Cabinet Medical Veterinar Dr. Tomoiagă Andrei v Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Maramureș.
Date: 2015-07-09
21. In those circumstances, the Tribunalul Maramureș decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 273 and point 18 of Article 287 of Directive [2006/112] be interpreted as meaning that the national tax authority was under an obligation to register a taxable person for VAT purposes and to find that person liable to pay the VAT, and the related ancillary debts, arising from the fact that the tax exemption threshold had been exceeded, with effect from the date on which the taxable person submitted tax returns to the competent tax authority showing that the VAT exemption threshold had been exceeded?
(2) If the answer to Question 1 is in the affirmative, does the principle of legal certainty preclude national practice on the basis of which the tax authority has established retroactively that a taxable person is liable to pay VAT because the supply of veterinary services is not exempt from VAT and the tax exemption threshold was exceeded, in a situation in which:
– the tax authority did not, of its own motion, register the taxable person for VAT purposes and did not find that person liable to pay VAT from the moment when the taxable person submitted the tax returns showing that the threshold had been exceeded, but did so only later, after the Detailed Rules for the Implementation of the Tax Code had been amended by Regulation No 1620/2009 to the effect that the exemption provided for under Article 141(1)(a) of the Tax Code does not apply to the supply of veterinary services, as established by the judgment in Commission  v Italy 122/87 EU:C:1988:256, and in relation to a period preceding that amendment;
– through the tax returns submitted by the taxable person, the tax authority had become aware, before the Detailed Rules for the Implementation of the Tax Code were amended by Regulation No 1620/2009 in the manner described above, that the exemption threshold had been exceeded;
– before the publication of Regulation No 1620/2009, the tax authority did not adopt in its area of competence — which also covers the taxable person in the main proceedings — any administrative tax measures designed to establish that taxable persons which are veterinary practices had failed to register for the purposes of VAT incurred as a consequence of the VAT payment exemption threshold being exceeded and, consequently, intended to establish the liability of those persons for VAT;
– during the period preceding the adoption and entry into force of Regulation No 1620/2009, the judgment in Commission  v Italy 122/87 EU:C:1988:256 had not been published in any form in the Romanian language?’
Consideration of the questions referred
The first question
25. The Court has established that it follows from that provision, and from Articles 2 and 250(1) of Directive 2006/112 and from Article 4(3) TEU that every Member State is under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion (see, to that effect, judgments in Commission  v Italy , C‑132/06, EU:C:2008:412, paragraphs 37 and 46, and Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 25).
26. It follows in particular that Member States are required to check taxable persons’ returns, accounts and other relevant documents, and to calculate and collect the tax due (see judgments in Commission  v Italy , C‑132/06, EU:C:2008:412, paragraph 37; Profaktor Kulesza , Frankowski, Jóźwiak, Orłowski , C‑188/09, EU:C:2010:454, paragraph 21; and Enel Maritsa Iztok 3 , C‑107/10, EU:C:2011:298, paragraph 52).
28. In the first place, although Article 214(1) of Directive 2006/112 provides that Member States must take the measures necessary to ensure that taxable persons for VAT purposes are identified, the fact remains that, under Article 213(1) of that directive, it is for the interested party to state when his activity as a taxable person commences, changes or ceases. Furthermore, the Court has also held that it follows from the wording of Article 214(1) of that directive that Member States have a certain discretion when they adopt measures to ensure the identification of taxable persons for the purposes of VAT (judgment in Ablessio , C‑527/11, EU:C:2013:168, paragraph 22).
29. In the second place, Member States are required to ensure compliance with the obligations to which taxable persons are subject, whilst enjoying in that respect a certain measure of latitude, inter alia, as to how they use the means at their disposal (see judgments in Commission  v Italy , C‑132/06, EU:C:2008:412, paragraph 38, and Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski, C‑188/09, EU:C:2010:454, paragraph 22) subject to the obligation to ensure effective collection of the European Union’s own resources and not to create significant differences in the manner in which taxable persons are treated, either within a Member State or throughout the Member States (judgment in Commission  v Italy , C‑132/06, EU:C:2008:412, paragraph 39).
33. According to the settled case-law of the Court, the principles of legal certainty and protection of legitimate expectations must be respected by the EU institutions, but also by Member States in the exercise of the powers conferred on them by EU directives (see, to that effect, judgments in Gemeente Leusden and Holin Groep , C‑487/01 and C‑7/02, EU:C:2004:263, paragraph 57; ‘Goed Wonen’ , C‑376/02, EU:C:2005:251, paragraph 32; and Elmeka NE , C‑181/04 to C‑183/04, EU:C:2006:563, paragraph 31).
34. In the first place, with regard to the principle of legal certainty, as the Court has repeatedly held, it follows, in particular, that EU legislation must be certain and its application foreseeable by those subject to it, and that requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them (judgment in Ireland  v Commission , 325/85, EU:C:1987:546, paragraph 18).
35. Similarly, in areas covered by EU law, the Member States’ legal rules must be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed (see judgment in Commission  v Italy , 257/86, EU:C:1988:324, paragraph 12).
39. Admittedly, it also follows from the principle of legal certainty that the tax position of the taxable person cannot be open to challenge indefinitely (see, to that effect, judgment in Fatorie , C‑424/12, EU:C:2014:50, paragraph 46).
40. However, the Court has already held that the principle of legal certainty does not preclude a practice of the national tax authorities whereby, within the limitation period, they revoke a decision by which they granted the taxable person the right to deduct VAT and then, following a fresh investigation, order him to pay that VAT together with default interest (see, to that effect, judgment in Fatorie , C‑424/12, EU:C:2014:50, paragraph 51).
42. Consequently, it cannot reasonably be argued that the principle of legal certainty, in circumstances such as those in the main proceedings, precludes a tax authority from carrying out, within the limitation period, an assessment for VAT relating to veterinary services already provided and which should have been subject to VAT.
43. In the second place, with regard to the principle of protection of legitimate expectations, the right to rely on that principle extends to any person in a situation where an administrative authority has caused him to entertain expectations which are justified by precise assurances provided to him (see, to that effect, judgment in Europäisch Iranische Handelsbank v Council , C‑585/13 P, EU:C:2015:145, paragraph 95).
44. In that regard, it must be determined whether the conduct of the administrative authority gave rise to a reasonable expectation in the mind of a reasonably prudent economic operator, and if that is the case, to establish whether that expectation is legitimate (see, to that effect, judgment in Elmeka , C‑181/04 to C‑183/04, EU:C:2006:563, paragraph 32 and the case-law cited).