Provisional text
JUDGMENT OF THE COURT (Ninth Chamber)
12 March 2026 (*)
( Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Refund of VAT – Directive 2008/9/EC – Articles 2, 15 and 23 – Principles of VAT neutrality, effectiveness and proportionality – Taxable person established in a Member State other than the Member State of VAT refund – Application for VAT refund – Technical fault in the electronic transmission of the application – Failure to act on the part of the tax authorities of the Member State of refund to which the application was made – Final judicial decision – Res judicata )
In Case C‑527/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Corte di Giustizia Tributaria di primo grado di Pescara (Tax Court of First Instance, Pescara, Italy), made by decision of 19 July 2024, received at the Court on 31 July 2024, in the proceedings
Harry et Associés Sarl
v
Agenzia delle entrate – Riscossione – Pescara,
Agenzia delle entrate – Centro operativo di Pescara,
THE COURT (Ninth Chamber),
composed of M. Condinanzi, President of the Chamber, N. Jääskinen and A. Kornezov (Rapporteur), Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Harry et Associés Sarl, by L. Del Federico, avvocato,
–        the Italian Government, by S. Fiorentino, acting as Agent, and by G.M. De Socio and A. Giovannini, avvocati dello Stato,
–        the European Commission, by P. Carlin and F. Moro, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 167 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 2008/8/EU of 12 February 2008 (OJ 2008 L 44, p. 1) (‘the VAT Directive’), read in the light of the principles of fiscal neutrality and proportionality.
2        The request has been made in proceedings between, on the one hand, Harry et Associés Sarl, a company incorporated under French law, and, on the other, the Agenzia delle entrate – Riscossione – Pescara (Tax Office – Collection service – Pescara, Italy) and the Agenzia delle entrate – Centro Operativo di Pescara (Tax Office – Operational centre, Pescara, Italy) (‘COP’), concerning an application for refund of value added tax (VAT).
Legal context
European Union law
The VAT Directive
3        Article 167 of the VAT Directive provides:
‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’
4        Article 169 of that directive provides:
‘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;
(b)      transactions which are exempt pursuant to Articles 138, 142 or 144, Articles 146 to 149, Articles 151, 152, 153 or 156, Article 157(1)(b), Articles 158 to 161 or Article 164;
(c)      transactions which are exempt pursuant to points (a) to (f) of Article 135(1), where the customer is established outside the [European] Community or where those transactions relate directly to goods to be exported out of the Community.’
5        Under Article 170 of that directive:
‘All taxable persons who, within the meaning of …
Article 2(1) and Article 3 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/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23)] and Article 171 of this Directive, 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;
(b)      transactions for which the tax is solely payable by the customer in accordance with Articles 194 to 197 or Article 199.’
6        Article 171(1) of the VAT Directive provides:
‘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].’
Directive 2008/9
7        Recital 3 of Directive 2008/9 states:
‘The new procedure should enhance the position of businesses since the Member States shall be liable to pay interest if the refund is made late and the right of appeal by businesses will be strengthened.’
8        Article 1 of that directive provides:
‘This 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.’
9        Article 2 of Directive 2008/9 provides:
‘For the purposes of this Directive, the following definitions shall apply:
…
4.      “refund application” means the application for refund of VAT charged in the Member State of refund to the taxable person not established in the Member State of refund in respect of goods or services supplied to him by other taxable persons in that Member State or in respect of the importation of goods into that Member State’.
10      Article 3 of that directive provides:
‘This Directive shall apply to any taxable person not established in the Member State of refund who meets the following conditions:
(a)      during the refund period, he has not had in the Member State of refund, the seat of his economic activity, or a fixed establishment from which business transactions were effected, or, if no such seat or fixed establishment existed, his domicile or normal place of residence;
(b)      during the refund period, he has not supplied any goods or services deemed to have been supplied in the Member State of refund, with the exception of the following transactions:
(i)      the supply of transport services and services ancillary thereto, exempted pursuant to Articles 144, 146, 148, 149, 151, 153, 159 or 160 of [the VAT Directive];
(ii)      the supply of goods and services to a person who is liable for payment of VAT in accordance with Articles 194 to 197 and Article 199 of [the VAT Directive].’
11      Article 5 of Directive 2008/9 states:
‘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 or in respect of the importation of goods into 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];
(b)      transactions to a person who is liable for payment of VAT in accordance with Articles 194 to 197 and Article 199 of [the VAT Directive] as applied in the Member State of refund.
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.’
12      Article 7 of Directive 2008/9 is worded as follows:
‘To obtain a refund of VAT in the Member State of refund, the taxable person not established in the Member State of refund shall address an electronic refund application to that Member State and submit it to the Member State in which he is established via the electronic portal set up by that Member State.’
13      Article 15 of the directive provides:
‘1.      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.
2.      The Member State of establishment shall send the applicant an electronic confirmation of receipt without delay.’
14      Article 20(1) of that directive provides:
‘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, by electronic means, additional information, in particular from the applicant or from the competent authorities of the Member State of establishment, within the four-month period referred to in Article 19(2). Where the additional information is requested from someone other than the applicant or a competent authority of a Member State, the request shall be made by electronic means only if such means are available to the recipient of the request.
If necessary, the Member State of refund may request further additional information.
…’
15      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.
If, under the law of the Member State of refund, failure to take a decision on a refund application within the time limits specified in this Directive is not regarded either as approval or as refusal, any administrative or judicial procedures which are available in that situation to taxable persons established in that Member State shall be equally available to the applicant. If no such procedures are available, failure to take a decision on a refund application within these time limits shall mean that the application is deemed to be rejected.’
Italian law
Decree No 633/1972
16      The Decreto del Presidente della Repubblica n. 633 – Istituzione e disciplina dell’imposta sul valore aggiunto (Decree of the President of the Republic No 633 establishing and regulating value added tax) of 26 October 1972 (GURI No 292 of 11 November 1972, Ordinary Supplement No 1; ‘Decree No 633/1972’) provides, in Article 38-bis2, entitled ‘Refunds to non-resident persons established in another Member State of the Community’:
‘1.      Persons established in other Member States of the Community, who are subject to tax in the State in which they are domiciled or resident, shall apply for a refund of the tax paid on the importation of goods or on the acquisition of goods and services, if it is deductible pursuant to Articles 19, 19-bis1 and 19-bis2, in accordance with the provisions of this Article. A refund may not be applied for by persons who had a fixed establishment in the territory of the State
… during the reference period. …
…
4.      The refund application shall be sent by electronic means via the Member State of residence of the applicant.
5.      … The decision regarding the refund of the tax shall be notified to the applicant within four months of receipt of the application, subject to the provisions of the following paragraphs.
6.      Within the four-month period referred to in paragraph 5, the tax office may request by electronic means additional information from the applicant for refund or from the Member State in which that applicant is established, in order to obtain all the relevant elements on which to base the decision on the refund. Additional information may be requested from another person, including by electronic means, provided that the means are available to the recipient. The information requested shall be provided to the tax office within one month of the date on which the recipient receives the request. In the event of a request for additional information, the notification referred to in paragraph 5 shall be made within two months of the date of receipt of that information by the tax office or within two months of the expiry, without reply, of the one-month time limit referred to in the third sentence. The abovementioned time limits shall not apply if they expire prior to the expiry of a period of six months from receipt of the refund application, in which case the tax office shall make the notification referred to in paragraph 5 within six months of receipt of the application.
7.      The tax office may request information in addition to that provided for in paragraph 6. The information requested shall be provided to the tax office within one month of the date on which the recipient receives the request. In that case, the notification referred to in paragraph 5 must, in any event, be made within eight months of the date of receipt of the refund application.
…
11.      Persons who receive a refund not due must repay the sums incorrectly refunded within 60 days of notification of the decision taken to that effect by the tax office …
12.      Pending payment of the amount due by way of sums
incorrectly refunded and the associated penalties, the tax office shall suspend any further refund to the person concerned up to that amount.’
Legislative Decree No 546/1992
17      Article 21(2) of the Decreto legislativo n. 546 – Disposizioni sul processo tributario in attuazione della delega al Governo contenuta nell’art. 30 della legge 30 dicembre 1991, n. 413 (Legislative Decree No 546 laying down provisions relating to the proceedings before the tax courts, pursuant to the powers delegated to the Government under Article 30 of Law No 413 of 30 December 1991), of 31 December 1992 (GURI No 9 of 13 January 1993, Ordinary Supplement No 8; ‘Legislative Decree No 546/1992’), states:
‘An appeal against an implied rejection decision within the meaning of Article 19(1)(g) and (g)
bis may be brought from the ninetieth day following the date on which the refund application is made,
within the time limits laid down by the individual tax law, up until such time as the right to a refund becomes time-barred. Save where specific provision is made, the refund application may not be submitted more than two years after payment or after the date on which the conditions for the refund arise, whichever is the later.’
The Civil Code
18      Article 2909 of the Codice Civile (Civil Code), entitled ‘Res judicata’, provides:
‘Findings made in judgments that have become final shall be binding in all respects on the parties and on their lawful successors and assignees.’
Code of Civil Procedure
19      Article 324 of the Codice di procedura civile (Code of Civil Procedure), entitled ‘Formal res judicata’, provides:
‘A judgment that has become final shall mean a judicial decision that is no longer open to a dispute concerning jurisdiction, to an appeal, to an appeal on a point of law, or to a revision on the grounds set out in Article 395(4) and (5).’
The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
20      On 26 September 2016, Harry et Associés submitted to the French tax authorities an application for refund of VAT in the amount of EUR 98 740.93 in respect of transactions carried out in Italy in 2015.
21      The French tax
authorities forwarded that application by electronic means to COP, which was the tax authority of the Member State of refund. The electronic file containing that application was vitiated by certain technical errors which made it unreadable. For that reason, although that application was duly received by the French tax authorities and then by COP, it was neither processed nor examined by COP.
22      Owing to the absence of a refund of the VAT or of any reaction from COP, Harry et Associés brought an action before the Corte di Giustizia Tributaria di primo grado di Pescara (Tax Court of First Instance, Pescara, Italy), which is the referring court. In a first judgment, that court found that Harry et Associés was entitled to a VAT refund.
23      Consequently, COP refunded the VAT concerned to that company, while bringing an appeal against that judgment before the Corte di Giustizia Tributaria di secondo grado (Tax Court of Second Instance, Italy).
24      The Corte di Giustizia Tributaria di secondo grado (Tax Court of Second Instance) varied that judgment, holding that, owing to the technical faults in the electronic transmission of the VAT refund application, that application was non-existent, with the result that the inaction on the part of COP could not be equated with an implied decision rejecting that application. Consequently, the action brought by Harry et Associés was dismissed as inadmissible.
25      Harry et Associés then brought an appeal on a point of law before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which, by an order, dismissed it, in essence, on the same grounds as those set out in the preceding paragraph of the present judgment.
26      Subsequently, COP adopted a recovery measure against Harry et Associés for the amount of the VAT previously refunded, together with default interest and legal costs.
27      By a new action before the referring court, Harry et Associés challenged that recovery measure.
28      The referring court considers, in essence, that that recovery measure infringes the right of Harry et Associés to a VAT refund and fails to observe the principle of VAT neutrality. That court considers that that right cannot be denied on account of a technical fault in the electronic transmission of the refund application that is not attributable to Harry et Associés.
29      In addition, the referring court is uncertain whether the fact that the order of the Corte suprema di cassazione (Supreme Court of Cassation) is res judicata
precludes it from ruling, in the case in the main proceedings, on the existence, in favour of Harry et Associés, of a right to a VAT refund, in the light, in particular, of the judgments of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121), of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434), and of 3 September 2009, Fallimento Olimpiclub (C‑2/08, EU:C:2009:506).
30      In those circumstances the Corte di Giustizia tributaria di primo grado di Pescara (Tax Court of First Instance, Pescara) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do Article 167 of [the VAT Directive] and the general principles of VAT neutrality and proportionality of the limitation of the right to deduct VAT preclude:
(a)      national rules – identifiable with Article 21(2) of Legislative Decree [No] 546/1992 and Article 38
bis.2 of Presidential Decree No 633/1972 – which, in domestic law, by allowing a refund application vitiated by technical computer errors to be declared as devoid of effect, preclude access to the courts, and are such as to entail forfeiture of the right to be refunded in a substantive situation in which the VAT refund is due to the taxpayer;
(b)      a principle of law, such as that affirmed by the [Corte suprema di cassazione (Supreme Court of Cassation)], whereby “an application for refund of a VAT credit, which, owing to technical faults in the electronic transmission, is not visible to the tax authorities, is not suitable for creating a situation of appealable silent denial, as the tax authorities are not in a position to take action”, such as to preclude direct access to the courts in the case at hand, and therefore such as to entail forfeiture of the right to a refund even in a substantial situation in which the refund is due?’
31      The referring court also requested the Court of Justice to determine the present case pursuant to the expedited procedure provided for in Article 105(1) of the Rules of Procedure of the Court. By order of the President of the Court of 21 October 2024, Harry et Associés (C‑527/24, EU:C:2024:966), the Court decided to dismiss that application.
Consideration of the question referred
Admissibility
32      The Italian Government submits that the question referred is irrelevant on the ground that, because of the technical faults
in the VAT refund application made by Harry et Associés, that application cannot be considered submitted within the meaning of Article 15(1) of Directive 2008/9.
33      In that regard, it is sufficient to note that, in so far as the argument put forward by that government relates to the issue of the submission of a VAT refund application, for the purposes of Article 15(1) of Directive 2008/9, that issue relates to the substance of the question referred for a preliminary ruling, and not to the admissibility of that question, with the result that the argument should be examined in the context of the examination of the substance of that question (see, by analogy, judgment of 19 September 2024, Consiglio nazionale delle Ricerche, C‑439/23, EU:C:2024:773, paragraph 27 and the case-law cited).
34      Therefore, the question referred for a preliminary ruling must be declared admissible.
Substance
35      According to the settled case-law of the Court, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 4 October 2024, Herbaria Kräuterparadies II, C‑240/23, EU:C:2024:852, paragraph 46 and the case-law cited).
36      The wording of its single question
shows that the referring court seeks an interpretation of, inter alia, Article 167 of the VAT Directive, which relates to the date on which the right to deduct VAT arises.
37      In the present case, it is apparent from the order for reference, first, that the dispute in the main proceedings concerns not the right to deduct VAT but the right to a VAT refund, governed by Article 170 and Article 171(1) of the VAT Directive, and by the provisions of Directive 2008/9, whose Article 15(1), second sentence, Article 20(1) and Article 23(2) are of particular relevance for the purpose of answering the question referred for a preliminary ruling, since that right to a refund is, in the present case, asserted by a taxable person established in a Member State other than the Member State of VAT refund, that is to say, in a situation which is governed by the provisions of Directive 2008/9.
38      Second, as has been noted in paragraph 29 above, the referring court is uncertain whether, in order to remedy the possible incompatibility of the national legislation, as interpreted by the Corte suprema di cassazione (Supreme Court of Cassation), with EU law, it must disapply the order of that court, which has become final.
39      In those circumstances, the question referred should be understood as asking the Court to determine whether Article 170 and Article 171(1) of the VAT Directive, read in conjunction with the second sentence of Article 15(1), Article 20(1) and Article 23(2) of Directive 2008/9, and with the principles of VAT neutrality, proportionality and good administration, must be interpreted as precluding national legislation, as interpreted by a final judicial decision, according to which a taxable person established in a Member State other than the Member State of VAT refund is deprived of both the right to a VAT refund and the right of access to the courts so as to challenge a failure to act on the part of the tax authorities of the Member State of refund, to which that taxable person’s VAT refund application has been
made, on the ground that that application cannot be considered submitted owing to a technical fault
in its electronic transmission.
40      In the first place, it must, first, be recalled that, in accordance with Article 170(a) of the VAT Directive, read in conjunction with Article 169
thereof and Articles 3 and 5 of Directive 2008/9, all taxable persons who are not established in the Member State in which they purchase goods and services or import goods subject to VAT are to be entitled to a refund of that VAT in so far as the goods and services are used either for the purposes of transactions relating to the activities referred to in the second subparagraph of Article 9(1) of the VAT Directive, carried out outside the Member State in which that VAT is due or paid and which would be deductible if those transactions had been conducted in that Member State, or for the purposes of transactions which are exempt, referred to in Article 169(b) and (c) of that directive. Second, Article 171 of the VAT Directive refers to Directive 2008/9 so far as concerns the detailed rules for exercising that right (judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 33).
41      With regard to the right to a refund, the Court has already stated that 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 that person’s own Member State (judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 34 and the case-law cited).
42      Furthermore, the Court has clarified that, 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 of that operator’s 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 (judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 35 and the case-law cited).
43      The right to a refund is thus an integral part of the VAT scheme and in principle may not be limited. That right is exercisable immediately in respect of all taxes charged on input transactions
(see, to that effect, judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 36 and the case-law cited).
44      The fundamental principle of VAT neutrality requires the 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. 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 (judgment of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraphs 47 and 48 and the case-law cited).
45      Thus, the strict application of the formal requirements would conflict with the principles of neutrality and proportionality, inasmuch as it would disproportionately prevent the taxable person from benefiting from fiscal neutrality relating to that person’s transactions (see, to that effect, judgment of 21 November 2018, Vădan, C‑664/16, EU:C:2018:933, paragraph 42).
46      As regards the detailed rules governing the exercise of the right to a VAT refund, as laid down by Directive 2008/9, it is important to note that Article 7 of that directive provides that the taxable person not established in the Member State of refund is to address his or her or its refund application to the Member State of refund, submitting it to the Member State in which the taxable person is established via the electronic portal set up by that second Member State.
47      In accordance with the second sentence of Article 15(1) of that directive, such an application is to be considered submitted to the Member State of establishment only if that taxable person has filled in all the information required under Articles 8, 9 and 11 of that directive.
48      In the present case, it is apparent from the order for reference that, on 26 September 2016, Harry et Associés made, within the time limit laid down in Article 15(1) of Directive 2008/9, to the French tax authorities, which are the tax authorities of the Member State in which Harry et Associés
was established, an application for refund of VAT relating to transactions carried out in Italy in 2015. That application was forwarded by those authorities to COP, the tax authority of the Member State of refund, by electronic means, as provided for in Article 7 of that directive. It is also apparent from that order for reference that that application was duly received, first by the French tax authorities and then by COP. Furthermore, there is nothing in the file before the Court to suggest that that application did not contain the information required under
Articles 8, 9 and 11 of that directive or that the conditions laid down in Article 3 of that directive were not satisfied.
49      It is also apparent from the order for reference that, owing to a technical fault not attributable to the taxable person, COP was unable to open the electronic file containing its refund application.
50      In that regard, it should be borne in mind that, where a Member State implements EU law, the requirements pertaining to the principle of good administration, and in particular the right of every person to have his or her or its affairs handled impartially and within a reasonable period of time, are applicable in a tax inspection procedure. That principle of good administration requires tax authorities, such as COP, when carrying out their inspection duties, to conduct a diligent and impartial examination of all the relevant matters so that they can be sure that, when they adopt a decision, they have at their disposal the most complete and reliable information possible for that purpose (see, to that effect, judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 48).
51      Consequently, if those tax authorities are unable, owing to a technical fault, to open the electronic file containing a VAT refund application which has been duly forwarded to them by electronic means, in accordance with the detailed rules laid down by Directive 2008/9, the principle of good administration requires those tax authorities to inform the taxable person, where appropriate through the tax authorities of the Member State in which that taxable person is established, of the existence of the technical fault preventing them from opening that electronic file, requesting that person to remedy it, by sending, where appropriate, a new, fully functional electronic file.
52      Furthermore, in accordance with Article 20(1) of Directive 2008/9, where the tax authorities of the Member State of refund consider that they
do not have all the relevant information on which to make a decision in respect of the whole or part of such an application, they may request, by electronic means, additional information, in particular from the taxable person or from the competent authorities of the Member State of establishment. That provision would, to a large extent, be deprived of its effectiveness if those authorities were able immediately to take the view that, owing to a technical fault, no refund application had been submitted, even though such an application had been forwarded to
them by electronic means by the tax authorities of the Member State in which the taxable person was established and had been duly received by the authorities of the Member State of refund.
53      Thus, in a situation such as that described in the order for reference and recalled in paragraph 48 above, the principles of good administration, VAT neutrality and proportionality require the tax authorities of the Member State of refund to consider the refund application ‘submitted’ within the meaning of Article 15(1) of Directive 2008/9, and to make use, as the case may be, of the discretion conferred by Article 20(1) of that directive, transposed, in essence, into Italian law by means of Article 38-bis2(6) and (7) of Decree No 633/1972, to request the taxable person, if necessary through the tax authority of the Member State in which that taxable person is established, to send them a new, non-corrupt electronic file containing that application (see, to that effect, judgment of 17 December 2020, Bundeszentralamt für Steuern, C‑346/19, EU:C:2020:1050, paragraphs 49 to 51).
54      In the present case, it is apparent from the order for reference that COP failed to inform Harry et Associés, either directly or through the tax authorities of the Member State in which Harry et Associés was established, of the existence of a technical fault preventing it from opening the electronic file containing the VAT refund application, or to ask Harry et Associés, as the case may be, to remedy that fault by submitting a new, fully functional electronic file. Nor did COP adopt an express decision rejecting the refund application.
55      In those circumstances, it cannot be found, solely owing to a technical fault
in the transmission of the electronic file containing a VAT refund application, that no application was submitted within the meaning of the second sentence of Article 15(1) of Directive 2008/9, even though such an application had been in fact forwarded in accordance with the detailed rules laid down by that directive and had been duly received both by the tax authorities of the Member State in which the taxable person was established and by those of the Member State of refund.
56      In the second place, it must be examined whether the taxable person has, under the applicable national legislation, as interpreted by the national courts, an effective judicial remedy against a failure to act on the part of the tax authorities of the Member State of refund.
57      In that regard, it must be borne in mind that, in accordance with the first subparagraph of Article 23(2) of Directive 2008/9, appeals against decisions to refuse a refund application may be made by the taxable person 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. According to the second subparagraph of Article 23(2), if failure to take a decision on the part of the tax authorities of that Member State is not regarded either as approval or as refusal, any administrative or judicial procedures which are available in that situation to taxable persons established in that Member State are to be equally available to the taxable person. If no such procedures are available, failure to take a decision is to mean that the application is deemed to be rejected.
58      That provision must be read in the light of recital 3 of that directive, from which it is apparent that that directive is aimed, inter alia, at strengthening the right of appeal by businesses (judgment of 16 May 2024, Slovenské Energetické Strojárne, C‑746/22, EU:C:2024:403, paragraph 41).
59      Although that provision is intended to guarantee the right of appeal of taxable persons not established in the Member State of refund, the fact remains that, in accordance with the principle of the procedural autonomy of the Member States, the detailed rules governing the exercise of administrative or judicial remedies are a matter for the national legal order of that Member State (see, to that effect, judgment of 16 May 2024, Slovenské Energetické Strojárne, C‑746/22, EU:C:2024:403, paragraph 42).
60      That said, those detailed rules must neither be less favourable than those governing similar domestic situations (principle of equivalence) nor make it impossible in practice or excessively difficult to exercise rights conferred under the European Union’s legal order (principle of effectiveness) (see, to that effect, judgment of 16 May 2024, Slovenské Energetické Strojárne, C‑746/22, EU:C:2024:403, paragraph 43 and the case-law cited).
61      In the present case, it is apparent, in essence, from the order for reference that, under Article 21(2) of Legislative Decree No 546/1992, if the taxable person has made a VAT refund application within the prescribed time limits and if the tax authorities of the Member State of refund have not issued an express (positive or negative) decision within 90 days of the date on which that application was made, that silence is deemed to be an implied decision rejecting that application. According to that provision, implied decisions rejecting VAT refund applications may be challenged before the courts.
62      Thus, it does not appear that that provision is, as such, incompatible with the requirements under
Article 23(2) of Directive 2008/9.
63      Nevertheless, it is apparent from the order for reference that the Corte suprema di cassazione (Supreme Court of Cassation), in the order referred to in paragraphs 25 and 29 above, adopted an interpretation of Article 21(2) of Legislative Decree No 546/1992 according to which, in essence, failure to act on the part of COP, to which a VAT refund application was made
that was duly received but was unreadable owing to technical faults in its electronic transmission, is not deemed to
be an implied rejection decision that
may be challenged before the courts.
64      In those circumstances, the interpretation of Article 21(2) of Legislative Decree No 546/1992 adopted by the Corte suprema di cassazione (Supreme Court of Cassation), as set out in the preceding paragraph of the present judgment, is contrary to the requirements laid down in Article 23(2) of Directive 2008/9, pursuant to which, in essence, failure to take a decision on a refund application must be open to challenge before the courts.
65      That interpretation of Article 23(2) of Directive 2008/9 is, moreover, the only one which respects the right to an effective remedy,
conferred by Article 47 of the Charter of Fundamental Rights of the European Union on
any person whose rights guaranteed by the law of the European Union are violated.
66      In those circumstances, it should be considered that a taxable person established in a Member State other than the Member State of VAT refund cannot be deprived of the rights conferred on that person under EU law, namely, first, that person’s right to a VAT refund, and second, that person’s right of access to the courts
so as to challenge a failure to act on the part of the tax authorities of the Member State of refund to which that person’s VAT refund application has been
made, on the ground that that application cannot be considered submitted owing to a technical fault in its electronic transmission.
67      It must be noted that it is apparent from the order for reference that the referring court is not only uncertain about the compatibility of the order of the Corte suprema di cassazione (Supreme Court of Cassation), referred to in paragraphs 25 and 29 above, with EU law, but also has doubts as to whether EU law precludes the application of national provisions enshrining the principle of res judicata, such as Article 2909 of the Civil Code and Article 324 of the Code of Civil Procedure. In particular, those provisions could be the legal basis for raising a plea of inadmissibility against the action in the dispute in the main proceedings, given that the referring court is required to apply the principle established by the Corte suprema di cassazione (Supreme Court of Cassation) in the order in question on the ground that that order has become res judicata.
68      In that regard, it is sufficient to note that the Court has previously held that provisions of national law which not only prevent a judicial decision which is res judicata from being called into question, even if that decision entails a breach of EU law, but which also prevent any finding on a fundamental issue common to other cases, contained in a judicial decision which is
res judicata, from being called into question in the context of judicial scrutiny of another decision taken by the relevant tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year, constitute such extensive obstacles to the effective application of the EU rules on VAT that they cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness (see, to that effect, judgments of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraphs 29 and 31, and of 2 April 2020, CRPNPAC and Vueling Airlines, C‑370/17 and C‑37/18, EU:C:2020:260, paragraph 94).
69      The same is logically true where the judicial proceedings relate to another decision of the relevant tax authority that concerns the same taxpayer or taxable person but that has a different subject matter (see, to that effect, judgment of 16 January 2025, BALTIC CONTAINER TERMINAL, C‑376/23, EU:C:2025:20, paragraph 75 and the case-law cited).
70      If the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an interpretation that is at odds with EU law, the incorrect application of that law would be repeated in every decision adopted by the courts concerning the same facts, and there would be no possibility of correcting an interpretation that was in breach of EU law (see, to that effect, judgments of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 30, and of 2 April 2020, CRPNPAC and Vueling Airlines, C‑370/17 and C‑37/18, EU:C:2020:260, paragraph 95).
71      In the present case, subject to verification by the referring court, it appears that the case which gave rise to the order of the Corte suprema di cassazione (Supreme Court of Cassation), referred to in paragraphs 25 and 29 above, had as its subject matter, in essence, the question whether the failure to act on the part of COP constituted an implied decision rejecting the VAT refund application and whether that decision was open to challenge before the courts. It therefore appears that the Corte suprema di cassazione (Supreme Court of Cassation) did not take a position on the substance of the question whether Harry et Associés was entitled to a VAT refund. By contrast, the subject matter of the dispute in the main proceedings concerns the legality of a measure for the recovery of previously refunded VAT, sent by the tax authorities to Harry et Associés. Thus, subject to verification by the referring court, it appears that the two disputes have different subject matters.
72      If such a difference in subject matter between the two disputes were established by the referring court, it would therefore appear that applying
Article 2909 of the Civil Code and Article 324 of the Code of Civil Procedure, as interpreted by the referring court, would have the effect of perpetuating,
without a possibility of correction, an incorrect interpretation of EU law, including
in a dispute having a subject matter that is different from that in which that interpretation was made, inasmuch as
that dispute relates to another decision of the relevant tax authority, which would be contrary to the principle of effectiveness, as interpreted in the case-law referred to in paragraphs 68 to 70 above.
73      In the light of the foregoing considerations, the answer to the question referred is that Article 170 and Article 171(1) of the VAT Directive, read in conjunction with the second sentence of Article 15(1), Article 20(1) and Article 23(2) of Directive 2008/9, and with the principles of VAT neutrality, proportionality and good administration, must be interpreted as precluding national legislation, as interpreted by a final judicial decision, according to which a taxable person established in a Member State other than the Member State of VAT refund is deprived of both the right to a VAT refund and the right of access to the courts so as to challenge a failure to act on the part of the tax authorities of the Member State of refund, to which that taxable person’s VAT refund application has been
made, on the ground that that application cannot be considered submitted owing to a technical fault
in its electronic transmission.
Costs
74      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Ninth Chamber) hereby rules:
Article 170 and Article 171(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8/EC of 12 February 2008, read in conjunction with the second sentence of Article 15(1), Article 20(1) and Article 23(2) 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/EC, to taxable persons not established in the Member State of refund but established in another Member State, and with the principles of neutrality of value added tax (VAT), proportionality and good administration,
must be interpreted as precluding national legislation, as interpreted by a final judicial decision, according to which a taxable person established in a Member State other than the Member State of VAT refund is deprived of both the right to a VAT refund and the right of access to the courts so as to challenge a failure to act on the part of the tax authorities of the Member State of refund, to which that taxable person’s VAT refund application has been made, on the ground that that application cannot be considered submitted owing to a technical fault in its electronic transmission.
[Signatures]
*      Language of the case: Italian.