A-PACK CZ s.r.o. v Odvolací finanční ředitelství.
Date: 2019-05-08
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It is settled case-law of the Court that Article 90(1) of Directive 2006/112, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply which gave rise to the payment of VAT 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 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 collect an amount of VAT exceeding the tax which the taxable person received (see, inter alia, judgment of 6 December 2018, Tratave, C‑672/17, EU:C:2018:989, paragraph 29 and the case-law cited).
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However, as the Court has already held, that power to derogate in the case 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 (see, to that effect, judgments of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 18; of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 17; and of 22 February 2018, T‑2, C‑396/16, EU:C:2018:109, paragraph 37).
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It follows that the exercise of that power must be justified if the measures taken by the Member States for its implementation are not to undermine the objective of fiscal harmonisation pursued by Directive 2006/112 (see, to that effect, judgments of 3 July 1997, Goldsmiths, C‑330/95, EU:C:1997:339, paragraph 18; of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 18; and of 22 February 2018, T‑2, C‑396/16, EU:C:2018:109, paragraph 38) and it cannot allow the Member States to exclude altogether reduction of the VAT taxable amount in the event of non-payment (see, to that effect, judgment of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraphs 20 and 21).
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That conclusion is also supported by a teleological interpretation of Article 90(2) of Directive 2006/112. Although it is relevant that the Member States may counteract the uncertainty as to the non-payment of an invoice or the definitive nature of that non-payment, 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 (judgments of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 22, and of 22 February 2018, T‑2, C‑396/16, EU:C:2018:109, paragraph 40).
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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 which are themselves subject to VAT (see, to that effect, judgment of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 23).
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Likewise, although Article 273 of Directive 2006/112, also invoked by the Czech Republic in support of its interpretation, allows Member States to impose obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, it follows from settled case-law of the Court that such measures may not, in principle, derogate from the rules relating to the taxable amount except within the limits strictly necessary for achieving that specific aim, since they must have as little effect as possible on the objectives and principles of Directive 2006/112 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, judgment of 6 December 2018, Tratave, C‑672/17, EU:C:2018:989, paragraph 33 and the case-law cited), which constitutes a fundamental principle of the common system of VAT established by the relevant EU legislation.