Case C‑337/13

Almos Agrárkülkereskedelmi Kft

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Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága

(Request for a preliminary ruling from the Kúria)

‛Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 90 — Reduction of the taxable amount — Extent of obligations of Member States — Direct effect’

Summary — Judgment of the Court (Seventh Chamber), 15 May 2014

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduction in the event of cancellation or refusal, or where the price is reduced — National legislation making that reduction subject to certain formalities — Lawfulness — Conditions — Proportionality

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Reduction in the event of cancellation or refusal, or where the price is reduced — National legislation which does not provide for a reduction in the case of non-payment of the price — Whether permissible — Conditions — Application by a Member State of the derogation provided for in the event of total or partial non-payment of the price

Article 90 of Directive 2006/112 on the common system of value added tax must be interpreted as not precluding a national provision which does not provide for the reduction of the taxable amount for value added tax in the case of non-payment of the price if the derogation provided for in Article 90(2) is applied. However, that provision must then mention all the other situations in which, under Article 90(1), after a transaction has been concluded, part or all of the consideration has not been received by the taxable person, which is a matter for the national court to ascertain. Admittedly, Article 90(1) embodies one of the fundamental principles of Directive 2006/112, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not charge an amount of value added tax exceeding the tax paid by the taxable person. However, Article 90(2) permits Member States to derogate from the abovementioned rule in the case of total or partial non-payment of the transaction price. That national provision must be regarded as the result of the exercise by the Member State of the power of derogation granted it under that article. In that regard, if the total or partial non-payment of the purchase price occurs without there being cancellation or refusal of the contract, the purchaser remains liable for the agreed price and the seller, even though no longer proprietor of the goods, in principle continues to have the right to receive payment, which he can rely on in court. Since it cannot be excluded, however, that such a debt will become definitively irrecoverable, the EU legislature intended to leave it to each Member State to determine whether the situation of non-payment of the purchase price, which, of itself, unlike cancellation or refusal of the contract, does not restore the parties to their original situation, leads to an entitlement to have the taxable amount reduced accordingly under conditions it determines, or whether such a reduction is not allowed in that situation. (see paras 22-25, 28, operative part 1)

Taxable persons may rely on Article 90(1) of Directive 2006/112 on the common system of value added tax before national courts against a Member State to obtain a reduction of their taxable amount for value added tax. Whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. In that regard, a provision of EU law is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States. Although that article grants the Member States a certain degree of discretion when adopting the measures to determine the amount of the reduction, that does not alter the precise and unconditional nature of the obligation to allow the reduction in the taxable amount in the cases referred to by that article. It therefore fulfils the conditions for it to have direct effect. (see paras 31, 32, 34, 40, operative part 2)