Cabinet de avocat UR v Administraţia Sector 3 a Finanţelor Publice prin Direcţia Generală Regională a Finanţelor Publice Bucureşti and Others.
Date: 2020-07-16
15


The terms used in that provision, in particular the term ‘any person who’, give the notion of ‘taxable person’ a broad definition focused on independence in the pursuit of an economic activity to the effect that all persons, natural or legal, both public and private, even entities devoid of legal personality, which, in an objective manner, satisfy the criteria set out in that provision, are regarded as being taxable persons for the purposes of VAT (judgments of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 28, and of 12 October 2016, Nigl and Others, C‑340/15, EU:C:2016:764, paragraph 27).
18


Furthermore, it should be noted that, under Directive 2006/112, the scope of VAT is very wide, in that Article 2, which concerns taxable transactions, refers not only to the importation of goods but also to the intra-Community acquisition of goods, and the supply of goods or services for consideration within the territory of the country by a taxable person acting as such (judgments of 19 July 2012, Rēdlihs, C‑263/11, EU:C:2012:497, paragraph 24, and 3 September 2015, Asparuhovo Lake Investment Company, C‑463/14, EU:C:2015:542, paragraph 33).
19


Furthermore, in paragraph 49 of the judgment of 17 June 2010, Commission v France (C‑492/08, EU:C:2010:348), the Court held that a Member State may not apply a reduced rate of VAT to the supply of services by lawyers for which they are paid in full or in part by the State under the legal aid scheme. That assessment necessarily presupposes that those services were regarded as being subject to VAT and that those lawyers, described as ‘private profit-making entities’ in that judgment, were regarded as acting as taxable persons.
22


In that connection, attention should be drawn to the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata. In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that regard can no longer be called into question (judgments of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 22; of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 26; and of 4 March 2020, Telecom Italia, C‑34/19, EU:C:2020:148, paragraph 64).
23


Therefore, EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law (judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 27 and the case-law cited).
24


In particular, EU law does not require a national judicial body automatically to go back on a decision having the authority of res judicata in order to take into account the interpretation of a relevant provision of EU law adopted by the Court (judgments of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 28, and of 4 March 2020, Telecom Italia, C‑34/19, EU:C:2020:148, paragraph 66).
25


In the absence of EU legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (judgments of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 24; of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 54; and of 4 March 2020, Telecom Italia, C‑34/19, EU:C:2020:148, paragraph 58).
26


Consequently, if the applicable domestic rules of procedure provide the possibility, under certain conditions, for a national court to go back on a decision having the authority of res judicata in order to render the situation compatible with national law, that possibility must prevail if those conditions are met, in accordance with the principles of equivalence and effectiveness, so that the situation at issue is brought back into line with EU law (judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 29 and the case-law cited).
30


Consequently, in the event that the referring court has the possibility, under the applicable procedural rules of Romanian law, of dismissing the action in the main proceedings, it is for that court to make use of that possibility and to ensure that EU law is given full effect, in the present case Directive 2006/112, and if necessary to disapply, on its own authority, the interpretation which it adopted in its judgment of 30 April 2018, since that interpretation is not compatible with EU law (see, by analogy, judgments of 4 March 2020, Telecom Italia, C‑34/19, EU:C:2020:148, paragraph 61, and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 44).
31


If, on the contrary, that court considers that the application of the principle of res judicata would prevent a judicial decision such as the judgment of 30 April 2018 from being called into question, even if that decision entails a breach of EU law, the application of that principle cannot also prevent that court from calling into question any finding relating to a common issue decided by such a decision, during the judicial review of another decision taken by the competent tax authority in respect of the same taxpayer or taxable person, but relating to a different tax year (see, to that effect, judgment of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 29).
32


If the principle of res judicata were to be applied in that manner, the effect would be that, if ever the judicial decision that had become final were based on an incorrect interpretation of EU rules on VAT, those rules would continue to be misapplied for each new tax year, without it being possible to rectify that incorrect interpretation (see, to that effect, judgment of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 30).
33


Such extensive obstacles to the effective application of the EU rules on VAT cannot reasonably be regarded as justified in the interests of legal certainty and must therefore be considered to be contrary to the principle of effectiveness (see, to that effect, judgment of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506, paragraph 31).