Opinion of the Advocate General — ECLI:EU:C:2017:740
Date: 2017-10-05
Language of the case: Lithuanian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary 44. In short, my view is that Article 183 of Directive 2006/112, read in conjunction with the principle of fiscal neutrality and in the light of the principles of equivalence and effectiveness, requires that, where the tax authorities fail to refund overpaid VAT within a reasonable period as laid down in national law, the taxable person is to receive a refund of that tax together with interest in the full amount provided for in the national law in force, where the delay in refunding the tax was not caused by the taxable person’s actions. Conclusion 45. In the light of all of the foregoing, I propose that the Court answer the question referred by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court, Lithuania) as follows: Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principle of fiscal neutrality, must be interpreted as not permitting a reduction in the amount of interest due to a taxable person by way of default interest for the late refunding of overpaid VAT in relation to the amount of interest to which he would have been entitled under the normal rules, for reasons unconnected with the actions of that taxable person. 1 Original language: Polish. 2 OJ 2006 L 347, p. 1. 3 Judgment of 21 October 2010, Nidera Handelscompagnie (C‑385/09, EU:C:2010:627). 4 See, most recently, judgment of 6 July 2017, Glencore Agriculture Hungary (C‑254/16, EU:C:2017:522, paragraphs 18 to 22 and the case-law cited). 5 Ibid., paragraph 23. 6 Ibid., paragraph 24. 7 See, most recently, judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci (C‑205/15, EU:C:2016:499, paragraph 32 and the case-law cited). 8 The issue of the date from which the interest at issue in the main proceedings is to be calculated is not the subject matter of the question referred. I merely recall that the court of first instance in the main proceedings ruled that interest should be calculated from 17 February 2009. However, it should be noted that, contrary to the Lithuanian tax authorities’ assertions, the failure to refund the tax at issue was in breach of EU law from the outset and not just from the date (21 October 2010) on which the Court delivered its judgment in Nidera Handelscompagnie (C‑385/09, EU:C:2010:627). Preliminary rulings of the Court of Justice are declaratory in nature and determine the interpretation of EU law as it must be applied from the time of its coming into force (see, in particular, judgments of 27 March 1980, Denkavit italiana, 61/79, EU:C:1980:100, paragraph 16; of 19 October 1995, Richardson, C‑137/94, EU:C:1995:342, paragraph 33; and of 14 April 2015, Manea, C‑76/14, EU:C:2015:216, paragraph 53). In exceptional circumstances it is possible to limit the temporal effects of a judgment (see judgment of 14 April 2015, Manea, C‑76/14, EU:C:2015:216, paragraph 54); however the Court did not do so in relation to the judgment of 21 October 2010, Nidera Handelscompagnie (C‑385/09, EU:C:2010:627). 9 See, most recently, judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci (C‑205/15, EU:C:2016:499, paragraph 34 and the case-law cited). 10 See judgment of 6 July 2017, Glencore Agriculture Hungary (C‑254/16, EU:C:2017:522, paragraphs 20 and 22 and the case-law cited). 11 I would point out that in Lithuanian law there are no specific provisions laying down the rules governing such reduction of interest by a court or tribunal and it is hard to imagine that either would reduce it in an entirely arbitrary manner, without taking account of the actual loss incurred by the taxable person. 12 See point 20 above. 13 See point 27 above. 14 See points 13 and 14 above.