Staatssecretaris van Financiën v Stadeco BV.
Date: 2009-06-18
26. Second, it should be noted that under Article 21(1)(c) of the Sixth Directive, any person who mentions VAT on an invoice or other document serving as invoice is liable to pay that tax. In particular, those persons are liable to pay VAT mentioned on an invoice independently of any obligation to pay it on account of its being a transaction subject to VAT (see, to that effect, Case C‑342/87 Genius Holding  [1989] ECR 4227, paragraph 19; Case C‑454/98 Schmeink & Cofreth and Strobel  [2000] ECR I-6973, paragraph 53; and Case C-35/05 Reemtsma Cigarettenfabriken  [2007] ECR I‑2425, paragraph 23).
28. In stating that the VAT mentioned on an invoice is due regardless of any obligation to pay on the basis of a transaction subject to VAT, Article 21(1)(c) of the Sixth Directive seeks to eliminate the risk of loss of tax revenue which the right to deduct provided for in Article 17 of the Sixth Directive might entail (see, to that effect, Schmeink & Cofreth and Strobel,  paragraphs 57 and 61; C‑78/02 to C‑80/02 Karageorgou and Others  [2003] ECR I-13295, paragraphs 50 and 53; and Reemtsma Cigarettenfabriken , paragraph 23).
29. Even if the exercise of that right to deduct is limited only to taxes corresponding to a transaction subject to VAT (see Genius , paragraph 13), the risk of loss of tax revenue is not in principle completely eliminated as long as the addressee of an invoice incorrectly mentioning VAT could still use it for the purposes of such deduction under Article 18(1)(a) of the Sixth Directive (see, to that effect, Schmeink & Cofreth and Strobel , paragraph 57).
35. In that regard, it should be borne in mind that the Sixth Directive does not make express provision for the case where the VAT is mentioned in error on an invoice when it is not due on the basis of a transaction subject to that tax. Accordingly, so long as this lacuna has not been filled by the Community legislature, it is for the Member States to provide a solution ( Schmeink & Cofreth and Strobel,  paragraphs 48 and 49, and Karageorgou and Others , paragraph 49).
36. The Court has held that, to ensure VAT neutrality, it is for the Member States to provide for the possibility in their internal legal systems of refunding any tax improperly invoiced, once the person who issued the invoice shows that he acted in good faith ( Genius Holding , paragraph 18).
37. However, where the issuer of the invoice has in sufficient time wholly eliminated the risk of any loss in tax revenues, the principle of the neutrality of VAT requires that VAT which has been improperly invoiced can be adjusted without such adjustment being made conditional by the Member States upon the issuer of the relevant invoice having acted in good faith (see Schmeink & Cofreth and Strobel , paragraph 58, and Karageorgou and Others , paragraph 50).
38. In addition, that refund cannot be dependent upon the discretion of the tax authorities ( Schmeink & Cofreth and Strobel , paragraph 68).
39. It should be borne in mind, in that connection, that the measures that the Member States may adopt in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives. They may not therefore be used in such a way that they would have the effect of undermining VAT neutrality, which is a fundamental principle of the common system of VAT established by the relevant Community legislation (see, by way of analogy, Schmeink & Cofreth and Strobel,  paragraph 59 and the case-law cited).
40. Consequently, if reimbursement of the VAT becomes impossible or excessively difficult as a result of the conditions under which applications for reimbursement of tax may be made, those principles may require that the Member States provide for the instruments and the detailed procedural rules necessary to enable the taxable person to recover the unduly invoiced tax (see, to that effect and by way of analogy, Reemtsma Cigarettenfabriken , paragraph 41).
42. Since both a corrected invoice and a credit note clearly indicate to the beneficiary of the services supplied that no VAT is due to the Member State in question and, therefore that that beneficiary does not have any right in that regard to deduct VAT, that requirement can in principle ensure the elimination of the risk of loss of tax revenue. In addition, that requirement clearly does not make the reimbursement of that tax dependent on the discretion of the tax authority.
43. Furthermore, while it is for the national court to assess in the main proceedings whether Stadeco had demonstrated that it had itself completely eliminated in sufficient time the risk of the loss of tax revenue, the Court may, in order to give the national court a useful answer, provide it with all the guidance that it deems necessary (see to that effect, in particular, Case C‑49/07 MOTOE  [2008] ECR I‑0000, paragraph 30, and Case C‑414/07 Magoora  [2008] ECR I‑0000, paragraph 33).
48. In addition, in so far as it appears from the circumstances of the main proceedings that the Netherlands tax authorities have also made the refund of the VAT subject to the payment by the issuer of the invoice in question, to the beneficiary of the services performed, of the amount of tax incorrectly paid, it must be recalled that Community law does not prevent a national legal system from disallowing repayment of charges which have been levied but were not due, where to allow such repayment would lead to unjust enrichment of those having the right (Case C‑309/06 Marks & Spencer  [2008] ECR I‑2283, paragraph 41 and the case-law cited).
49. The existence and the degree of unjust enrichment which repayment of a charge which was levied though not due under Community law entails for a taxable person can be established only following an analysis in which all the relevant circumstances are taken into account (see, to that effect, Marks & Spencer , paragraph 43).