Order of the Court (Eighth Chamber) of 17 September 2020 – Super Bock Bebidas

(Case C‑837/19) ( 1 )

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Deduction of input tax – Sixth Directive 77/388/EEC – Article 17(6) – Directive 2006/112/EC – Articles 168 and 176 – Exclusion from the right to deduct – Purchase of accommodation, food, drink, vehicle leases, fuel and tolls services – Standstill clause – Accession to the European Union)

1. Harmonisation of fiscal legislation – Common system of value added tax – Deduction of input tax – Limitations on the right to deduct – Retention of the exceptions from the right to deduct in place at the date of accession to the European Union – Subsequent amendment having an impact on the scope of the exceptions – Whether permissible – Conditions (Council Directive 77/388, Art. 17(6), second para. (d); Council Directive 2006/112, Art. 176, second para. (d)) (see paras 28-31)

2. Accession of new Member States – Protocols and Annexes to the Acts of Accession – Submission to the legal regime of primary law provisions – Interpretation of their provisions in the light of the provisions of secondary legislation adopted to apply them – Unlawful (Act of Accession of 1985, Art. 395 and Annex XXXVI; Council Directive 77/388, Art. 17(6), second para. (d); Council Directive 2006/112, Art. 17(6), second para. (d)) (see para. 38)

3. Harmonisation of fiscal legislation – Common system of value added tax – Deduction of input tax – Limitations on the right to deduct – Retention of the exceptions from the right to deduct in place at the date of accession to the European Union – Conditions – Sufficiently specified exceptions (Council Directive 77/388, Art. 17(6), second para. (d); Council Directive 2006/112, Art. 17, second para. (d)) (see paras 39-42)

4. Harmonisation of fiscal legislation – Common system of value added tax – Deduction of input tax – Limitations on the right to deduct – Retention of the exceptions from the right to deduct in place at the date of accession to the European Union – National regulation which entered into force on the date of accession to the European Union – Exceptions which also apply to expenditure incurred for the purposes of taxed operations – Whether permissible (Council Directive 77/388, Art. 17(6), second para. (d); Council Directive 2006/112, Art. 17(6), second para. (d)) (see paras 43, 44, operative part)

Operative part

Article 17(6) of the Sixth Council Directive 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, and Article 168(a) and Article 176 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not precluding legislation of a Member State which came into force after the date of accession of that Member State to the European Union, and according to which the exclusions from the right to deduct value added tax charged on expenditure relating to, in particular, accommodation, food, drink, vehicle leases, fuel and tolls, also apply where it is established that that expenditure was incurred for the purchase of goods and services used for the purposes of taxed transactions.

( 1 ) OJ C 54, 17.2.2020.