Reemtsma Cigarettenfabriken GmbH v Ministero delle Finanze.
Date: 2007-03-15
23. First of all, it should be recalled that, in paragraph 13 of Genius Holding , the Court found that the right to deduct may be exercised only in respect of taxes actually due, that is to say, the taxes corresponding to a transaction subject to VAT or paid in so far as they were due. It thus found that that right to deduct does not apply to VAT which is due, under Article 21(1)(c) of the Sixth Directive, solely because it is mentioned on the invoice (see, inter alia, Genius Holding , paragraph 19). In that regard, the Court subsequently upheld that case‑law in Case C‑454/98 Schmeink & Cofreth and Strobel  [2000] ECR I‑6973, paragraph 53 and Joined Cases C‑78/02 to C‑80/02 Karageorgou and Others  [2003] ECR I‑13295, paragraph 50).
25. It should be pointed out, in that regard, that it is not the purpose of the Eighth Directive to undermine the scheme introduced by the Sixth Directive (see, inter alia, Case C‑302/93 Debouche  [1996] ECR I‑4495, paragraph 18).
26. In addition, the purpose of the Eighth Directive is to lay down detailed arrangements for the refund of VAT paid in a Member State by taxable persons established in another Member State. Its objective is therefore to harmonise the right to refund as provided for in Article 17(3) of the Sixth Directive (see, inter alia, Case C‑136/99 Monte dei Paschi Di Siena  [2000] ECR I‑6109, paragraph 20). As is apparent from paragraph 20 of this judgment, Articles 2 and 5 of the Eighth Directive refer expressly to Article 17 of the Sixth Directive.
27. In those circumstances, since the right to deduct, within the meaning of Article 17, cannot be extended to VAT unduly invoiced and paid to the tax authorities, it must be found that that VAT is not reimbursable on the basis of the provisions of the Eighth Directive.
37. It must be pointed out in that regard that, in the absence of Community rules on applications for the repayment of taxes, it is for the domestic legal system of each Member State to lay down the conditions under which such applications may be made; those conditions must observe the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those relating to similar claims founded on provisions of domestic law or framed so as to render virtually impossible the exercise of rights conferred by the Community legal order (see, inter alia, Case C‑30/02 Recheio  – Cash & Carry  [2004] ECR I‑6051, paragraph 17, and Case C‑291/03 MyTravel  [2005] ECR I‑8477, paragraph 17).
38. Also, the Sixth Directive does not contain any provisions relating to the adjustment by the issuer of the invoice of VAT which has been improperly invoiced. The Sixth Directive merely defines, in Article 20, the conditions which must be complied with in order that deduction of input taxes may be adjusted at the level of the person to whom goods or services have been provided. In those circumstances, it is for the Member States to lay down the conditions in which improperly invoiced VAT may be adjusted ( Schmeink & Cofreth and Strobel , paragraphs 48 and 49).
39. In the light of the case‑law cited in the two preceding paragraphs, it must be conceded that, in principle, a system such as the one at issue in the main proceedings in which, first, the supplier who has paid the VAT to the tax authorities in error may seek to be reimbursed and, second, the recipient of the services may bring a civil law action against that supplier for recovery of the sums paid but not due observes the principles of neutrality and effectiveness. Such a system enables the recipient who bore the tax invoiced in error to obtain reimbursement of the sums unduly paid.
40. It must also be borne in mind that, according to settled case-law, in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States (see, inter alia, Case C‑78/98 Preston and Others  [2000] ECR I-3201, paragraph 31, and Joined Cases C‑392/04 and C‑422/04 i‑21 Germany and Arcor [2006] ECR I‑0000, paragraph 57).
41. In that regard, as rightly submitted by the Commission, if reimbursement of the VAT becomes impossible or excessively difficult, in particular in the case of the insolvency of the supplier, those principles may require that the recipient of the services to be able to address his application for reimbursement to the tax authorities directly. Thus, the Member States must provide for the instruments and the detailed procedural rules necessary to enable the recipient of the services to recover the unduly invoiced tax in order to respect the principle of effectiveness.
42. The answer to the second part of the second question must therefore be that the principles of neutrality, effectiveness and non-discrimination do not preclude national legislation, such as that at issue in the main proceedings, according to which only the supplier may seek reimbursement of the sums unduly paid as VAT to the tax authorities and the recipient of the services may bring a civil law action against that supplier for recovery of the sums paid but not due. However, where reimbursement of the VAT would become impossible or excessively difficult, the Member States must provide for the instruments necessary to enable that recipient to recover the unduly invoiced tax in order to respect the principle of effectiveness.
44. In that regard, according to settled case‑law of the Court, the prohibition of discrimination is only a specific expression of the general principle of equality in Community law, which requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C‑309/89 Codorniu  v Council  [1994] ECR I‑1853, paragraph 26, and Case C‑354/95 National Farmers’ Union and Others  [1997] ECR I‑4559, paragraph 61).