, judgment of 24 February 2022, SC Cridar Cons, C‑582/20, EU:C:2022:114, paragraph 37 and the case-law cited). 41 Among the rights guaranteed by EU law is, first, respect for the rights of the defence, which, according to a consistent body of case-law, is a general principle of EU law which applies where the authorities are minded to adopt a measure which will adversely affect an individual. In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. The authorities of the Member States are subject to that obligation when they adopt measures which come within the scope of EU law, even though the EU law applicable does not expressly provide for such a procedural requirement (see, to that effect, judgments of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 39, and of 13 June 2024, C (Court-appointed administrators and liquidators), C‑696/22, EU:C:2024:499, paragraphs 104 to 106 and the case-law cited). 42 The principle of respect for the rights of the defence applies in circumstances such as those at issue in the main proceedings, in which a Member State, in order to comply with the obligation arising from the application of EU law to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing fraud, submits a taxpayer to a tax inspection procedure (see, to that effect, judgment of 13 June 2024, C (Court-appointed administrators and liquidators), C‑696/22, EU:C:2024:499, paragraph 107 and the case-law cited). 43 An integral part of respect for the rights of the defence is the right to be heard, which guarantees every person the opportunity to make known his or her view effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely. That right requires, in particular, that the authorities pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision; the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person concerned to understand why his or her application is being rejected is thus a corollary of the principle of respect for the rights of the defence (see, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraphs 41 and 42 and the case-law cited). 44 Second, it is also necessary to take account of Article 47 of the Charter, which guarantees the effectiveness of the judicial review. Under that article, everyone whose rights and freedoms guaranteed by EU law have been violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Everyone is entitled, in particular, to a fair hearing (see, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 60). 45 The principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter, in that it is a corollary, like, in particular, the principle of adversarial proceedings, of the very concept of a fair trial, implies an obligation to offer each party a reasonable opportunity to present its case in conditions that do not place it in a clearly less advantageous position by comparison with its opponent (judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 61 and the case-law cited). 46 The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the taking of evidence and the adversarial hearing before the court and also those parties’ rights to bring an action. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 62 and the case-law cited). 47 In that regard, in order for the judicial review guaranteed by Article 47 of the Charter to be effective, the court reviewing the legality of a decision implementing EU law must be able to verify whether the evidence on which that decision is founded has been obtained and used in breach of the rights guaranteed by EU law and, especially, by the Charter (see, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 63 and the case-law cited). 48 The effectiveness of the judicial review guaranteed by Article 47 of the Charter therefore also requires that the court hearing an action challenging a decision of the tax authorities adjusting VAT be empowered to check that the evidence obtained during a related administrative procedure, to which the taxable person was not a party, and used as the basis of that decision was not obtained in breach of the rights guaranteed by EU law and, especially, by the Charter (see, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 65 and the case-law cited). 49 In the present case, in the light of the settled case-law set out in paragraphs 34 to 38 of the present order, the court with jurisdiction in tax matters, called upon to examine the right to deduct the VAT purportedly already paid by Fashion TV as input VAT, is therefore required to verify whether the conditions for the exercise of that right are satisfied, by examining the evidence submitted to it, in accordance with the relevant rules of national law, and carrying out, in that respect, a global assessment of all the factual evidence and circumstances of the case. 50 In that context, in order to determine whether a VAT fraud exists, such a court must verify whether the tax authorities have established to the requisite legal standard the objective evidence on which it may be concluded that the taxable person has committed such a fraud or that he or she knew or ought to have known that the transaction relied on as the basis for the right to deduct was connected with VAT fraud. Such objective evidence may, inter alia, have been obtained in the course of related proceedings to which the taxable person was not a party. 51 Consequently, that court may, in the light of the settled case-law cited in paragraphs 39 and 40 of the present order, examine evidence obtained in related proceedings to which the taxable person was not a party, such as, in the present case, the criminal proceedings brought against DX and JC. In that regard, the fact that those related proceedings gave rise to an order discontinuing the proceedings concerning those natural persons is irrelevant and cannot constitute a ground on which that court would decline to verify that the taxable person satisfied the conditions for the exercise of the right to deduct. Furthermore, such a circumstance cannot justify the termination of the court proceedings relating to tax matters in favour of the taxable person and for the latter to be recognised as having that right to deduct, without the court dealing with the matter having been able to verify that those conditions were satisfied. 52 Nonetheless, examination of the evidence derived from related criminal proceedings, which resulted in an order discontinuing the proceedings and to which the taxable person was not a party, must observe the rights guaranteed by EU law and, in particular, by the Charter. 53 Having regard to the settled case-law and also to the principles set out in paragraphs 41 to 52 of the present order, the referring court must ensure, in particular, that the Romanian tax authorities gave the taxable person concerned the possibility of effectively making his or her point of view known during the administrative procedure and before a decision refusing the right to deduct was adopted. 54 Consequently the answer to the question raised is that Article 168 of the VAT Directive, read in the light of Article 47 of the Charter, must be interpreted as meaning that the national court hearing a dispute relating to the exercise of the right to deduct VAT must verify that the taxable person concerned has satisfied the substantive and formal conditions laid down in that directive and to that end may examine evidence obtained in earlier criminal proceedings against persons distinct from that taxable person, on condition that that examination respects the rights guaranteed by EU law, in particular by the Charter, including the principle of equality of arms and the rights of the defence. Costs 55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Sixth Chamber) hereby rules: Article 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the national court hearing a dispute relating to the exercise of the right to deduct value added tax must verify that the taxable person concerned has satisfied the substantive and formal conditions laid down in that directive and to that end may examine evidence obtained in earlier criminal proceedings against persons distinct from that taxable person, on condition that that examination respects the rights guaranteed by EU law, in particular by the Charter of Fundamental Rights, including the principle of equality of arms and the rights of the defence. [Signatures] * Language of the case: Romanian.