SMS group GmbH v Direcţia Generală Regională a Finanţelor Publice Bucureşti.
Date: 2017-09-21
34


In order to answer this question, it should be borne in mind, first of all, that the aim of the Eighth Directive is to establish detailed rules for the refund of VAT paid in a Member State by taxable persons established in another Member State and thus to harmonise the right to refund arising from Article 170 of the VAT Directive (judgment of 28 June 2007, Planzer Luxembourg, C‑73/06, EU:C:2007:397, paragraph 34 and the case-law cited).
38


In this connection, it should be noted that the right of a taxable person established in a Member State to obtain the refund of VAT paid in another Member State, in the manner governed by the Eighth Directive, is the counterpart of such a person’s right established by the VAT Directive to deduct input VAT in his own Member State (judgment of 25 October 2012, Daimler and Widex, C‑318/11 and C‑319/11, EU:C:2012:666, paragraph 41 and the case-law cited).
39


According to the settled case-law of the Court, that right to deduct is an integral part of the VAT scheme and in principle may not be limited. It is exercisable immediately in respect of all the taxes charged on transactions relating to inputs (judgment of 22 June 2016, Gemeente Woerden, C‑267/15, EU:C:2016:466, paragraph 31 and the case-law cited).
40


The deduction system, and accordingly the refund system, is intended to relieve the operator entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT therefore ensures complete neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject to VAT (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 35 and the case-law cited).
42


That right to refund arises, in accordance with Articles 70 and 167 of the VAT Directive, at the time when the tax becomes chargeable, namely when the goods are imported (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 36 and the case-law cited).
43


With regard, in the first place, to the question whether SMS Meer can be considered to be a taxable person within the meaning of Article 1 of the Eighth Directive, it should be borne in mind that that provision lays down, in essence, two cumulative conditions. First, the taxable person in question must not possess, during the period referred to in Article 7(1) of that directive, any establishment in the Member State from which he is claiming a refund. Secondly, he must not during that period have made any supplies of goods or services in respect of which the place of supply is deemed to be in that Member State, with the exception of certain supplies of specified services (see, to that effect, judgment of 6 February 2014, E.ON Global Commodities, C‑323/12, EU:C:2014:53, paragraph 42).
45


As concerns, in the second place, whether SMS Meer acted as a taxable person on importation of the goods at issue into Romania, it should be noted that a ‘taxable person’ is defined, according to Article 9(1) of the VAT Directive, by reference to the term ‘economic activity’ (judgment of 29 November 2012, Gran Via Moineşti, C‑257/11, EU:C:2012:759, paragraph 24 and the case-law cited).
46


An individual who imports goods for the purposes of an economic activity within the meaning of that provision does so as a taxable person, even if the goods are not used immediately for that economic activity (see, to that effect, judgment of 29 November 2012, Gran Via Moineşti, C‑257/11, EU:C:2012:759, paragraph 25 and the case-law cited). It is settled case-law that a person who incurs investment expenditure with the intention, confirmed by objective evidence, of carrying out an economic activity within the meaning of Article 9(1) of the VAT Directive must be regarded as a taxable person (see, to that effect, judgments of 14 February 1985, Rompelman, 268/83, EU:C:1985:74, paragraph 24; of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 17; and of 22 October 2015, Sveda, C‑126/14, EU:C:2015:712, paragraph 20 and the case-law cited).
47


Whether a taxable person acts as such is a question of fact which must be assessed in the light of all the circumstances of the case, including the nature of the asset concerned and the period between the acquisition of the asset and its use for the purposes of the taxable person’s economic activity (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 41 and the case-law cited).
48


In these circumstances, it should be borne in mind that, in preliminary ruling proceedings, the national court has sole jurisdiction to determine the facts in the case before it and to interpret the national legislation. However, the Court, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file in the main proceedings and on the observations submitted to it, in order to enable the national court to give judgment (judgment of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraph 37 and the case-law cited).
55


It is settled case-law of the Court that, in the absence of fraud or abuse, and subject to any adjustments which may be made in accordance with the conditions laid down by the VAT Directive, the right of refund, once it has arisen, is retained (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 46 and the case-law cited).
56


More specifically, where the taxable person has been unable to use the goods or services which gave rise to a refund in the context of the planned transaction by reason of circumstances beyond his control, the right of refund is retained since, in such a case, there is no risk of fraud or abuse capable of justifying a refusal to refund (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 47 and the case-law cited). Such considerations have all the more reason to apply to a taxable person, such as SMS Meer, given that, according to its statements, it had no other use for the goods at issue.