EN Official Journal of the European Union C 194/5

Judgment of the Court (Third Chamber) of 12 May 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria)) — Enel Maritsa Iztok 3 AD v Direktor ‘Obzhalvane i upravlenie na izpalnenieto’ NAP

(Case C-107/10) (1)

(Reference for a preliminary ruling - VAT - Directives 77/388/EEC and 2006/112/EC - Refund - Time-limit - Interest - Set-off - Principles of fiscal neutrality and proportionality - Protection of legitimate expectations)

2011/C 194/06

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Enel Maritsa Iztok 3 AD

Defendant: Direktor „Obzhalvane i upravlenie na izpalnenieto“ NAP

Re:

Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 18(4) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145) and Article 183, first paragraph, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Mandatory period within which excess VAT is to be refunded, at the expiry of which the interest due to the taxable person is calculated — Amendment to national legislation during such a calculation providing that, in the event of a tax investigation, that calculation will be made as of the date of issue of the tax notice concluding the tax investigation — Reasonable period — Whether it is possible to refund excess VAT by setting off the sum to be refunded against tax liabilities of the taxable person — Principles of fiscal neutrality and proportionality

Operative part of the judgment

1. Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2006/138/EC of 19 December 2006, in conjunction with the principle of the protection of legitimate expectations, is to be interpreted as precluding national legislation which provides, with retrospective effect, for the extension of the period within which excess value added tax is to be refunded, in so far as that legislation deprives the taxable person of the right enjoyed before the entry into force of the legislation to obtain default interest on the sum to be refunded.

2. Article 183 of Directive 2006/112, as amended by Directive 2006/138, in the light of the principle of fiscal neutrality, is to be interpreted as precluding national legislation under which the normal period for refunding excess valued added tax, at the expiry of which default interest is payable on the sum to be refunded, is extended where a tax investigation is instigated, the effect of the extension being that such interest is payable only from the date on which the investigation is completed, the excess having already been carried forward during the three tax periods following that in which it arose. On the other hand, the fact that the normal period is 45 days is not contrary to that provision.

3. Article 183 of the Directive 2006/112, as amended by Directive 2006/138, is to be interpreted as not precluding the refund of excess valued added tax by way of set-off.

(1) OJ C 134, 22.5.2010.