Opinion of the Advocate General — ECLI:EU:C:2010:286
Date: 2010-05-20
Language of the case: English
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - unfounded
Origin: United Kingdom

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of tax to taxable persons not established in European Union territory (Council Directives 86/560, Art. 2(1), and 2006/112, Art. 169(c), 170 and 171) A Member State which excludes the refund of input value added tax for insurance and financial transactions referred to in Article 169(c) of Directive 2006/112 on the common system of value added tax made by taxable persons not established in the territory of the European Union does not fail to fulfil its obligations under Articles 169 to 171 of Directive 2006/112 and Article 2(1) of the Thirteenth VAT Directive 86/560 on the harmonisation of the laws of the Member States relating to turnover taxes. The provisions of the Thirteenth Directive and, in particular Article 2(1) thereof, which makes no reference to the transactions referred to in Article 169(c) of Directive 2006/112, must be considered as a lex specialis as compared with Articles 170 and 171 of Directive 2006/112, preventing the right to a refund, set out in general terms in Article 170, from overriding the clear and precise wording of Article 2(1) of the Thirteenth Directive. Even if the absence of any reference in Article 169(c) of Directive 2006/112 is an error by the legislature of the European Union, it is not for the Court to make an interpretation with the aim of correcting Article 2(1). Furthermore, a Member State, whose law complies with the clear and precise wording of Article 2(1), cannot be accused of failing to fulfil its obligations specifically arising from that provision because it allegedly failed to interpret that provision with the aim of correcting it, in order to comply with the overall logic of the common system of VAT and to remedy an error of the legislature of the European Union. In that connection, the principle of legal certainty requires the rules of the European Union to enable those concerned to know precisely the extent of the obligations imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. That principle is also relevant in the context of the transposition of a directive in the area of taxation. The Court may not, in the face of the clear and precise wording of a provision such as Article 2(c), interpret that provision with the intention of correcting it and thereby extending the obligations of the Member States relating to it. (see paras 35, 46, 48-51)