62020CJ0080
JUDGMENT OF THE COURT (Fifth Chamber)
21 October 2021 (
*1
)
(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Articles 167 to 171 and Article 178(a) – Right to deduct VAT – Refund of VAT to taxable persons established in a Member State other than the Member State of refund – Holding of an invoice – Directive 2008/9/EC – Refusal of the refund application – ‘Cancellation’ of the invoice by the supplier – Issuing of a new invoice – New refund application – Refusal)
In Case C‑80/20,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania), made by decision of 19 December 2019, received at the Court on 12 February 2020, in the proceedings
Wilo Salmson France SAS
v
Agenţia Naţională de Administrare Fiscală – Direcţia Generală Regională a Finanţelor Publice Bucureşti,
Agenţia Naţională de Administrare Fiscală – Direcţia Generală Regională a Finanţelor Publice Bucureşti – Administraţia Fiscală pentru Contribuabili Nerezidenţi,
THE COURT (Fifth Chamber),
composed of: E. Regan, President of the Chamber, C. Lycourgos and I. Jarukaitis (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
Wilo Salmson France SAS, by C. Apostu, avocată,
–
the Romanian Government, by E. Gane and R.I. Haţieganu, acting as Agents,
–
the European Commission, by A. Armenia and R. Lyal, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 22 April 2021,
gives the following
Judgment
1
This request for a preliminary ruling concerns the interpretation of Articles 167 and 178 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2010/45/EU of 13 July 2010 (OJ 2010 L 189, p. 1) (‘the VAT Directive’), and Article 14(1)(a) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23).
2
The request has been made in proceedings between Wilo Salmson France SAS (‘Wilo Salmson’) on one hand, and, on the other hand, the Agenţia Naţională de Administrare Fiscală – Direcţia Generală Regională a Finanţelor Publice Bucureşti (National Agency for Tax Administration – Regional Directorate-General for Public Finance of Bucharest, Romania) and the Agenţia Naţională de Administrare Fiscală – Direcţia Generală Regională a Finanţelor Publice Bucureşti – Administraţia Fiscală pentru Contribuabili Nerezidenţi (National Agency for Tax Administration – Regional Directorate-General for Public Finance of Bucharest – Tax Authority for Non-resident Taxpayers, Romania) (together, ‘the tax authorities’), concerning a decision refusing an application for a refund of value added tax (VAT) made by that company in 2015, in connection with acquisitions of goods in 2012.
Legal context
European Union law
The VAT Directive
3
Article 62 of the VAT Directive defines the ‘chargeable event’ for the purposes of that directive as ‘the occurrence by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled’ and provides that VAT is to become ‘“chargeable” when the tax authority becomes entitled under the law, at a given moment, to claim the tax from the person liable to pay, even though the time of payment may be deferred’.
4
Article 63 of that directive states that ‘the chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied’.
5
Article 167 of that directive provides that ‘a right of deduction shall arise at the time the deductible tax becomes chargeable’.
6
Article 168 of that directive states:
‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:
(a)
the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person;
…’
7
Under Article 169 of the VAT Directive:
‘In addition to the deduction referred to in Article 168, the taxable person shall be entitled to deduct the VAT referred to therein in so far as the goods and services are used for the purposes of the following:
(a)
transactions relating to the activities referred to in the second subparagraph of Article 9(1), carried out outside the Member State in which that tax is due or paid, in respect of which VAT would be deductible if they had been carried out within that Member State;
…’
8
Article 170 of that directive provides:
‘All taxable persons who … are not established in the Member State in which they purchase goods and services or import goods subject to VAT shall be entitled to obtain a refund of that VAT in so far as the goods and services are used for the purposes of the following:
(a)
transactions referred to in Article 169;
…’
9
Article 171(1) of that directive provides that ‘VAT shall be refunded to taxable persons who are not established in the Member State in which they purchase goods and services or import goods subject to VAT but who are established in another Member State, in accordance with the detailed rules laid down in Directive [2008/9]’.
10
Article 178(a) of that directive states:
‘In order to exercise the right of deduction, a taxable person must meet the following conditions:
(a)
for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI …’
11
Before its amendment by Directive 2010/45, Article 178(a) of Directive 2006/112 provided:
‘In order to exercise the right of deduction, a taxable person must meet the following conditions:
(a)
for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Articles 220 to 236 and Articles 238, 239 and 240 …’
12
The first paragraph of Article 179 of the VAT Directive provides:
‘The taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178.’
13
Title X of that directive, entitled ‘Deductions’, contains a Chapter 5, concerning the adjustment of deductions. In Chapter 5, Article 185(1) of that directive states:
‘Adjustment shall, in particular, be made where, after the VAT return is made, some change occurs in the factors used to determine the amount to be deducted, for example where purchases are cancelled or price reductions are obtained.’
14
In the same chapter, Article 186 of that directive states that ‘Member States shall lay down the detailed rules for applying Articles 184 and 185’.
15
Article 218 of the VAT Directive, in Chapter 3, entitled ‘Invoicing’, of Title XI of the VAT Directive, concerning the obligations of taxable persons and certain non-taxable persons, 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.’
16
Under Article 219 of that directive:
‘Any document or message that amends and refers specifically and unambiguously to the initial invoice shall be treated as an invoice.’
Directive 2008/9
17
Article 1 of Directive 2008/9 states that that directive ‘lays down the detailed rules for the refund of [VAT], provided for in Article 170 of [the VAT Directive], to taxable persons not established in the Member State of refund, who meet the conditions laid down in Article 3’.
18
Article 2 of that directive contains the following definitions:
‘For the purposes of this Directive, the following definitions shall apply:
…
3.
“refund period” means the period mentioned in Article 16 covered by the refund application;
…
5.
“applicant” means the taxable person not established in the Member State of refund making the refund application.’
19
Article 3 of that directive states that it is to apply to any taxable person not established in the Member State of refund who meets the conditions listed in that article.
20
Article 5 of that directive provides:
‘Each Member State shall refund to any taxable person not established in the Member State of refund any VAT charged in respect of goods or services supplied to him by other taxable persons in that Member State …, in so far as such goods and services are used for the purposes of the following transactions:
(a)
transactions referred to in Article 169(a) and (b) of [the VAT Directive];
…
Without prejudice to Article 6, for the purposes of this Directive, entitlement to an input tax refund shall be determined pursuant to [the VAT Directive] as applied in the Member State of refund.’
21
Article 8(2) of Directive 2008/9 states:
‘In addition to the information specified in paragraph 1, the refund application shall set out, for each Member State of refund and for each invoice or importation document, the following details:
…
(d) date and number of the invoice or importation document;
…’
22
Article 10 of that directive provides:
‘Without prejudice to requests for information under Article 20, the Member State of refund may require the applicant to submit by electronic means a copy of the invoice or importation document with the refund application where the taxable amount on an invoice or importation document is EUR 1000 or more or the equivalent in national currency. Where the invoice concerns fuel, the threshold is EUR 250 or the equivalent in national currency.’
23
Under the first paragraph of Article 13 of that directive:
‘If subsequent to the submission of the refund application the deductible proportion is adjusted pursuant to Article 175 of [the VAT Directive], the applicant shall make a correction to the amount applied for or already refunded.’
24
Article 14(1)(a) of that directive provides:
‘The refund application shall relate to the following:
(a)
the purchase of goods or services which was invoiced during the refund period, provided that the VAT became chargeable before or at the time of the invoicing, or in respect of which the VAT became chargeable during the refund period, provided that the purchase was invoiced before the tax became chargeable …’
25
Article 15(1) of Directive 2008/9 provides:
‘The refund application shall be submitted to the Member State of establishment at the latest on 30 September of the calendar year following the refund period. The application shall be considered submitted only if the applicant has filled in all the information required under Articles 8, 9 and 11.’
26
Article 20 of Directive 2008/9 states:
‘1.   Where the Member State of refund considers that it does not have all the relevant information on which to make a decision in respect of the whole or part of the refund application, it may request … additional information, in particular from the applicant or from the competent authorities of the Member State of establishment …
If necessary, the Member State of refund may request further additional information.
…
2.   The Member State of refund shall be provided with the information requested under paragraph 1 within one month of the date on which the request reaches the person to whom it is addressed.’
27
Under Article 23 of that directive:
‘1.   Where the refund application is refused in whole or in part, the grounds for refusal shall be notified by the Member State of refund to the applicant together with the decision.
2.   Appeals against decisions to refuse a refund application may be made by the applicant to the competent authorities of the Member State of refund in the forms and within the time limits laid down for appeals in the case of refund applications from persons who are established in that Member State.
…’
Romanian law
28
Article 145(2) of Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 on the Tax Code) (Monitorul Oficial al României, Part I, No 927 of 23 December 2003), in the version applicable to the dispute in the main proceedings (‘the Tax Code’), provided that:
‘(2)   All taxable persons have the right to deduct tax relating to purchases if they are used for the purposes of the following transactions:
(a)
taxable transactions;
(b)
transactions resulting from economic activities for which the place of delivery/supply is deemed to be abroad, provided the tax would be deductible if those transactions were carried out in Romania;
…’
29
Article 146(1)(a) of the Tax Code provided:
‘In order to exercise the right of deduction, a taxable person must meet the following conditions:
(a)
for tax due or paid on goods supplied or to be supplied to him, or on services supplied or to be supplied to him by a taxable person, he must hold an invoice drawn up in accordance with the provisions of Article 155 …’.
30
Article 147b(1)(a) of that code stated that ‘a taxable person not established in Romania but established in another Member State, who is not registered and not required to be registered for VAT purposes in Romania, shall be eligible for a refund of [VAT] paid on imports or acquisitions of goods or services carried out in Romania’.
31
Hotărârea Guvernului nr. 44/2004 (Government Decision No 44/2004) (Monitorul Oficial al României, Part I, No 112 of 6 February 2004) approves the detailed rules for the implementation of the Tax Code, which are set out in the annex to that decision. In the version applicable to the dispute in the main proceedings, those detailed rules (‘the Implementing Rules’) concern, in paragraph 49 thereof, Article 147b of the Tax Code which was then in force. Paragraph 49(1) of the Implementing Rules states:
‘Under Article 147b(1)(a) of the Tax Code, any taxable person not established in Romania but established in another Member State shall be eligible for a refund of [VAT] paid on imports or acquisitions of goods or services carried out in Romania.’
32
Paragraph 49(15)(a) of the Implementing Rules provides for a refund application to be submitted in connection with ‘purchases of goods or services invoiced within the refund period and paid for before the refund application is submitted’ and for ‘invoices not paid before the refund application is submitted to be included in refund applications for the periods in which they were paid’.
33
Paragraph 49(16) of the Implementing Rules states that ‘in addition to the transactions referred to in point 15 the refund application may also relate to invoices or import documents not covered by previous refund applications which concern transactions completed during the calendar year in question’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
34
During 2012, Pompes Salmson SAS, whose seat of economic activity is in France, purchased manufacturing equipment from ZES Zollner Electronic SRL (‘Zollner’), established and registered for VAT purposes in Romania. As Pompes Salmson made that equipment available to Zollner for use in the manufacture of goods to be supplied to it subsequently, the equipment did not leave Romanian territory.
35
In that same year, Zollner issued invoices for those purchases, on which VAT was charged. On the basis of those invoices, Pompes Salmson applied for a refund of the VAT paid in Romania relating to the period from 1 January to 31 December 2012, in accordance with Directive 2008/9 and Article 147b(1)(a) of the Tax Code, read together with paragraph 49 of the Implementing Rules. That application was refused by decision of 14 January 2014, ‘on grounds relating to the documents accompanying the application and to the non-compliance of the attached invoices’ (‘the decision of 14 January 2014’). Zollner then cancelled the invoices initially issued in 2012. It issued new invoices in 2015 for the same purchases.
36
In 2014, Pompes Salmson merged with Wilo France SAS. In 2015, having taken over all the rights and obligations of Pompes Salmson, the merged entity, named Wilo Salmson France, lodged, on the basis of new invoices drawn up by Zollner, a new application for a refund of the VAT which had been paid in Romania when the tooling in question was purchased, covering the period between 1 August and 31 October 2015. That application was refused by the Romanian authorities by decision of 12 May 2016, on the ground that Wilo Salmson had not complied with paragraph 49(16) of the Implementing Rules and had already applied for a refund of the VAT entered on those invoices.
37
Wilo Salmson lodged a complaint against that decision with the Direcţia Generală Regională a Finanţelor Publice Bucureşti – Administraţia Fiscală pentru Contribuabili Nerezidenţi (Regional Directorate-General for Public Finance of Bucharest – Tax Authority for Non-resident Taxpayers, Romania). By decision of 2 September 2016, that complaint was dismissed on the ground that the VAT in respect of which the refund was sought had been the subject matter of a previous refund application and that the transactions in respect of which the refund was sought related not to 2015, but to 2012.
38
Wilo Salmson then brought an action before the Tribunalul Bucureşti (Regional Court, Bucharest, Romania), the referring court, seeking annulment of that decision of 2 September 2016, as well as annulment of the decision of 12 May 2016 refusing the application for a refund of the sum of 449 538.38 Romanian lei (RON) (approximately EUR 91310), representing the VAT refund sought for the period from 1 August 2015 to 31 October 2015.
39
The referring court states that it must determine whether it is possible to obtain in 2015 a refund of VAT paid on purchases made in 2012 in respect of which valid tax invoices were not issued until 2015. It considers that the situation of Wilo Salmson is atypical of the cases envisaged in Directive 2008/9 or already examined by the Court, since (i) the invoices drawn up by Zollner in 2012 were cancelled, as the Romanian tax authorities found them to be irregular, (ii) valid invoices for the same purchases were issued only in 2015, (iii) Wilo Salmson exercised its right to a refund by means of the refund application submitted in 2015, which contained the invoices drawn up in 2015, and (iv) Wilo Salmson had not previously obtained the refund sought.
40
The referring court submits that the VAT Directive does not govern the time limit for exercising the right of deduction and that it is therefore necessary to clarify whether the date from which that time limit runs may be determined exclusively by reference to the date of supply of the goods in question, disregarding any other relevant circumstances. In the light of Articles 167 and 178 of that directive and the fact that the issuing of an invoice is beyond the control of the holder of that right, it is necessary for the Court to clarify whether, under the first alternative in Article 14(1)(a) of Directive 2008/9, an application for a refund of VAT may cover purchases of goods or services invoiced during the refund period, irrespective of whether the VAT relating thereto became chargeable during that period or earlier.
41
With regard to its first two questions, the referring court points out that the Romanian tax authorities have not drawn a distinction between the date of issue of the invoices as a procedural element and the date on which the VAT became chargeable as a substantive element, although those two dates should have distinct effects for tax purposes, and the right of deduction cannot be exercised in the absence of an invoice drawn up in accordance with the statutory requirements. Although it is true that the VAT must have become chargeable before the invoice was issued, or at the time of invoicing, it is, however, the time when the invoice was issued that should be relevant as regards making a refund application.
42
With regard to its third and fourth questions, the referring court states that the Romanian tax authorities took the view that the invoices drawn up in 2015 for purchases made in 2012 could not be the subject matter of a refund application relating to 2015 because of the existence of the earlier invoices. However, those earlier invoices had been unilaterally cancelled by Zollner, which was equivalent to their annulment, and the holder of the right of deduction has no legal means of requiring the supplier to draw up a new invoice.
43
Moreover, in the light of Articles 169 and 178 of the VAT Directive, the first alternative in Article 14(1)(a) of Directive 2008/9 and the need to hold a valid invoice in order to exercise the right to a refund, a VAT refund application should be based exclusively on invoices issued during the ‘refund period’, the only condition imposed being that the VAT became chargeable before or at the time of the invoicing.
44
Consequently, since the invoices drawn up in 2012 were cancelled by Zollner, only the new invoices drawn up in 2015 could provide evidence of the purchases and support the refund application at issue in the main proceedings. Accordingly, the latter invoices alone should, according to the referring court, represent the ‘procedural point of reference’ for applying for a refund under Directive 2008/9.
45
In those circumstances, the Tribunalul Bucureşti (Regional Court, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
As regards the interpretation of Article 167 of [the VAT Directive], read together with Article 178 thereof, is there a distinction between the moment the right of deduction arises and the moment it is exercised with regard to the way in which the system of VAT operates?
To that end, it is necessary to clarify whether the right to deduct VAT may be exercised where no (valid) tax invoice has been issued for purchases of goods.
(2)
As regards the interpretation of Articles 167 and 178 of [the VAT Directive], read together with the first [alternative] in Article 14(1)(a) of [Directive 2008/9], what is the procedural point of reference for determining the lawfulness of the exercise of the right to a refund of VAT?
To that end, it is necessary to clarify whether an application for a refund may be made in respect of VAT which became chargeable prior to the “refund period” but which was invoiced during the refund period.
(3)
As regards the interpretation of the first [alternative] in Article 14(1)(a) of [Directive 2008/9], read together with [Articles 167 and 178] of [the VAT Directive], what are the effects of the annulment of invoices and the issuing of new invoices in respect of purchases of goods made before the “refund period” on the exercise of the right to a refund of the VAT relating to those purchases?
To that end, it is necessary to clarify whether, in the event of the annulment, by the supplier, of the invoices initially issued for the purchase of goods and the issuing of new invoices by that supplier at a later date, the exercise of the right of the recipient to apply for a refund of the VAT relating to the purchases is to be linked to the date of the new invoices, in a situation where the annulment of the initial invoices and the issuing of the new invoices is not within the recipient’s control but is exclusively at the supplier’s discretion.
(4)
May national legislation make the refund of VAT granted under [Directive 2008/9] conditional upon the chargeability of the VAT in a situation where a corrected invoice is issued during the application period?’
The questions referred
Admissibility
46
The Romanian Government argues that the questions raised are inadmissible. On the one hand, they are based on an erroneous and incomplete presentation of the facts giving rise to the dispute in the main proceedings, so that if those facts were corrected and considered as a whole, the questions would become unnecessary and irrelevant to the resolution of the dispute. On the other hand, that presentation of the facts merely reproduces the point of view of a single party to the dispute, with the result that the referring court failed to fulfil its obligation to clarify the facts before bringing the matter before the Court and to set out the reasons why it is enquiring about the interpretation of EU law and considers that an answer from the Court is necessary in order to resolve the dispute before it.
47
It should be borne in mind, in the first place, that Article 267 TFEU establishes a procedure for direct cooperation between the Court and the courts of the Member States. In that procedure, which is based on a clear separation of functions between the national courts and the Court, any finding and assessment of the facts of the case is a matter for the national court, which must determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, whilst the Court is empowered to give rulings on the interpretation or the validity of an EU provision only in the light of the factual and legal situation as described by the referring court (see, to that effect, judgments of 20 December 2017, Schweppes, C‑291/16, EU:C:2017:990, paragraph 21 and the case-law cited, and of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 28 and the case-law cited).
48
Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24 and the case-law cited, and of 15 July 2021, The Department for Communities in Northern Ireland, C‑709/20, EU:C:2021:602, paragraph 54 and the case-law cited).
49
Since questions concerning EU law thus enjoy a presumption of relevance, the Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation, or the determination of validity, of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25 and the case-law cited, and of 15 July 2021, The Department for Communities in Northern Ireland, C‑709/20, EU:C:2021:602, paragraph 55 and the case-law cited).
50
In the present case, the line of argument which the Romanian Government puts forward to establish that the questions raised are not necessary for the resolution of the dispute in the main proceedings is based on a critical analysis of the assessment of the facts undertaken by the referring court, which is alleged to be erroneous and incomplete. It is not, however, for the Court to call that assessment into question since it falls, in the framework of these proceedings, within the jurisdiction of the national court. That line of argument is therefore not sufficient to rebut the presumption of relevance mentioned in the previous paragraph (see, by analogy, judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 26 and the case-law cited).
51
In the second place, in so far as the Romanian Government states that the presentation of the facts by the referring court constitutes a restatement of the claims made by one of the parties to the main proceedings, it must be observed that that circumstance alone, even if it were true, does not establish that, by proceeding in that way, the referring court failed to fulfil its obligation to set out in the order for reference, in accordance with Article 94 of the Rules of Procedure of the Court of Justice, the facts on which the questions are based or the reasons which prompted it to enquire about the interpretation of the provisions of EU law referred to in the questions raised or its reasons for considering that an answer from the Court is necessary in order to resolve the dispute before it.
52
To the contrary, as is apparent from paragraphs 39 to 44 of the present judgment, the order for reference makes it possible to understand the reasons why the referring court is uncertain as to the scope of various provisions of the VAT Directive and Directive 2008/9 and contains sufficient information to enable the Court to provide it with the guidance on interpreting EU law which it needs in order to resolve the dispute before it.
53
In that regard, it must also be recalled that neither Article 267 TFEU nor any other provision of EU law requires a referring court, after the delivery of the preliminary ruling, to alter the findings of fact or law made in the request for a preliminary ruling, nor do they prohibit a referring court from doing so, provided that the referring court gives full effect to the interpretation of EU law adopted by the Court (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraphs 28 to 30).
54
In the light of the foregoing, it is clear that the questions raised are admissible.
Substance
Preliminary observations
55
As a preliminary point, it must be observed that the referring court, which alone has available to it all the relevant matters of fact and national law, seeks from the Court an interpretation of the provisions of Directive 2006/112, in the version resulting from the amendments made by Directive 2010/45, which, according to the second subparagraph of Article 2(1) of Directive 2010/45, were applicable from 1 January 2013.
56
However, it is clear from the order for reference that the supplies of goods which gave rise to the dispute in the main proceedings were carried out in 2012; that documents regarded as invoices relating to those supplies were issued in 2012, then found to be ‘non-compliant’ by the decision of 14 January 2014 and were subsequently cancelled in 2014 or 2015; and that, lastly, new documents regarded as invoices relating to those supplies were issued in 2015.
57
Moreover, on the one hand, in accordance with Article 63 of the VAT Directive, the chargeable event is to occur and VAT is to become chargeable when the goods or the services are supplied. On the other hand, as regards the right to deduct under the VAT Directive, of which the right to a refund is the counterpart (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 36 and the case-law cited), there is a direct substantive and temporal link between that right to deduct and the chargeability of the input VAT due or paid in respect of goods and services (see, to that effect, judgment of 27 June 2018, Varna Holideis, C‑364/17, EU:C:2018:500, paragraph 22), since Article 167 of that directive provides that a right of deduction is to arise at the time the deductible tax becomes chargeable.
58
Articles 64 and 65 of the VAT Directive also lay down different rules on chargeability, applicable in the circumstances defined in those articles, while Article 66 of that directive allows Member States, by way of derogation from Articles 63 to 65, to provide that VAT is to become chargeable in respect of certain transactions or certain categories of taxable person at one of the times specified in Article 66 of that directive.
59
It will therefore be for the referring court, in the light of all the relevant matters of fact and national law available to it, to determine whether the provisions of Directive 2006/112 resulting from the amendments made by Directive 2010/45 are indeed those applicable to the resolution of each of the various aspects of the dispute before it.
60
However, it must be observed, in that regard, that the only amendment made by Directive 2010/45 to a provision of Directive 2006/112 which is relevant to the Court’s analysis of the present case relates to Article 178(a) of Directive 2006/112, a provision which prior to that amendment, referred not to the holding of an invoice ‘drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI’ of the VAT Directive, but to the holding of an invoice drawn up ‘in accordance with Articles 220 to 236 and Articles 238, 239 and 240’ of Directive 2006/112.
61
While it is true that both versions make references to the provisions of each of those directives laying down, in essence, the circumstances and conditions in which invoices must be issued, the content of those invoices, the possibility of issuing or communicating electronic invoices and the possibility for Member States to adopt, in certain circumstances, simplification measures, those provisions are nevertheless not identical. However, their differences in content have no bearing on the analysis which the Court is called upon to carry out in the present case, so that the answers which will be provided in the present judgment will be applicable even if the referring court ultimately considers that one or more of the points at issue which it is required to resolve falls within the temporal scope not of the provisions of the VAT Directive but of the provisions of Directive 2006/112 in its version prior to the amendments made by Directive 2010/45.
First question
62
With regard to the first question raised, it must be observed at the outset that what is at issue in the main proceedings is the situation of a taxable person established in a Member State other than that in which the purchases of the goods in question were made. The case in the main proceedings therefore concerns not the right to deduct VAT in itself, referred to in Article 168 of the VAT Directive, but the right to a refund of that tax, as provided for in Article 170 of that directive, which in turn refers to the transactions referred to in Article 169 thereof.
63
It must also be recalled that Article 171(1) of that directive provides that VAT is to be refunded to taxable persons who are not established in the Member State in which they inter alia purchase goods and services subject to VAT but who are established in another Member State, in accordance with the detailed rules laid down in Directive 2008/9. Nevertheless, it is not the purpose of that directive to define the conditions for exercising the right to a refund, nor the extent of that right. The second subparagraph of Article 5 of Directive 2008/9 provides that, without prejudice to Article 6, and for the purposes of that directive, entitlement to a refund of VAT which is paid as an input tax is to be determined pursuant to the VAT Directive as applied in the Member State of refund (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 35).
64
In those circumstances, it must be understood that, by its first question, the referring court asks, in essence, whether Articles 167 to 171 and 178 of the VAT Directive and Directive 2008/9 must be interpreted as meaning that the right to a refund of the VAT charged on a supply of goods can be exercised by a taxable person not established in the Member State of refund but established in another Member State, if that taxable person does not hold an invoice, within the meaning of the VAT Directive, relating to the purchase of the goods concerned.
65
According to Article 1 thereof, the purpose of Directive 2008/9 is to lay down the detailed rules for the refund of VAT, provided for in Article 170 of the VAT Directive, to taxable persons not established in the Member State of refund, who meet the conditions laid down in Article 3 of Directive 2008/9; however, the conditions for exercising the right to a refund and the extent of that right are, in accordance with the provisions of that directive and as already recalled in paragraph 63 of the present judgment, determined pursuant to the VAT Directive as applied in the Member State of refund.
66
Consequently, the right of a taxable person established in a Member State to obtain the refund of VAT paid in another Member State, in the manner governed by Directive 2008/9, is the counterpart of such a person’s right established by the VAT Directive to deduct input VAT in his own Member State (judgments of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 36 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 36 and the case-law cited).
67
Furthermore, like the right to deduct, the right to a refund is a fundamental principle of the common system of VAT established by EU legislation, which 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 neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves, in principle, subject to VAT (judgments of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 35 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 45).
68
The right to deduct and, accordingly, to a refund is an integral part of the VAT scheme and in principle may not be limited. In particular, the right to deduct is exercisable immediately in respect of all taxes charged on input transactions (judgments of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 36 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 46).
69
The right to a refund of VAT, like the right to deduct it, is, however, subject to compliance with both substantive and formal requirements or conditions (see, to that effect, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 40 and the case-law cited).
70
As regards the substantive requirements or conditions governing the exercise of that right to a refund, it follows from Article 169(a) and Article 170 of the VAT Directive that, for the right to a refund to be available, first, the person concerned must be a ‘taxable person’, within the meaning of that directive, who is not established in the Member State in which he purchases goods or services or imports goods subject to VAT and, secondly, the goods or services relied on to give entitlement to the right to a refund of VAT must be used by the taxable person for his output transactions conducted outside the Member State in which that VAT is due or already paid, which would be eligible for deduction if those transactions had been conducted in that Member State (see, to that effect, judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 33). That taxable person must, moreover, satisfy the cumulative conditions set out in Article 3 of Directive 2008/9 (see, to that effect, judgment of 11 June 2020, CHEP Equipment Pooling, C‑242/19, EU:C:2020:466, paragraph 55 and the case-law cited).
71
As to the detailed rules governing the exercise of the right to a refund, which may be considered formal requirements or conditions, it should be noted that, as regards the right to deduct VAT, Article 178(a) of the VAT Directive provides that, for the purposes of the deduction referred to in Article 168(a) thereof, the taxable person must hold an invoice drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI of that directive (see, by analogy, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 42 and the case-law cited).
72
The Court inferred from this that, although, under Article 167 of the VAT Directive, the right to deduct VAT arises at the same time as the tax becomes chargeable, Article 178 of that directive provides that that right can be exercised only once the taxable person holds an invoice (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 43 and the case-law cited). The Court has further held that the same applies to the exercise of the right to a refund (see, to that effect, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraphs 49 and 50).
73
As regards the detailed rules for the refund of VAT, it must be recalled, first of all, that, under Article 8(2)(d) of Directive 2008/9, the VAT refund application is to set out, for each Member State of refund and for each invoice or importation document, ‘the date and number of the invoice or importation document’. Next, according to the second sentence of Article 15(1) of that directive, the application for a refund is to be considered submitted only if the applicant has filled in all the information required inter alia under Article 8 thereof. Lastly, pursuant to the first sentence of Article 10 thereof, the Member State of refund may require the applicant, within the meaning of that directive, to submit by electronic means a copy of the invoice or importation document with the refund application where the taxable amount on an invoice or importation document is EUR 1000 or more or the equivalent in national currency.
74
Those elements also illustrate that, in order to exercise the right to a refund of VAT, as provided for by Articles 170 and 171 of the VAT Directive and in respect of which detailed rules are laid down by Directive 2008/9, it is necessary for a taxable person not established in the Member State of refund but established in another Member State to have the invoice relating to the purchases of the goods or services concerned.
75
In that regard, as is already clear, in essence, from paragraphs 71 and 72 of the present judgment, Article 178(a) of the VAT Directive states that, in order to make the deduction pursuant to Article 168(a) thereof, a taxable person must, in respect of the supply of goods or services, hold an invoice drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI of that directive; moreover, that requirement is also applicable, under the last paragraph of Article 5 of Directive 2008/9, to the right to a refund provided for in Article 170 of the VAT Directive. Articles 218 and 219 of the latter directive further state, respectively, that Member States are to 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 thereof and that any document or message that amends and refers specifically and unambiguously to the initial invoice is to be treated as an invoice.
76
It should nevertheless be recalled that the fundamental principle of VAT neutrality requires the deduction or refund of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (judgments of 18 November 2020, Commission v Germany (VAT refund – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 80 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 47).
77
The position may, however, be different if non-compliance with such formal requirements effectively prevents the production of conclusive evidence that the substantive requirements have been satisfied (judgments of 18 November 2020, Commission v Germany (VAT refund – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 81 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 48).
78
Where the tax authority has the information necessary to establish that the taxable person is liable for VAT, it cannot impose additional conditions which may have the effect of rendering the right to deduct or to a refund of VAT ineffective (judgments of 18 November 2020, Commission v Germany (VAT refund – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 82 and the case-law cited, and of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraph 53).
79
In that regard, it must be observed that Article 20 of Directive 2008/9 offers the Member State of refund, where the latter considers that it does not have the relevant information on which to make a decision in respect of the whole or part of such an application, the opportunity to request, in particular from the taxable person or from the competent authorities of the Member State of establishment, additional information, which must be provided within one month of the date on which the request reaches the person to whom it is addressed.
80
It must also be observed that the prevention of tax evasion, avoidance and abuse is undoubtedly an objective recognised and encouraged by the provisions of EU law on VAT. However, the measures adopted by the Member States must not go further than necessary to attain such objectives. Therefore, they cannot be used in such a way that they would have the effect of systematically undermining the right to a refund of VAT and, consequently, the neutrality of VAT (see, by analogy, judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 48 and the case-law cited, and judgment of 18 November 2020, Commission v Germany (VAT refund – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 83).
81
Consequently, only if a document contains such serious defects that they deprive the national tax authorities of the information necessary to support a refund application can such a document be regarded as not constituting an ‘invoice’, within the meaning of the VAT Directive, with the result that a taxable person coming into the possession of such a document would be unable to exercise the right to a refund.
82
In the light of all the foregoing considerations, the answer to the first question is that Articles 167 to 171 and 178 of the VAT Directive and Directive 2008/9 must be interpreted as meaning that the right to a refund of the VAT charged on a supply of goods cannot be exercised by a taxable person not established in the Member State of refund but established in another Member State, if that taxable person does not hold an invoice, within the meaning of the VAT Directive, relating to the purchase of the goods concerned. Only if a document contains such serious defects that they deprive the national tax authorities of the information necessary to support a refund application can such a document be regarded as not constituting an ‘invoice’, within the meaning of the VAT Directive.
The second and fourth questions
83
By its second and fourth questions, which should be examined together, the referring court asks, in essence, whether Articles 167 to 171 and 178 of the VAT Directive and the first alternative in Article 14(1)(a) of Directive 2008/9 must be interpreted as precluding an application for a refund of VAT relating to a given refund period from being refused on the ground that that VAT became chargeable during an earlier refund period, although it was invoiced only during that given period.
84
As has already been pointed out in paragraph 57 of the present judgment, it follows from Article 63 of the VAT Directive that the chargeable event is to occur and VAT is to become chargeable when the goods or the services are supplied. Moreover, according to Article 167 and the first paragraph of Article 179 of that directive, the right to deduct must, in principle, be exercised during the same period as that during which it has arisen, namely once the tax becomes due (judgment of 21 March 2018, Volkswagen, C‑533/16, EU:C:2018:204, paragraph 44).
85
However, first, as is clear from paragraph 82 of the present judgment, in order for a taxable person not established in the Member State of refund but established in another Member State to be able to exercise the right to a refund of the VAT charged on a supply of goods or services, as provided for by Articles 170 and 171 of the VAT Directive and by Directive 2008/9, it is necessary for that taxable person to hold an invoice, within the meaning of the VAT Directive, relating to the purchase of the goods or services concerned.
86
Secondly, Article 14(1)(a) of Directive 2008/9 provides that the refund application is to relate to the purchase of goods or services which was invoiced during the refund period, provided that the VAT became chargeable before or at the time of the invoicing, or in respect of which the VAT became chargeable during the refund period, provided that the purchase was invoiced before the tax became chargeable.
87
It follows from those considerations that, in the case of taxable persons not established in the Member State of refund but established in another Member State, and provided that the VAT became chargeable before or at the time of the invoicing, it is the date on which the taxable person came into the possession of an invoice, within the meaning of the VAT Directive, relating to the purchase of the goods or services in question that determines the purchases to which a refund application may relate. Consequently, a VAT refund application cannot be refused on the sole ground that the VAT which is charged on a supply of goods or services and for which a refund is sought became chargeable during a given refund period, although that purchase was invoiced only during a subsequent refund period.
88
In the light of all the foregoing, the answer to the second and fourth questions is that Articles 167 to 171 and 178 of the VAT Directive and the first alternative in Article 14(1)(a) of Directive 2008/9 must be interpreted as precluding an application for a refund of VAT relating to a given refund period from being refused on the sole ground that that VAT became chargeable during an earlier refund period, although it was invoiced only during that given period.
The third question
89
As a preliminary point, it must be observed, first of all, that the third question is implicitly based on the premiss that the documents at issue in the main proceedings, which were held by the taxable person in 2012, and which formed the basis of the refund application that was refused by the decision of 14 January 2014, were indeed invoices, within the meaning of the VAT Directive. If they were not, it follows from the answers to the first, second and fourth questions, set out in paragraphs 82 and 88 of this judgment, that that taxable person was unable, before 2015, to exercise his right to a refund, since only in that year did he come into the possession of such invoices. In such circumstances, that third question would not be relevant to the resolution of the dispute in the main proceedings.
90
Next, it is clear from the order for reference that the cancellation of an invoice by a supplier of goods has the same effect under national law as its annulment. However, it is not apparent from that order that the invoice was cancelled by mutual agreement; nor is it apparent from that order that the transactions carried out in 2012 and covered by the invoices drawn up in 2015 were themselves cancelled or that a refund of the price paid was made as a result.
91
Finally, there is nothing in the order for reference indicating that the decision of 14 January 2014 was challenged by the taxable person, which, furthermore, is not even mentioned by Wilo Salmson in the observations that it submitted to the Court. Therefore, it is appropriate, subject to the verifications to be carried out by the referring court, to assume that, when Zollner made the cancellation at issue in the main proceedings and issued new invoices, that decision had become final, as indeed the Romanian Government maintains in its observations to the Court.
92
In those circumstances, it must be understood that, by its third question, the referring court asks, in essence, whether Articles 167 to 171 and 178 of the VAT Directive and Directive 2008/9 must be interpreted as meaning that the unilateral cancellation of an invoice by a supplier, after the Member State of refund has adopted a decision refusing the refund application based on that invoice, and although that decision has already become final, followed by the issuing by that supplier, during a subsequent refund period, of a new invoice relating to the same supplies, which are not called into question, has an effect on the existence of a right to a VAT refund which has already been exercised and on the period in respect of which that right must be exercised.
93
It must be observed that Article 15(1) of Directive 2008/9 provides that the refund application is to be submitted to the Member State of establishment ‘at the latest on 30 September of the calendar year following the refund period’. That period is a limitation period, failure to comply with which brings about the forfeiture of the right to a VAT refund (see, to that effect, judgments of 21 June 2012, Elsacom, C‑294/11, EU:C:2012:382, paragraphs 26 and 33, and of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 39). If it were possible to make an application for the refund of VAT without any temporal limit, that would be contrary to the principle of legal certainty, which requires the tax position of the taxable person, having regard to his rights and obligations vis-à-vis the tax authorities, not to be open to challenge indefinitely (see, by analogy, judgment of 21 June 2012, Elsacom, C‑294/11, EU:C:2012:382, paragraph 29 and the case-law cited).
94
Furthermore, in accordance with Article 23(1) of Directive 2008/9, where the refund application is refused in whole or in part, the grounds for refusal are to be notified by the Member State of refund to the applicant, within the meaning of that directive, together with the decision; in addition, in accordance with Article 23(2) of Directive 2008/9, appeals against decisions to refuse a refund application may be made by the applicant to the competent authorities of the Member State of refund in the forms and within the time limits laid down for appeals in the case of refund applications from persons who are established in that Member State.
95
In that regard, the Court has stated that it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the authorities concerned. Such periods are not by their nature liable to make it virtually impossible or excessively difficult to exercise the rights conferred by EU law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (judgments of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraph 42 and the case-law cited, and of 2 July 2020, Terracult, C‑835/18, EU:C:2020:520, paragraph 32 and the case-law cited).
96
As the Advocate General also pointed out, in essence, in points 100 and 101 of her Opinion, accepting, in circumstances such as those described in paragraph 92 of the present judgment, that the unilateral cancellation of an invoice by a supplier, after a decision to refuse an initial refund application based on that invoice has become final, followed by replacement of that invoice with a new invoice relating to the same purchases, enables a taxable person, on the basis of that new invoice, to reapply for a refund of the VAT relating to the same purchases in connection with a subsequent refund period, would allow circumvention of both the limitation period laid down in Article 15(1) of Directive 2008/9 for submitting a refund application and the time limit for making an appeal against that refusal decision, laid down by the Member State concerned under Article 23(2) thereof, thereby depriving those provisions of all practical effect and undermining legal certainty.
97
Moreover, it is true, first, that the VAT Directive provides for the possibility of adjusting the deductions initially made where they are higher or lower than those which the taxable person was entitled to make, in accordance with the provisions of Chapter 5 of Title X of that directive. Accordingly, Article 185 of that directive refers in particular to cases of cancelled purchases, the detailed rules for applying that article being determined by the Member States, in accordance with Article 186 of that directive. Furthermore, as is apparent from Article 219 thereof, that directive provides for the possibility of correcting an invoice, in particular where it is incorrect or certain mandatory details have been omitted from it (see, to that effect, judgment of 15 September 2016, Senatex, C‑518/14, EU:C:2016:691, paragraphs 32 and 34 and the case-law cited). Secondly, Article 13 of Directive 2008/9 allows a refund application to be corrected where, after it has been submitted, the deductible proportion is adjusted pursuant to Article 175 of the VAT Directive.
98
However, it must be observed that circumstances such as those described in paragraph 92 of the present judgment in no way suggest that what is at issue in this case is an adjustment of the right to a refund as a result of which a new refund application was submitted, or even a correction of invoices issued during an earlier refund period, since no such indication is provided by the referring court in the present case and the third question raised is based, on the contrary and as already stated in paragraph 89 of the present judgment, on the premiss that the right to a refund could be effectively exercised on the basis of the initial invoices.
99
In those circumstances, the case-law of the Court on the adjustment of deductions or the possible retroactive effect of corrected invoices cannot overturn the finding made in paragraph 96 of the present judgment.
100
Consequently, in the light of all the foregoing considerations, the answer to the third question is that Articles 167 to 171 and 178 of the VAT Directive and Directive 2008/9 must be interpreted as meaning that the unilateral cancellation of an invoice by a supplier, after the Member State of refund has adopted a decision refusing the VAT refund application based on that invoice, and although that decision has already become final, followed by the issuing by that supplier, during a subsequent refund period, of a new invoice relating to the same supplies, which are not called into question, has no effect on the existence of a right to a VAT refund which has already been exercised or on the period in respect of which that right must be exercised.
Costs
101
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
1.
Articles 167 to 171 and 178 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112, to taxable persons not established in the Member State of refund but established in another Member State must be interpreted as meaning that the right to a refund of the value added tax (VAT) charged on a supply of goods cannot be exercised by a taxable person not established in the Member State of refund but established in another Member State, if that taxable person does not hold an invoice, within the meaning of Directive 2006/112, as amended by Directive 2010/45, relating to the purchase of the goods concerned. Only if a document contains such serious defects that they deprive the national tax authorities of the information necessary to support a refund application can such a document be regarded as not constituting an ‘invoice’, within the meaning of Directive 2006/112, as amended by Directive 2010/45.
2.
Articles 167 to 171 and 178 of Directive 2006/112, as amended by Directive 2010/45, and the first alternative in Article 14(1)(a) of Directive 2008/9 must be interpreted as precluding an application for a refund of VAT relating to a given refund period from being refused on the sole ground that that VAT became chargeable during an earlier refund period, although it was invoiced only during that given period.
3.
Articles 167 to 171 and 178 of Directive 2006/112, as amended by Directive 2010/45, and Directive 2008/9 must be interpreted as meaning that the unilateral cancellation of an invoice by a supplier, after the Member State of refund has adopted a decision refusing the VAT refund application based on that invoice, and although that decision has already become final, followed by the issuing by that supplier, during a subsequent refund period, of a new invoice relating to the same supplies, which are not called into question, has no effect on the existence of a right to a VAT refund which has already been exercised or on the period in respect of which that right must be exercised.
[Signatures]
(
*1
)	Language of the case: Romanian.