Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága.
Date: 2013-05-16
21. In PARAT Automotive Cabrio , the Court first of all pointed out, at paragraph 15, that the right to deduct VAT, as an integral part of the VAT scheme, is a fundamental principle underlying the common system of VAT, and in principle may not be limited. Next, it held, at paragraph 20, that national legislation which contains a general limitation of the right to deduct VAT applicable to every acquisition of goods benefitting from a subsidy financed from public funds is not permissible under Article 17(2) of the Sixth Directive. Finally, the Court stated at paragraphs 33 to 35 of that Article 17(2) of the Sixth Directive confers rights on individuals which they may invoke before a national court in order to challenge national rules that are incompatible with that provision. A taxable person having been subject to such a measure must therefore be able to recalculate his VAT debt in accordance with Article 17(2) of the Sixth Directive, in so far as the goods and services have been used for the purposes of taxable transactions.
22. It is settled case-law that the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court. The Member State is therefore in principle required to repay charges levied in breach of Community law (see, inter alia, Case C-591/10 Littlewoods Retail and Others  [2012] ECR I-0000, paragraph 24 and the case-law cited).
24. It appears from this that the right to the recovery of sums unduly paid helps to offset the consequences of the duty’s incompatibility with EU law by neutralising the economic burden which that duty has unduly imposed on the operator who, in the final analysis, has actually borne it (Case C‑94/10 Danfoss and Sauer-Danfoss  [2011] ECR I-0000, paragraph 23).
25. However, by way of exception, such repayment can be refused where it entails unjust enrichment of the persons concerned. The protection of the rights so guaranteed by the legal order of the European Union does not require repayment of taxes, charges and duties levied in breach of European Union law where it is established that the person required to pay such charges has actually passed them on to other persons (Case C‑398/09 Lady & Kid and Others  [2011] ECR I-0000, paragraph 18).
26. In the absence of EU rules governing claims for the repayment of taxes, it is for the domestic legal system of each Member State to lay down the conditions under which those claims may be made; subject, nevertheless, to observance of the principles of equivalence and effectiveness ( Danfoss and Sauer-Danfoss , paragraph 24 and the case-law cited).
27. In that regard, given the purpose of the right to the recovery of sums unduly paid, as recalled in paragraph 24 above, observance of the principle of effectiveness requires that the conditions under which an action may be brought for recovery of sums unduly paid be fixed by the Member States, pursuant to the principle of procedural autonomy, in such a way that the economic burden of the duty unduly paid can be neutralised ( Danfoss and Sauer-Danfoss , paragraph 25).
30. The question whether the repayment claimed in the dispute in the main proceedings seeks only to neutralise the economic burden of the tax unduly paid or, conversely, could lead to unjust enrichment for the benefit of the taxable person, is a question of fact to be determined by the national court, which is free to assess the evidence adduced before it following an economic analysis in which all the relevant circumstances are taken into account (see, to that effect, Case C‑147/01 Weber’s Wine World and Others  [2003] ECR I-11365, paragraphs 96 and 100).
31. In preliminary ruling proceedings, the Court, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, by analogy, Case C‑167/97 Seymour-Smith and Perez  [1999] ECR I‑623, paragraph 68) and Case C-381/99 Brunnhofer  [2001] ECR I-4961, paragraph 65).