Order;Summary — ECLI:EU:C:2024:271
Date: 2024-03-18
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-37/23 – 1 
Case C-37/23 
Summary of request for a preliminary ruling pursuant to Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
25 January 2023 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
16 January 2023 
Appellant:  
Agenzia delle Entrate (Revenue Agency) 
Respondent:  
PR 
  
Subject matter of the main proceedings 
Tax benefits – VAT – 2009 earthquake – Refund of tax at the rate of 60%. 
Subject matter and legal basis of the request 
1 With reference to the dispute in the main proceedings, in which the Revenue 
Agency and a taxpayer hold opposing points of view, the referring court raises, of 
its own motion, the question of the compatibility with the principle of fiscal 
neutrality of national legislation providing for the refund, at the rate of 60%, of the 
tax already paid as Value Added Tax (VAT) in the period between April 2009 and 
December 2010, legislation introduced specifically in response to the earthquake 
which occurred in the Abruzzo region on 6 April 2009. That provision would 
result in different treatment, contrary to the principle of fiscal neutrality. In 
addition, the granting of such a refund is contested, since an injunction has been 
issued to suspend the unlawful aid granted by Italy in State aid case SA.35083 
(2012/NN) – Earthquake in Abruzzo. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-37/23 
 
2  
Question referred for a preliminary ruling 
2 ‘Do the principles set out in the order [of 15 July 2015,] Revenue Agency v Nuova 
Invincibile srl, C-82/14, EU:C:2015:510, and in the judgment of 17 July 2008, 
Commission v Italy, C-132/06, EU:C:2008:412, preclude a legislative provision, 
such as that resulting from Article 33(28) of Legge (Law) No. 183 of 2011, which 
allows taxpayers to obtain a refund, at the rate of 60%, of the VAT paid in the 
period between April 2009 and December 2010, in relation to the earthquake 
which affected the Abruzzo territory on 6 April 2009?’ 
Provisions of European Union law relied on 
3 Articles 2, 206 and 273 and recital 45 of Council Directive 2006/112/EC of 
28 November 2006 (Sixth VAT Directive); Article 108(3) TFEU; Article 11(1) of 
Regulation (EC) No 659/1999. 
Provisions of national law relied on  
4 Article 39 of Decreto-Legge (Decree-Law) No 78 of 31 May 2010, converted, 
with amendments, into Legge (Law) No 122 of 30 July 2010, provides that, the 
payment of taxes, including VAT, by natural persons holding income arising from 
their business or through self-employment, as well as subjects other than natural 
persons with a turnover not exceeding €200,000, is suspended until 20 December 
2010, without the right to reimbursement of the amount already paid. 
5 Article 33(28) of Law No. 183 of 12 November 2011 provides that, in order to 
facilitate recovery following the emergency resulting from the earthquake that 
struck the Abruzzo territory on 6 April 2009, the resumption of the payment of 
taxes referred to in the aforementioned Article 39 of Decree-Law No. 78 of 
31 May 2010 must proceed on an instalment basis (payment in 120 monthly 
instalments), and that the amount due for each tax suspended, net of payments 
already made, is reduced to 40%. 
6 As a result of this set of rules, therefore, for the period from 9 April 2009 to 
20 December 2010, the payment of taxes, including VAT, by holders of income 
arising from their business or through self-employment (as well as subjects other 
than natural persons with a turnover not exceeding €200,000) was first suspended 
and then resumed with payment by instalments, subject to an overall reduction of 
60%. 
7 Partially analogous provisions had been introduced by Article 9(17) of Legge 
(Law) No. 289 of 27 December 2002, with respect to subjects affected by the 
1990 earthquake in Sicily. 
GIOCEVI 
 
3 
Succinct presentation of the facts and procedure in the main proceedings 
8 PR, a notary public, requested a refund of the sum of €102,088 as VAT paid for 
the period from April 2009 to December 2010, since the tax, the payment of 
which had initially been suspended in response to the earthquake affecting 
Abruzzo  that occurred on 6 April 2009, had then been reduced to 40% of the 
amounts due, pursuant to Article 33(28) of Law No 183 of 12 November 2011. 
The Revenue Agency rejected the application on the ground that the provision in 
question excluded the reimbursement of amounts already paid. 
9 The taxpayer’s appeal against the refusal was rejected by the Provincial Tax 
Commission, which held that the reduction was to be applied to the amount 
outstanding, and did not concern payments already made. 
10 The taxpayer appealed to the Regional Tax Commission, arguing that the situation 
involving subjects who had not paid the tax, and were eligible for a reduction in 
the payment due, should be considered analogous to that of subjects who, on the 
other hand, after making payments, request the reimbursement of the higher sums 
paid, an argument in line with the interpretation by the Court of Cassation of the 
analogous provision in Article 9(17) of Law no. 289 of 27 December 2002, 
referring to the 1990 earthquake in Sicily. The Revenue Agency contested the 
taxpayer’s argument, as it concerned VAT, and requested, in any event, that the 
case be suspended pending the European Commission’s decision C(2012) 7128 
final of 17 October 2012 initiating the formal investigation procedure under 
Article 108 TFEU, containing the injunction requiring the suspension of State aid 
incompatible with EU law. 
11 The Regional Tax Commission, reversing the judgment at first instance, upheld 
the taxpayer’s appeal and declared unlawful the refusal to grant the VAT refund. 
The Revenue Agency lodged the present appeal against the judgment with the 
Court of Cassation, to which the taxpayer responded with a counter-appeal. 
The essential arguments of the parties  
12 The Revenue Agency, the appellant, alleges infringement of Article 108(3) 
TFEU and article 11(1) of Regulation No 659/1999/EC, in that the Regional Tax 
Commission recognised, despite an injunction to suspend the unlawful aid granted 
by Italy in State aid case SA.35083 (2012/NN) – Earthquake in Abruzzo, the right 
to a VAT refund of a subject who carries out an economic activity, in the case in 
question, a freelance notary public. 
13 The taxpayer, the respondent, claims that the plea is unfounded because, in his 
view, the European Commission’s decision does not apply to the present case, 
concerning a professional working in a local context. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-37/23 
 
4  
The relevant case-law from the Court of Justice 
14 The [o]rder of 15 July 2015, Revenue Agency v. Nuova Invincibile srl, C-82/14, 
EU:C:2015:510, as well as the judgment of 17 July 2008, Commission v Italy, 
C-132/06, EU:C:2008:412, concerning Articles 8 and 9 of Law No. 289 of 2002, 
are specifically relevant. 
15 In the aforementioned order, the Court of Justice, after stating that ‘the system of 
deductions was established in order to ensure the neutrality of VAT […] that 
system is intended to fully relieve the taxable person of the burden of VAT due or 
paid as part of his or her economic activities. The common VAT system thus 
guarantees the neutrality of taxation for all economic activities”, observed that 
“the effect of the measure introduced by Article 9(17) of Law no. 289/2002, on 
the one hand, is not to alleviate, with regard to VAT, the tax burden borne by 
taxable persons, but to enable certain taxable persons to retain or appropriate sums 
paid by the final consumer and owed to the tax authorities” and, on the other, 
creates “a difference in treatment contrary to the principle of fiscal neutrality, in 
so far as that provision enables certain taxable persons referred to therein, by 
virtue of the reduction in the VAT normally due – a reduction provided for by the 
same provision – to retain or appropriate the greater part of the amount of VAT 
received on the sale of goods or supply of services, while other taxable persons on 
Italian territory are obliged to pay the full amount of VAT normally due to the tax 
authorities, on the basis of the same transactions”. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The referring court observes that two circumstances are relevant in the 
examination of the appeal:  
a) the European Commission’s final decision C(2012) 7128 final of 17 October 
2012 was issued during the course of the proceedings. 
b) the request for a refund relates to VAT. 
17 With regard to the first aspect, the referring court observes that the incompatibility 
of the measures with which the Member State renounces the correct application 
and/or collection of the amount due as VAT must be raised by the court of its own 
motion, irrespective of any specific pleas put forward by each party, since the 
principle of effectiveness contained in Article 10 of the EC Treaty obliges the 
national court to apply EU law of its own motion. In the present case, the 
Commission, in its decision of 14 August 2015, C(2015) 5549 final (which the 
national court must also implement through the non-appliance of conflicting rules) 
established, in Article 1, that “State aid measures (…) which reduce taxes and 
contributions owed by enterprises in areas affected by natural disasters in Italy 
since 1990, and which Italy has unlawfully put into effect in breach of 
Article 108(3) of the Treaty on the Functioning of the European Union, are 
incompatible with the internal market”. 
GIOCEVI 
 
5 
18 According to the referring court, Article 33(28) of Law No 183 of 2011 
implements the same mechanism as that already introduced by article 9(17) of 
Law No 289 of 2002, seeing that, in the case of the latter provision, “The amount 
payable in respect of each tax or contribution (…) subject to suspension, net of 
payments already made, is reduced to 40 per cent”, thus providing for a reduction 
of the sums to be paid of 60%. 
19 It appears, in the first place, that the benefit of the tax reduction does not have the 
effect of alleviating, with regard to VAT, the tax burden borne by taxable persons, 
but of enabling a certain number of them to retain or appropriate sums already 
paid by the final consumer and owed to the tax authorities: in other words, the 
effect of the legislative provision is to enable certain subjects to be reimbursed a 
sum which, in reality, has already been paid by others, that is, the final consumers, 
for whom the possibility of requesting, in turn, a refund of the sum paid from the 
trader is only hypothetical. 
20 In the second place, the provision appears to give rise to unequal treatment, 
directly infringing the principle of fiscal neutrality in that it allows certain taxable 
persons to retain and appropriate a very significant portion (60%) of the amount of 
VAT collected on the sale of goods or the supply of services, unlike other 
taxpayers on the Italian territory who, on the other hand, are obliged to pay the 
full amount of VAT in relation to the same type of transaction. 
21 The taxpayer pointed out that the new provision, unlike that of 2002, does not 
preclude an assessment by the Revenue Agency, that the reduction is only 60% (as 
opposed to the 90% provided for by the 2002 provision) and that the territorial 
scope of application is more limited, concluding that the principles confirmed by 
the Court of Justice in the order [of 15 July 2015], Revenue Agency v Nuova 
Invincibile s.r.l., do not extend to the case in question. 
22 In the opinion of the referring court, neither the reduction nor the territorial 
delimitation appear to be significant elements, just as the non-preclusion of 
assessment measures is irrelevant, whereas the amount of the sums reduced 
remains pertinent. The provision in question therefore appears to result in an 
unjustified infringement of the principle of VAT neutrality. 
23 The referring court does however consider that, since this is a provision that has 
never been specifically examined by the Court of Justice, taking into account the 
party’s observations, the question of the compatibility of Article 33(28) of Law 
No 183/2011 should be referred to the Court of Justice, in the light of the 
foregoing.