OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 12 May 2022 (1)
Case C‑235/21
Raiffeisen Leasing, trgovina in leasing d.o.o.
v
Republika Slovenija
(Request for a preliminary ruling
from the Vrhovno sodišče (Supreme Court, Slovenia))
(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 203 – Sale and lease back – Article 226 – Details which must appear on the invoice – Possibility of treating a written agreement as an invoice)
I.      Introduction
1.        This request for a preliminary ruling concerns the interpretation of Article 203 of Directive 2006/112/EC on the common system of value added tax. (2)
2.        The request has been made in proceedings between Raiffeisen Leasing d.o.o. (‘Raiffeisen’) and the Republika Slovenija (Republic of Slovenia), represented by the Ministrstvo za finance (Ministry of Finance, Slovenia), concerning the imposition of value added tax (VAT) due on a lease agreement, which was classified as an ‘invoice’ within the meaning of Article 203 of the VAT Directive because it included the value of the VAT.
3.        Notwithstanding the specific factual background relating to the method of implementing a sale and lease back transaction, (3) the present case raises a relatively simple question. Can, and if so under what circumstances may, a written agreement between two contracting parties, such as a lease agreement for immovable property, and which sets out the value of the VAT be regarded, in itself, as an ‘invoice’, within the meaning of the VAT Directive, giving rise, on the one hand, to an obligation on the part of the issuer of that invoice to pay VAT and, on the other hand, to a right on the part of the person to whom that invoice is addressed to deduct input VAT?
II.    The legal framework
A.      European Union law
4.        Recital 46 of the VAT Directive states:
‘The use of electronic invoicing should allow tax authorities to carry out their monitoring activities. It is therefore appropriate, in order to ensure the internal market functions properly, to draw up a list, harmonised at Community level, of the particulars that must appear on invoices …’
5.        Article 203 of that directive provides that ‘VAT shall be payable by any person who enters the VAT on an invoice’.
6.        Chapter 3, entitled ‘Invoicing’, which forms part of Title XI of that directive, includes Section 2, entitled ‘Concept of invoice’, comprising Articles 218 and 219; Section 3, entitled ‘Issue of invoices’, comprised, at the time of the facts at issue in the main proceedings Articles 220 to 225; and Section 4, entitled ‘Content of invoices’, comprised Articles 226 to 231.
7.        Article 218 of that directive provides:
‘For the purposes of this Directive, Member States shall accept documents or messages on paper or in electronic form as invoices if they meet the conditions laid down in this Chapter.’
8.        Article 219 of the VAT Directive reads as follows:
‘Any document or message that amends and refers specifically and unambiguously to the initial invoice shall be treated as an invoice.’
9.        According to Article 226(7) and (9) of that directive:
‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles 220 and 221:
…
(7)      the date on which the supply of goods or services was made or completed or the date on which the payment on account referred to in points (4) and (5) of Article 220 was made, in so far as that date can be determined and differs from the date of issue of the invoice;
…
(9)      the VAT rate applied.’
B.      Slovenian law
10.      According to Article 67(1) of the Zakon o davku na dodano vrednost (Law on VAT; ‘the ZDDV-1’):
‘In order to exercise the right to deduct VAT, a taxable person must meet the following conditions:
(a)      for the purposes of deductions pursuant to Article 63(1)(a), of this Law in respect of the supply of goods or services, the taxable person must hold an invoice drawn up in accordance with Articles 80(a) to 84(q) of this Law;
…’
11.      Article 76 of the ZDDV-1 provides:
‘1.      VAT must be paid by:
…
(9)      any person who enters the VAT on an invoice.
…’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
12.      RED d.o.o. (‘RED’) was the owner of land on which a building is located in Rožna Dolina, in the municipality of Ljubljana (Slovenia) (together, ‘the property at issue’).
13.      In order to secure the financing for a new building on that land, RED concluded with Raiffeisen a sale and lease back transaction, which was carried out in two stages.
14.      By a first agreement on 19 November 2007, those companies agreed, on the one hand, for Raiffeisen to buy the property at issue from RED and, on the other hand, for RED to pay Raiffeisen monthly lease instalments up until repayment in full of the value of the land and of the newly constructed building (that is to say a total amount of EUR 1 294 786.56) (‘the lease agreement’). Although that agreement stated that the VAT amounted to EUR 110 056.86, Raiffeisen did not provide RED with any specific invoice. Moreover, that VAT was neither declared nor paid by Raiffeisen. On the basis of that agreement, RED claimed a right to deduct that VAT, considering that the agreement constituted an invoice within the meaning of Article 203 of the VAT Directive, for which reason RED included that VAT in its VAT return.
15.      By a second agreement on 22 November 2007, RED and Raiffeisen concluded a contract for the sale of the property at issue, which set out the sales price and VAT. RED issued to Raiffeisen an invoice including VAT. Following the conclusion of the agreement and on the basis thereof, Raiffeisen exercised its right to deduct VAT.
16.      On 21 October 2011, Raiffeisen and RED terminated the lease agreement by mutual agreement, since RED had not fulfilled its obligations under the agreement within the prescribed period. Raiffeisen subsequently sold the property at issue to another buyer at a price inclusive of VAT.
17.      On 25 July 2014, in the course of a tax inspection procedure, RED was issued a final decision by the Finančna uprava Republike Slovenije (Tax Authority of the Republic of Slovenia, ‘the FURS’), by which its right to deduct the VAT was withdrawn. (4)
18.      As a result, Raiffeisen acquired the right to correct the VAT invoiced under the lease agreement, since the FURS decision had eliminated the risk of loss of tax revenue.
19.      However, despite that correction, the FURS, inter alia, (5) ordered Raiffeisen to pay interest on the tax debt amounting to EUR 50 571.88, on the ground that, in the course of the tax inspection procedure, it was established that Raiffeisen had not paid the VAT due under the lease agreement for the period from 3 January 2008 to 25 July 2014. Specifically, the FURS considered that, since the lease agreement stated the value with an express reference to VAT, the agreement had to be regarded as an ‘invoice’, within the meaning of Article 76(1)(9) of the ZDDV-1 (the provision transposing Article 203 of the VAT Directive), and that Raiffeisen’s obligation to pay VAT had to be regarded as having arisen when that agreement was concluded. On the basis of that document, RED became entitled to exercise its right to deduct VAT.
20.      Raiffeisen challenged the decision of the FURS by bringing, first, an administrative action before the Ministry of Finance and, next, an action before the Upravno sodišče (Administrative Court, Slovenia). Both actions were dismissed. Raiffeisen then lodged an appeal on a point of law before the referring court, the Vrhovno sodišče (Supreme Court, Slovenia).
21.      In support of its appeal, Raiffeisen argues, inter alia, that the lease agreement could not be characterised as an ‘invoice’ within the meaning of the VAT Directive, since it did not include all the essential elements of an invoice (that is to say the VAT rate applied and the date of supply of the goods). Therefore, according to Raiffeisen, the formal requirements for RED to exercise its right to deduct input VAT were not fulfilled, and so there was no risk of loss of tax revenue.
22.      The referring court recalls that, as is apparent from the case-law of the Court, the obligation to pay VAT as a result of the issue of a VAT invoice could arise even if the invoice does not contain certain information the mention of which is required by the VAT Directive, in particular in the event that the place of supply of the service provided is not indicated. (6) That interpretation is supported both by the wording of Article 203 of the VAT Directive and by the objective pursued by that directive, namely to prevent the risk of loss of tax revenue.
23.      However, the referring court argues that an agreement, as a contractual transaction, may be distinguished from an invoice and may constitute solely the legal basis for a transaction subject to VAT, since the invoice must in any event be drawn up when the chargeable event giving rise to the obligation to pay VAT occurs (that is to say when the goods or the services are supplied). (7)
24.      Therefore, that court seeks to ascertain whether an agreement can be regarded as an invoice, within the meaning of Article 203 of the VAT Directive, solely where it objectively demonstrates the parties’ clearly expressed intention to treat that agreement as an invoice for a specific transaction, such an agreement thus being capable of giving rise to a reasonable expectation on the part of the purchaser that it may, on the basis thereof, deduct input VAT.
25.      In those circumstances, the Vrhovno sodišče (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      May a written agreement be regarded as an invoice, for the purposes of Article 203 of the VAT Directive, only if it contains all of the information that is required to be set out in an invoice in accordance with Chapter 3 (‘Invoicing’) [of Title XI] of [that directive]?
(2)      In the event that that question is answered in the negative, on the basis of what information and circumstances may a written agreement in any event be regarded (also) as an invoice giving rise to an obligation to pay VAT within the meaning of Article 203 of the VAT Directive?
(3)      More specifically, may a written agreement, concluded by two taxable persons subject to VAT and concerning the supply of goods or services, be regarded as an invoice within the meaning of Article 203 of the VAT Directive if it evidences an express and objectively identifiable intention on the part of the seller or the provider of services, as a contracting party, to issue an invoice for a specific transaction, such that the purchaser could reasonably assume that it had, on the basis thereof, a right to deduct the input VAT paid?’
26.      Written observations were submitted by Raiffeisen, the Slovenian Government and the Commission.
IV.    Analysis
27.      By its three questions, which must be considered together, the referring court asks, in essence, whether Article 203 of the VAT Directive must be interpreted as meaning that a (written) lease agreement which was concluded by two taxable persons subject to VAT and the conclusion of which was not followed by the issue of a VAT invoice may be regarded as an ‘invoice’, within the meaning of that provision, so as to give rise to an obligation on the part of the seller (the lessor) to pay VAT and to a possibility on the part of the purchaser (the lessee) to deduct the input VAT.
28.      If so, the referring court seeks to ascertain, first, what details that agreement must contain in order to be regarded as such an invoice, in particular in the light of the details laid down in Article 226 of the VAT Directive, and, secondly, whether it is relevant to examine whether that agreement objectively demonstrates an intention on the part of the seller of the goods or the provider of the services as a contracting party (the lessor) that that agreement should constitute an invoice which is capable of giving rise to an expectation on the part of the purchaser (the lessee) that it will be able to deduct input VAT on the basis of that agreement.
29.      Raiffeisen argues that a lease agreement, such as that at issue in the main proceedings, may be regarded as an invoice within the meaning of Article 203 of the VAT Directive only if it contains an express provision to that effect and if all the elements laid down by Chapter 3 (‘Invoicing’) of Title XI of the VAT Directive are fulfilled. By contrast, the Slovenian Government argues that such a written agreement may be treated as an invoice even if it does not contain all the information required by that chapter, if the agreement contains the names of the lessor and the lessee, a description of the transaction, the value of the supply of goods or services and the amount of VAT to be paid by the lessee; if the agreement objectively demonstrates the expressed intention of the lessor as a contracting party that that agreement is an invoice which can give rise to an expectation on the part of the lessee that it is entitled to deduct input VAT on that basis; and if it is clear, from an express contractual clause, from other contractual provisions or even from the circumstances of the transaction, that the issue of an invoice as a specific document was not intended. (8)
A.      The concept of ‘invoice’
30.      At the outset, it should be recalled that Article 218 of the VAT Directive provides that ‘for the purposes of [that directive], Member States shall accept documents or messages on paper or in electronic form as invoices if they meet the conditions laid down in [Chapter 3 of Title XI of that directive]’. Moreover, Article 219 of the same directive treats as an invoice ‘any document or message that amends and refers specifically and unambiguously to the initial invoice’.
31.      It follows that, on the basis of those provisions, it is not important, in order for a document to be regarded as an invoice, for it to have a specific form or for the term ‘invoice’ to be included on it in some way, since an invoice may also consist of several documents. (9) There is therefore nothing to prevent a lease agreement, such as that at issue in the main proceedings, from being regarded as an invoice, provided that the conditions set out in Chapter 3 of Title XI of the VAT Directive are fulfilled.
32.      In that regard, on the one hand, as regards the rules on issuing invoices, Article 220(1) of the VAT Directive provides that an invoice must be issued, inter alia, for any supply of goods or services which a taxable person makes to another taxable person. (10)
33.      On the other hand, as regards the rules on the content of invoices, that content is governed by the provisions of Section 4 of Chapter 3, which comprised, at the time of the facts at issue in the main proceedings, Articles 226 to 231. More specifically, Article 226 of the VAT Directive provides that, without prejudice to the particular provisions laid down by that directive, only the details listed in that provision must obligatorily appear, for VAT purposes, on invoices issued pursuant to the provisions of Articles 220 and 221 (11) (‘the obligatory details’).
34.      It could be inferred from the wording of the abovementioned provisions, that only documents containing the obligatory details may serve as invoices for VAT purposes. By way of example, the Court has stated that it is not open to Member States to make the exercise of the right to deduct VAT dependent on compliance with conditions relating to the content of invoices which are not expressly laid down by the provisions of the VAT Directive. (12) Those obligatory details are therefore laid down in a binding and exhaustive manner by Article 226 of that directive. (13)
35.      However, such an approach, despite the advantage it offers in terms of legal certainty and consistency runs, in certain situations, the risk of disregarding the primary role accorded to ‘invoices’ by the VAT Directive. As is apparent from recital 46 of that directive, invoices are issued, inter alia, to ‘allow tax authorities to carry out their monitoring activities’. In that regard, the Court has stated that the objective of the details which must be shown in an invoice is to allow the tax authorities to monitor payment of the tax due and, if appropriate, the existence of the right to deduct VAT. (14) It is, moreover, in order to ensure that that type of control is possible that taxable persons must, under Article 244 of that directive, store all the invoices which they have received, as well as copies of all the invoices which they have issued.
36.      It is, therefore, in the light of the objective of facilitating the tax authorities’ ability to monitor payment of the tax due and, if appropriate, the existence of the right to deduct VAT that it should be examined whether a lease agreement, such as that at issue in the main proceedings, can be regarded as an ‘invoice’ pursuant to Article 203 of the VAT Directive. (15)
B.      The invoice as evidence of payment of the VAT due under Article 203 of the VAT Directive
37.      An invoice must be capable of confirming that VAT has been correctly paid. In the present case, in order to assess whether an agreement such as that at issue in the main proceedings permits such verification, it is necessary to examine the content of Article 203 of the VAT Directive, under which the FURS considered that Raiffeisen should have paid VAT.
38.      According to a literal interpretation of Article 203 of the VAT Directive, VAT is to be payable by any person who enters the VAT on an invoice. In that regard, the Court has stated that the VAT indicated on an invoice is payable by the issuer of the invoice even in the absence of an actual taxable transaction. (16)
39.      Accordingly, the obligation to pay VAT under Article 203 of the VAT Directive is independent of the obligation to pay that VAT on the basis of a transaction subject to VAT, for the purposes of Article 2 of that directive. Unlike in the case of the tax debt which may arise as a result of a transaction subject to VAT, the Court has ruled that the tax debt provided for in Article 203 of that directive arises exclusively because VAT is entered on the invoice, without the place of the supply of services giving rise to an invoice being relevant with regard to the question whether that debt arises, (17) even though that element is expressly provided for in Article 226 of that same directive as a necessary detail on an invoice.
40.      By the same logic, in the context of a systematic interpretation of the VAT Directive, I would point out that although Article 203 of the VAT Directive refers to an ‘invoice’, unlike Article 178(a) of that directive, which deals with the rules governing exercise of the right to deduct VAT in the case of a supply of goods or services, that Article 203 does not expressly state that that invoice must fulfil all the requirements set out in Articles 220 to 236 as well as Articles 238, 239 and 240. Moreover, if those formal requirements relating to invoicing were relevant, the issuer of the invoice could easily circumvent the obligation to pay VAT simply by failing to include on that invoice any of the details required by Article 226 of the VAT Directive.
41.      The Court has ruled that that provision seeks to eliminate the risk of loss of tax revenue which the right of deduction provided for by that directive might entail. (18) Even if the exercise of that right to deduct is limited only to taxes corresponding to a transaction subject to VAT, the risk of loss of tax revenue is not in principle completely eliminated as long as the addressee of an invoice incorrectly mentioning VAT could still use that invoice to exercise its right to deduct, pursuant to Article 168(a) of the VAT Directive. (19) In that regard, I recall that, according to Article 178 of that directive, in order to exercise the right of deduction referred to in Article 168(a) of that directive in respect of the supply of goods or services, the taxable person must hold an invoice which complies with the relevant provisions of the VAT Directive. (20) Therefore, the risk of loss of tax revenue could arise because the recipient of an invoice which fulfils all the formal requirements laid down by that directive claims a right to deduct input VAT, although the VAT has been improperly charged to him, since the transaction in question is not subject to VAT.
42.      In that regard, I would recall that the Court has also stated that, in accordance with the principle of VAT neutrality, if a tax is improperly charged, it must be possible to correct this, where the issuer of the invoice shows that he acted in good faith or has eliminated, in sufficient time, the risk of any loss of tax revenue which could have arisen as a result of the right to deduct. (21)
43.      In the present case, in the light of the foregoing considerations, it should be noted that, if the lease agreement was to be regarded as an ‘invoice’ within the meaning of Article 203 of the VAT Directive, Raiffeisen should actually have paid the full amount of VAT due under the lease agreement, namely the sum of EUR 110 056.86, when that agreement was concluded. That is the only way in which the risk of loss of tax revenue – which is the objective pursued by that provision – would have been eliminated, in so far as such a loss could not arise because RED had exercised its right to deduct. Moreover, the fact that both those parties decided to terminate the lease agreement almost four years later would have justified a request for a correction of the VAT in order to obtain a refund based on a pro rata temporis calculation.
44.      In the light of the foregoing, I note, on the one hand, as regards the possibility for the tax authorities to verify that VAT has been correctly paid under Article 203 of the VAT Directive, that the document serving as an invoice must be capable of confirming the exact value of the VAT which the issuer of that document invoiced to the recipient of that document, irrespective of the fact that the issuer of that same document has neither declared nor paid that VAT.
45.      On the other hand, it is clear in particular from the case-law referred to in point 41 of this Opinion that the rationale of Article 203 of the VAT Directive is intrinsically linked to the risk of loss of tax revenue resulting from the exercise of a right of deduction. Accordingly, the substantive requirements of the document serving as an invoice must also be examined from the point of view of assessing the existence of the right to deduct input VAT.
C.      The invoice as evidence of the existence of the right to deduct input VAT
46.      As regards the right to deduct input VAT, according to settled case-law of the Court, the right of taxable persons to deduct from the VAT which they are liable to pay, the VAT due or paid on goods purchased and services received by them as inputs is a fundamental principle of the common system of VAT established by EU legislation. (22)
47.      The Court has repeatedly held that the right to deduction of VAT 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. The right is exercisable immediately in respect of all the taxes charged on transactions relating to inputs. (23)
48.      The deduction system is intended to relieve the operator entirely of the burden of the VAT due or paid in the course of all his economic activities. The common system of VAT therefore ensures that all economic activities, whatever their purpose or results, provided that they are in principle themselves subject to VAT, are taxed in a neutral way. (24)
49.      In that regard, a distinction must be made between the formal and substantive conditions for the exercise of the right to deduct VAT.
50.      As regards the formal conditions for the exercise of that right, it is apparent from Article 178(a) of the VAT Directive that the exercise of the right is subject to holding an invoice drawn up, inter alia, in accordance with Articles 220 to 236 and with Articles 238, 239 and 240 of that directive.
51.      As regards the substantive conditions which must be met in order for the right to deduct VAT to arise, it is apparent, inter alia, from Article 168(a) of the VAT Directive that the goods or the services relied on to give entitlement to that right must be used by the taxable person for the purposes of his own taxed output transactions and that those goods or those services must be supplied by another taxable person as inputs. (25)
52.      The Court has held that the fundamental principle of the neutrality of VAT requires deduction of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable persons have failed to comply with some formal conditions. (26)
53.      Consequently, where the tax authorities have the information necessary to establish that the substantive requirements have been satisfied, they cannot, in relation to the right of the taxable person to deduct that tax, impose additional conditions which may have the effect of rendering that right ineffective for practical purposes. (27)
54.      In the light of those considerations, the Court has held that the tax authorities cannot refuse the right to deduct VAT on the sole ground that an invoice does not satisfy certain conditions required by Article 226 of the VAT Directive if they have available all the information to ascertain whether the substantive conditions for that right are satisfied. (28) The Court has ruled on the question whether, first, invoices mentioning only ‘legal services rendered from [a date] until the present date’ or ‘legal services rendered until the present date’ complied with the requirements of Article 226(6) and (7) of that directive, and also whether the national tax authorities were entitled to refuse the right to deduct VAT solely because those requirements were not satisfied, even though those authorities had available all the necessary information for ascertaining whether the substantive conditions for the exercise of that right were satisfied. (29) Consequently, the Court ruled that Article 178(a) of that directive precludes the national tax authorities from refusing the right to deduct VAT solely because the taxable person holds an invoice which does not satisfy the conditions required by Article 226 of that same directive, even though those authorities have available all the necessary information for ascertaining whether the substantive conditions for the exercise of that right are satisfied. (30) In this respect, the authorities cannot restrict themselves to examining the invoice itself. They must also take account of the additional information provided by the taxable person.
55.      Similarly, the Court has also held that Articles 167, 178(a), 220(1) and 226 of the VAT Directive must be interpreted as precluding national legislation or practice whereby the national authorities deny to a taxable person the right to deduct from the VAT which he is liable to pay the VAT due or paid in respect of services supplied to him on the grounds that the initial invoice, in the possession of the taxable person when the deduction is made, contained an incorrect completion date for the supply of services and the numbering of the subsequently corrected invoice and the credit note cancelling the initial invoice were not sequential, if the material conditions governing deduction are satisfied and, before the tax authority concerned has made a decision, the taxable person has submitted to the tax authority a corrected invoice stating the correct date on which that supply of services was completed, even though the numbering of that invoice and the credit note cancelling the initial invoice are not sequential. (31)
56.      In the dispute in the main proceedings, it is therefore for the referring court to take into account all the information included in the lease agreement at issue in order to ascertain whether the substantive conditions for RED’s right to deduct VAT are satisfied. In this connection, it must be pointed out that it is for the taxable person seeking deduction of VAT to establish that he meets the conditions for eligibility. The tax authorities may thus require the taxable person himself to produce the evidence they consider necessary for determining whether or not the deduction requested should be granted. (32)
57.      In the present case, according to Raiffeisen, the lease agreement could not be classified as an ‘invoice’ because the document did not include, the VAT rate applied and the date of supply of the goods, two details which are expressly provided for in Article 226 of the VAT Directive. From that I deduce that all the other obligatory details were therefore included in the lease agreement and do not require analysis.
58.      On the one hand, as regards the VAT rate applied, it is true that this is an important element of the invoice, which is provided for by Article 226(9) of the VAT Directive. However, in so far as it is common ground between the parties to the main proceedings that the total amount of VAT payable, which is required by Article 226(10) of that directive, was included in the lease agreement, it is for the referring court to ascertain whether that rate of VAT could easily have been deduced from the calculation of the total amount of VAT, or of a contractual clause in the main proceedings referring to the regulatory framework applicable where the VAT applied is shown.
59.      On the other hand, as regards the date of supply of the goods, it is recalled that Article 226(7) of the VAT Directive requires the invoice to show the date on which, inter alia, the supply of goods or services was made or completed. The Court has already explained that the date of supply forming the subject of the invoice makes it possible to check when the chargeable event for tax occurs, and hence to determine the tax provisions which must apply, from a temporal point of view, to the transaction to which that document relates. (33) In that regard, it is necessary, where appropriate, that the annexes to the agreement provide a more detailed description of the supply. (34)
60.      In the present case, it is necessary to ascertain, whether, on the basis of the lease agreement, an authority could have established whether that agreement related to a ‘supply of goods’ or a ‘supply of services’ and, secondly, whether that agreement makes it possible to determine the time of supply.
61.      On the one hand, as regards the question of the characterisation of the sale and lease back transaction, the Court has already ruled that, where a lease agreement relating to immovable property provides either that ownership of that property is to be transferred to the lessee on the expiry of that agreement or that all the essential powers attaching to ownership of that property are to be enjoyed by the lessee (which seems to be the case in this instance) and, in particular, substantially all the rewards and risks incidental to legal ownership of that property are transferred to the lessee, and the present value of the amount of the lease payments is practically identical to the market value of the property, the transaction resulting from that agreement must be treated as an acquisition of capital goods. (35)
62.      On the other hand, as regards the date of supply of that property, I note that the Court has pointed out that the concept of ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner. (36)
63.      While it is for the national court to determine in each individual case, on the basis of the facts of the case, whether a given transaction in respect of property results in the transfer of the right to dispose of that property as owner, the Court may, however, provide the national court with all indications that may assist it in that regard. (37)
64.      In that respect, the Court has already held that sale and lease back transactions, such as those at issue in the main proceedings, are characterised by the combined and simultaneous grant, first, of an ownership right by the taxable person (in the present case, RED) to the financial institution (Raiffeisen) and, secondly, of a lease of real property by that institution to the taxable person. It must therefore be determined whether, in the context of the main proceedings, the grant of the ownership right and of the leasing of real property must be considered separately or together. (38)
65.      In that regard, the Court has ruled that there is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split. (39) However, it is for the national court to assess if, the contractual structure of the transaction notwithstanding, the evidence put before the court discloses the characteristics of a single transaction. (40)
66.      In the present case, it is stated in the order for reference that the sale and lease back transactions at issue in the main proceedings are financial transactions designed to increase RED’s liquidity and that the building at issue in the main proceedings remained in the possession of RED, which used it in an uninterrupted and permanent manner for the purposes of its taxable transactions. Those facts appear to indicate that, subject to verification by the referring court, each of those transactions forms a single transaction, since the creation of the ownership right over the property at issue in the main proceedings is inseparable from the lease of real property covering that same property. (41)
67.      Therefore, it could be considered that the lease agreement contained sufficient evidence related to the date of supply, within the meaning of the case-law cited in point 62 of this Opinion.
68.      In the light of the foregoing considerations, it is quite conceivable that a lease agreement containing sufficient information to allow the tax authorities to monitor payment of the tax due and, if appropriate, the existence of the right to deduct VAT may, in exceptional cases, be regarded as an ‘invoice’ within the meaning of the VAT Directive.
V.      Conclusion
69.      In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Vrhovno sodišče (Supreme Court, Slovenia) as follows:
Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a written agreement may, in exceptional cases, be regarded as an invoice within the meaning of that directive, even if it does not contain all the information required by Chapter 3 (‘Invoicing’) of Title XI of that directive, if that document contains sufficient information to allow the tax authorities to monitor payment of the tax due and, if appropriate, the existence of the right to deduct value added tax.
1      Language of the case: French.
2      Council Directive of 28 November 2006 (OJ 2006 L 347, p. 1; ‘the VAT Directive’).
3      The present case is the third case brought before the Court concerning a transaction classified as ‘sale and lease back’. See, also, judgments of 2 July 2015, NLB Leasing (C‑209/14, EU:C:2015:440; ‘the judgment in NLB Leasing’), and of 27 March 2019, Mydibel (C‑201/18, EU:C:2019:254; ‘the judgment in Mydibel’).
4      The referring court does not specify the reasons for that withdrawal of the right to deduct VAT and, in particular, whether it was due to the termination of the lease agreement. Moreover, as the European Commission rightly observes, it is not apparent from the account of the facts in the order for reference whether RED was denied the right to deduct VAT in respect of the total amount of EUR 110 056.86 which was referred to in the lease agreement, or whether RED enjoyed its right to deduct VAT in respect of the monthly instalments that it was obliged to pay under that agreement during the period of almost four years in which the lease agreement was effective.
5      Moreover, as regards the transaction covered by the second sales contract of the goods at issue, the FURS took the view that the transaction was exempt from VAT and that Raiffeisen’s right to deduct could not therefore be relied upon, although an invoice had been issued setting out the VAT which, ultimately, was not due. As a result, Raiffeisen was required to pay additional VAT amounting to EUR 44 200, together with interest amounting to EUR 11 841.97. According to the FURS, the fact that the property at issue was then sold by Raiffeisen to another purchaser in a transaction subject to VAT was irrelevant, since this was a subsequent event.
6      See, to that effect, judgment of 18 June 2009, Stadeco
(C‑566/07, EU:C:2009:380, paragraphs 26 and 27; ‘the judgment in Stadeco’).
7      See Article 63 of the VAT Directive.
8      The Commission chose to answer the questions by applying the various provisions of the VAT Directive to the facts in the main proceedings. With regard to Article 203 of that directive, the Commission stated that that provision precludes the tax authorities from requiring the supplier of services to pay VAT solely on the ground that the customer of the services has wrongly deducted that VAT on the basis of an agreement concluded with the supplier of services, the latter having failed to draw up an invoice for the supply of services.
9      See, to that effect, judgment of 15 September 2016, Barlis 06 – Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraph 44; ‘the judgment in Barlis’), and Opinion of Advocate General Kokott in Barlis (C‑516/14, EU:C:2016:101, points 90 and 91).
10      Council Directive (EU) 2017/2455 of 5 December 2017 amending [the VAT Directive] and Directive 2009/132/EC as regards certain value added tax obligations for supplies of services and distance sales of goods (OJ 2017 L 348, p. 7) added a new provision, Article 219a, which is not applicable rationae temporis to the facts at issue in the main proceedings. Article 219a(1) of that provision provides that ‘Invoicing shall be subject to the rules applying in the Member State in which the supply of goods or services is deemed to be made, in accordance with the provisions of Title V [of the VAT Directive]’.
11      Judgment of 15 July 2010, Pannon Gép Centrum (C‑368/09, EU:C:2010:441, paragraph 40).
12      See judgment in Barlis  (paragraph 25 and the case-law cited).
13      I would recall that, as regards invoices issued for supplies of goods or services other than those referred to in Article 220 of the VAT Directive, pursuant to Article 221 of that directive, Member States may impose fewer obligations than those laid down, inter alia, in Article 226 of that directive.
14      Judgment in Barlis (paragraph 27).
15      See, by analogy, judgment in Barlis  (paragraph 27), and Opinion of Advocate General Kokott in the same case (EU:C:2016:101, points 30, 32 and 46).
16      Judgment in Stadeco (paragraph 26); and judgments of 31 January 2013, LVK (C‑643/11, EU:C:2013:55, paragraph 42 and operative part; ‘the judgment in LVK’); of 8 May 2019, EN.SA. (C‑712/17, EU:C:2019:374, paragraph 26); and of 18 March 2021, P (Fuel cards) (C‑48/20, EU:C:2021:215, paragraph 26).
17      Judgment in Stadeco (paragraph 27).
18      See, inter alia, judgments in LVK (paragraph 36), and of 18 March 2021, P (Fuel cards) (C‑48/20, EU:C:2021:215, paragraph 26).
19      See, to that effect, judgment in Stadeco (paragraph 29).
20      Namely, Articles 220 to 236 and 238, 239 and 240 of the VAT Directive.
21      Judgments in Stadeco (paragraph 37), and in LVK (paragraph 37); and Opinion of Advocate General Kokott in EN.SA. (C‑712/17, EU:C:2019:35, point 43).
22      See judgment in Barlis  (paragraph 37 and the case-law cited).
23      See judgment in Barlis  (paragraph 38 and the case-law cited).
24      See judgment in Barlis  (paragraph 39 and the case-law cited).
25      See judgment in Barlis  (paragraph 40 and the case-law cited).
26      See judgment in Barlis  (paragraph 42 and the case-law cited).
27      See judgment in Barlis  (paragraph 42 and the case-law cited).
28      See judgment in Barlis  (paragraph 43). See, to that effect, judgment of 1 April 2004, Bockemühl (C‑90/02, EU:C:2004:206), concerning the obligation to hold an invoice which complies with the VAT Directive.
29      See judgment in Barlis (paragraph 24).
30      See judgment in Barlis (paragraph 24).
31      Judgment of 15 July 2010, Pannon Gép Centrum (C‑368/09, EU:C:2010:441 paragraph 45 and operative part).
32      Judgment in Barlis (paragraph 46). It must be stated that the Member States have power to lay down penalties for failure to comply with the formal conditions for the exercise of the right to deduct VAT. In accordance with Article 273 of the VAT Directive, the Member States can adopt measures to ensure the correct collection of VAT and to prevent evasion, provided that those measures do not go further than is necessary to attain those objectives and do not undermine the neutrality of VAT (see judgment in Barlis (paragraph 47)).
33      Judgment in Barlis  (paragraph 30).
34      See, to that effect, judgment in Barlis  (paragraph 34).
35      Judgment in NLB Leasing (paragraphs 26 to 32).
36      Judgment in Mydibel (paragraph 34 and the case-law cited).
37      See, to that effect, judgments in NLB Leasing (paragraph 25), and in Mydibel (paragraph 35).
38      See, to that effect, judgment in Mydibel (paragraphs 36 and 37).
39      See judgment in Mydibel (paragraph 38 and the case-law cited).
40      See judgment in Mydibel (paragraph 39 and the case-law cited).
41      See, to that effect, judgment in Mydibel (paragraph 40).