Enzo Di Maura v Agenzia delle Entrate – Direzione Provinciale di Siracusa.
Date: 2017-11-23
13


That provision embodies one of the fundamental principles of the Sixth Directive, according to which the taxable amount is the consideration actually received, and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person has himself received as consideration (judgment of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 15).
14


In accordance with that principle, the first subparagraph of Article 11C(1) of the Sixth 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 is not received by the taxable person (see, to that effect, judgment of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 16).
16


If the total or partial non-payment of the purchase price occurs without there being a 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 legal proceedings. Since it is conceivable, however, that such a debt will become definitively irrecoverable, the EU legislature intended to leave it to each Member State to decide 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 to be determined by the Member State concerned, or whether such a reduction is not to be allowed in that situation (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 25).
17


However, as the Court has already held, the power to derogate, which is strictly limited to situations of total or partial non-payment, is based on the notion that in certain circumstances and because of the legal situation prevailing in the Member State concerned, non-payment of consideration may be difficult to establish or may only be temporary (judgment of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 18).
18


It follows that the exercise of such a power to derogate must be justified, so that the measures taken by the Member States for its implementation do not undermine the objective of fiscal harmonisation pursued by the Sixth Directive (judgment of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 18).
20


Nevertheless, contrary to the arguments put forward by the Italian and United Kingdom Governments, that reasoning, as noted by the Advocate General in points 32 to 44 of her Opinion, cannot be understood as calling into question the case-law cited in paragraphs 17 and 18 above, to the extent that it would be possible for Member States to exclude altogether reduction of the VAT taxable amount.
21


In that regard, it follows from the Court’s settled case-law that exceptions must be interpreted strictly (see, to that effect, judgments of 20 June 2002, Commission v Germany, C‑287/00, EU:C:2002:388, paragraph 47; of 14 June 2007, Horizon College, C‑434/05, EU:C:2007:343, paragraph 16; and of 21 March 2013, PFC Clinic, C‑91/12, EU:C:2013:198, paragraph 23). It follows from the wording of the second subparagraph of Article 11C(1) of the Sixth Directive that although the Member States have the possibility of derogating from the correction to the taxable amount set out in the first subparagraph, the EU legislature did not confer on them the power to exclude it altogether.
22


That finding is also supported by a purposive interpretation of the second subparagraph of Article 11C(1) of the Sixth Directive. Although it is relevant that the Member States may counteract the inherent uncertainty of the definitive non-payment of an invoice, recalled in paragraph 16 of the present judgment, such a power of derogation cannot extend beyond that uncertainty, and in particular cannot extend to whether a reduction of the taxable amount may not be carried out in situations of non-payment.
23


Moreover, to accept that it is possible for Member States to exclude any reduction of the VAT taxable amount would run counter to the principle of the neutrality of VAT, which means, inter alia, that the trader, as tax collector on behalf of the State, is entirely to be relieved of the burden of tax due or paid in the course of his economic activities, themselves subject to VAT (see, to that effect, judgments of 13 March 2008, Securenta, C‑437/06, EU:C:2008:166, paragraph 25, and of 13 March 2014, Malburg, C‑204/13, EU:C:2014:147, paragraph 41).
25


In that regard, in accordance with the principle of proportionality, which is one of the general principles of EU law, the means employed for the implementation of the Sixth Directive must be appropriate to achieve the objectives stated in that measure and must not go beyond what is necessary in order to attain them (see, by analogy, judgment of 26 April 2012, Commission v Netherlands, C‑508/10, EU:C:2012:243, paragraph 75).
27


That uncertainty is plainly taken into account by depriving the taxable person of his right to reduce the taxable amount for as long as the debt is not definitely unrecoverable, as provided for, in essence, by the national legislation at issue in the main proceedings. However, it is clear that the same objective could also be pursued by granting the reduction when the taxable person demonstrates a reasonable probability that the debt will not be honoured, even if the taxable base is re-evaluated upwards in the event that payment nonetheless occurs. It would thus be for the national authorities to determine, with due regard to the principle of proportionality and subject to review by the courts, the evidence for a probable extended period of non-payment to be provided by the taxable person, according to the specific features of the applicable national law. Such a rule would be an equally effective means of attaining the objective pursued, while being less onerous for the taxable person, who pre-finances the VAT by collecting it on behalf of the State, as recalled in paragraph 23 above.
28


The finding in the preceding paragraph applies a fortiori in the context of national legislation such as that at issue in the main proceedings, under which certainty that the debt is definitively irrecoverable can be obtained, in practice, only around ten years later. Such a period is, in any event, such as to inflict on traders subject to that legislation, when they are confronted with non-payment of an invoice, a cash-flow disadvantage compared to their competitors in other Member States, which would clearly undermine the objective of fiscal harmonisation pursued by the Sixth Directive.