Almos Agrárkülkereskedelmi Kft v Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága.
Date: 2014-05-15
18. As a preliminary point, it should be noted that the cooperative arrangements established by Article 267 TFEU are based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of national rules with European Union law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of European Union law necessary to enable that court to rule on the compatibility of those national rules with Community law (see, inter alia, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  EU:C:2007:133, paragraph 36).
21. According to the Court’s case-law, the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner, so that, in the case of a directive intended to confer rights on individuals, the persons concerned are enabled to ascertain the full extent of their rights and, where appropriate, rely on them before the national courts (see, inter alia, Case C‑287/04 Commission v Sweden  EU:C:2005:330, paragraph 6, and Case C‑427/07 Commission v Ireland EU:C:2009:457, paragraph 54).
22. In that regard, it must be noted that Article 90(1) of the VAT Directive, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. That provision embodies one of the fundamental principles of the VAT Directive, 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 VAT exceeding the tax paid by the taxable person (see, to that effect, Case C‑588/10 Kraft Foods Polska EU:C:2012:40, paragraphs 26 and 27).
23. 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. Hence taxable persons cannot rely, under Article 90(1) of the VAT Directive, on a right to a reduction of their taxable amount for VAT in the case of non-payment of the price if the Member State concerned intended to apply the derogation provided for in Article 90(2) of that directive.
24. It must be accepted that a national provision which, in setting out the situations in which the taxable amount is reduced, does not refer to the situation of non-payment of the transaction price must be regarded as the result of the exercise by the Member State of the power of derogation granted it under Article 90(2) of the VAT Directive.
25. It must be noted in that regard that, 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 European Union 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.
28. In the light of the foregoing considerations, the answer to the first and fifth questions is that the provisions of Article 90 of the VAT Directive must be interpreted as not precluding a national provision which does not provide for the reduction of the taxable amount for VAT 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.
The second to fourth questions
31. It should be recalled that, according to settled case-law of the Court, 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 (see Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  EU:C:2004:584, paragraph 103, and Case C‑176/12 Association de médiation sociale  EU:C:2014:2, paragraph 31).
32. A provision of European Union 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 (see, to that effect, Case C‑317/05 Pohl-Boskamp  EU:C:2006:684, paragraph 41).
34. 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 by analogy, inter alia, Association de médiation sociale  EU:C:2014:2, paragraph 33).
36. In the second place, as regards the question of the formalities to which the exercise of that right to a reduction of the taxable amount may be subject, it must be noted that, under Article 273 of the VAT Directive, Member States may impose the obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, provided, inter alia, that that option is not relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3 of that directive.
37. Given that Articles 90(1) and 273 of the VAT Directive do not, outside the limits laid down therein, specify either the conditions or the obligations which the Member States may impose, it must be held that those provisions give the Member States a margin of discretion, inter alia, as to the formalities to be complied with by taxable persons vis-à-vis the tax authorities of those States in order to ensure that the taxable amount is reduced (see, to that effect, Kraft Foods Polska  EU:C:2012:40, paragraph 23).
38. It is also apparent from the case-law of the Court that measures to prevent tax evasion or avoidance may not, in principle, derogate from the rules relating to the taxable amount except within the limits strictly necessary for achieving that specific aim. They must have as little effect as possible on the objectives and principles of the VAT Directive and may not therefore be used in such a way that they would have the effect of undermining the neutrality of VAT (see, to that effect, Kraft Foods Polska  EU:C:2012:40, paragraph 28, and Case C‑271/12 Petroma Transports and Others  EU:C:2013:297, paragraph 28).
39. Consequently, the formalities to be complied with by taxable persons to exercise, vis-à-vis the tax authorities, the right to reduce the taxable amount for VAT must be limited to those which make it possible to provide proof that, after the transaction has been concluded, part or all of the consideration will definitely not be received. It is for the national courts to ascertain whether that is true of the formalities required by the Member State concerned.