EN Official Journal of the European Union C 246/7

Judgment of the Court (Fourth Chamber) of 29 July 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny, Republic of Poland) — Dyrektor Izby Skarbowej w Białymstoku v Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski spółka jawna w Białymstoku, formerly Profaktor Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

(Case C-188/09) (1)

(Reference for a preliminary ruling - VAT - Right to deduct - Reduction of the extent of the right to deduct in the event of breach of the obligation to use a cash register)

2010/C 246/11

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Dyrektor Izby Skarbowej w Białymstoku

Defendants: Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski spółka jawna w Białymstoku, formerly Profaktor Kulesza, Frankowski, Trzaska spółka jawna w Białymstoku

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14), in conjunction with Articles 2, 10(1) and (2), 17(1) and (2), 27(1) and 33(1) 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, p. 1) — Compatibility with those provisions of national legislation providing for the mandatory use of a cash register for sales to non-taxable persons effected by taxable persons for VAT purposes and under which breach of that obligation is penalised by forfeiture of the right to deduct input tax in the amount of 30 %

Operative part of the judgment

1. The common system of value added tax, as defined in Article 2(1) and (2) of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes and in Articles 2, 10(1) and (2) and 17(1) and (2) 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, as amended by Council Directive 2004/7/EC of 20 January 2004, does not preclude a Member State from imposing a temporary restriction on the extent of the right of taxable persons who have not complied with a formal requirement to keep accounting records of their sales to deduct input tax paid, on condition that the sanction thus provided for complies with the principle of proportionality.

2. Provisions such as those of Article 111(1) and (2) of the Law on the Tax on Goods and Services (ustawa o podatku od towarów i usług) of 11 March 2004 are not ‘special measures for derogation’ intended to prevent certain types of tax evasion or avoidance within the meaning of Article 27(1) of Sixth Directive 77/388, as amended by Directive 2004/7.

3. Article 33 of Sixth Directive 77/388, as amended by Directive 2004/7, does not preclude the maintenance of provisions such as those of Article 111(1) and (2) of the Law on the Tax on Goods and Services of 11 March 2004.

(1) OJ C 193, 15.8.2009.