Opinion of the Advocate General — ECLI:EU:C:2017:927
Date: 2017-11-30
Language of the case: Portuguese
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary 65. The existence of an invoice clearly showing the VAT due is not only a formal criterion but asubstantive condition of deducting input VAT. This follows from the purpose served by an invoice, which is, inter alia, to ensure parity between the tax due and the input tax deduction. Since the right to deduct input VAT depends, substantively, on whether a taxable person has sustained a charge to VAT (because he has already paid it in the consideration) or will sustain such a charge (because he has agreed to pay the consideration on that basis), an indication of that charge in the invoice is mandatory. 66. That interpretation alone is consistent with the particular features of Article 226(10) in conjunction with Article 203, Article 90, Article 184 and Article 185 of the VAT Directive. 67. The right to deduct input VAT in a given amount, too, therefore, cannot arise (or be exercised) until the recipient is in possession of an invoice showing a VAT value in that amount. In the present case, this did not occur until 2012. 68. It also follows that the question, discussed at length by the Portuguese Republic, as to how long such a right is exercisable for under national law can be left unanswered here. There is nothing to indicate that the time limit laid down in national law of four years from the point of possession of the invoice is questionable from the point of view of EU law. C. The second question 69. Since the first question has been answered in the affirmative, there is no need to consider the second question any further. 70. Moreover, the purchaser’s refusal to pay the consideration is a question of civil law the answer to which does not flow from the VAT Directive. Whether a purchaser who is no longer able to deduct input VAT must nevertheless pay the consideration retrospectively, in the case where the tax rate which the two parties, on concluding the contract, both assumed would apply was too low, is a question calling for an interpretation of the contract that takes into account all the circumstances of the individual case. The only inference that can be drawn from Article 73 of the VAT Directive is that VAT is an integral part of the consideration originally agreed. Whether and to what extent that originally agreed consideration can be adjusted retrospectively is a question to be determined primarily by reference to the distribution of risk between the parties under the contract. VI. Proposed answer 71. I therefore propose that the answer to the request for a preliminary ruling from the Supremo Tribunal de Justiça (Supreme Court, Portugal) should be as follows: In accordance with Article 168(a) in conjunction with Article 178(a) and Article 226(10) of the VAT Directive, the right to deduct input VAT in the value of the VAT amount entered as being payable on an invoice arises only on receipt of such an invoice. A retrospective increase (correction) of the VAT amount payable on an amended invoice does not trigger the retroactive accrual of the right to deduct input VAT. Consequently, the provisions of the VAT Directive preclude legislation under which, in a situation such as that in the present case, the time limit for deducting the additional VAT starts to run as soon as the original invoice is issued. 1 Original language: German. 2 Case C‑533/16 — Volkswagen AG. 3 Judgment of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690). 4 Judgment of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691). 5 OJ 2006 L 347, p. 1. 6 Judgments of 17 September 2014, Cruz & Companhia (C‑341/13, EU:C:2014:2230, paragraph 32); of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 26); of 22 June 2010, Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27); and of 22 January 2002, Canal Satélite Digital (C‑390/99, EU:C:2002:34, paragraph 19). 7 Judgments of 21 September 2017, SMS group (C‑441/16, EU:C:2017:712, paragraph 39); of 22 June 2016, Gemeente Woerden (C‑267/15, EU:C:2016:466, paragraph 31); of 22 December 2010, Dankowski (C‑438/09, EU:C:2010:818, paragraph 23); and of 15 July 2010, Pannon Gép Centrum (C‑368/09, EU:C:2010:441, paragraph 37). 8 Judgments of 21 September 2017, SMS group (C‑441/16, EU:C:2017:712, paragraph 40); of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 27); of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 39); of 22 March 2012, Klub (C‑153/11, EU:C:2012:163, paragraph 35); and of 22 December 2010, Dankowski (C‑438/09, EU:C:2010:818, paragraph 24). 9 Order of 12 January 2017, MVM (C‑28/16, EU:C:2017:7, paragraph 28); and the judgments of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 28); of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 40); of 22 June 2016, Gemeente Woerden (C‑267/15, EU:C:2016:466, paragraph 34); see, to that effect, judgment of 22 October 2015, PPUH Stehcemp (C‑277/14, EU:C:2015:719, paragraph 28) and the case-law cited. 10 Judgment of 22 June 2016, Gemeente Woerden (C‑267/15, EU:C:2016:466, paragraph 35). 11 In the light of Article 73 of the VAT Directive, this should be more precisely referred to as 5/105 of the agreed consideration. 12 In the light of Article 73 of the VAT Directive, this should be more precisely referred to as 21/121 of the agreed consideration. 13 Judgment of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 35). See to that effect judgment of 29 April 2004, Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268, paragraph 34). 14 See also to that effect the Opinion of Advocate General Campos Sánchez-Bordona in Volkswagen (C‑533/16, EU:C:2017:823, point 60). 15 Judgment of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 27), see also my Opinion in Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:101, points 30, 32 and 46). 16 In the judgment of 13 March 2014, Malburg (C‑204/13, EU:C:2014:147, paragraph 43), the Court speaks of a principle of interpretation. 17 Judgments of 16 October 2008, Canterbury Hockey Club and Canterbury Ladies Hockey Club (C‑253/07, EU:C:2008:571, paragraph 30); of 7 September 1999, Gregg (C‑216/97, EU:C:1999:390, paragraph 20); and of 11 June 1998, Fischer (C‑283/95, EU:C:1998:276, paragraph 22). 18 Judgments of 13 March 2008, Securenta (C‑437/06, EU:C:2008:166, paragraph 25), and of 1 April 2004, Bockemühl (C‑90/02, EU:C:2004:206, paragraph 39). 19 Judgments of 13 March 2014, Malburg (C‑204/13, EU:C:2014:147, paragraph 41); of 15 December 2005, Centralan Property (C‑63/04, EU:C:2005:773, paragraph 51); of 21 April 2005, HE (C‑25/03, EU:C:2005:241, paragraph 57); and my Opinion in Centralan Property (C‑63/04, EU:C:2005:185, point 25). 20 Opinion of Advocate General Campos Sánchez-Bordona in Volkswagen (C‑533/16, EU:C:2017:823, point 64). 21 Judgment of 29 April 2004, Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268, paragraph 35). 22 Opinion of Advocate General Campos Sánchez-Bordona in Volkswagen (C‑533/16, EU:C:2017:823, point 58 et seq.). 23 See in this regard the same view as expressed by Advocate General Campos Sánchez-Bordona in his Opinion in Volkswagen (C‑533/16, EU:C:2017:823, point 64). 24 Judgments of 15 March 2007, Reemtsma Cigarettenfabriken (C‑35/05, EU:C:2007:167, paragraph 23), and of 13 December 1989, Genius (C‑342/87, EU:C:1989:635, paragraph 15). 25 Advocate General Campos Sánchez-Bordona almost certainly takes the same view in Volkswagen (C‑533/16, EU:C:2017:823, point 67). 26 Judgment of 28 July 2016, Astone (C‑332/15, EU:C:2016:614, paragraph 47). See, to that effect, judgment of 11 December 2014, Idexx Laboratories Italia (C‑590/13, EU:C:2014:2429, paragraphs 41 and 42) and the case-law cited. 27 Judgments of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 42); of 9 July 2015, Salomie und Oltean (C‑183/14, EU:C:2015:454, paragraphs 58 and 59); see also, to that effect, albeit in the context of a reverse charge procedure, judgments of 21 October 2010, Nidera Handelscompagnie (C‑385/09, EU:C:2010:627, paragraph 42); and of 1 March 2012, Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz (C‑280/10, EU:C:2012:107, paragraph 43). 28 Judgment of 15 September 2016, Barlis 06 — Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 43). 29 In its judgment of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 39), the Court expressly draws a distinction between that judgment and the judgment of 29 April 2004, Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268, paragraph 38), noting that, in the latter case, there was no invoice, while, in Senatex, there was an invoice which was paid inclusive of VAT. 30 Judgment of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 39). 31 See, on the relationship between the two, my Opinion in Di Maura (C‑246/16, EU:C:2017:440, point 27), and the Opinion of Advocate General Saugmandsgaard Øe in T — 2 (C‑396/16, EU:C:2017:763, point 56 et seq.).