Fortunata Silvia Fontana v Agenzia delle Entrate - Direzione provinciale di Reggio Calabria.
Date: 2018-11-21
25


In that regard, it is necessary to recall that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 26 October 2017, BB construct, C‑534/16, EU:C:2017:820, paragraph 16 and the case-law cited).
30


In that regard, it should be noted that, in accordance with the general rule set out in Article 73 of the VAT Directive, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person (judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 33 and the case-law cited).
33


The Court has held that it follows from the first paragraph of Article 273, from Article 2 and Article 250(1) of the VAT Directive, 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 (judgments of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 41 and the case-law cited, and of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 18).
34


In that regard, it should be noted that, if a taxable person does not declare all of the turnover achieved, that should not hinder the collection of VAT and it is for the national competent authorities to re-establish the situation that would have prevailed in the absence of such behaviour by the taxable person (see, to that effect, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 42).
35


The Court has held that, outside the limits laid down therein, the provisions of Article 273 of the VAT Directive do not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of achieving the objectives of ensuring the collection of VAT and preventing evasion. However, they must exercise their power in accordance with EU law and its general principles, and, in particular, in accordance with the principles of proportionality and fiscal neutrality (see, to that effect, in particular, judgments of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraphs 43 and 44 and the case-law cited, and of 17 May 2018, Vámos, C‑566/16, EU:C:2018:321, paragraph 41).
37


Nevertheless, that national legislation and the application of that legislation can comply with EU law only if they comply with the principles of fiscal neutrality and proportionality (see, to that effect, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 44).
38


It is for the referring court to determine whether the national measures at issue in the main proceedings are compatible with the requirements stated in the previous paragraph. The Court may, however, provide it with any helpful guidance to resolve the dispute before it (see, to that effect, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 46).
39


As regards the principle of fiscal neutrality, according to the Court’s case-law, the right of taxable persons to deduct from the VAT that they are liable to pay the VAT due or paid on goods purchased and services received by them as inputs is a fundamental principle of the common system of VAT. The deduction system is intended to relieve the trader entirely of the burden of the VAT due or paid in the course of all his economic activities, provided that they are in principle themselves subject to VAT (see, to that effect, judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraphs 56 and 57 and the case-law cited).
40


As the Court has repeatedly held, the right of deduction is an integral part of the VAT scheme and may not, in principle, be limited (judgment of 26 April 2018, Zabrus Siret, C‑81/17, EU:C:2018:283, paragraph 33 and the case-law cited).
43


In that context, it should be noted that, throughout the tax adjustment procedure, the taxable person’s rights of defence must be guaranteed, which means in particular that, before adopting a measure which will adversely affect a taxable person, he must be placed in a position in which he can effectively make known his views as regards the information on which the authorities intend to base their decision (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30).