Banca Antoniana Popolare Veneta SpA v Ministero dell'Economia e delle Finanze and Agenzia delle Entrate.
Date: 2011-12-15
21. First of all, it should be noted that, as a general rule, the Court will refrain from considering the principle of tax neutrality with a view to ascertaining whether EU law precludes national rules which lay down time-limits within which a VAT refund must be claimed, failing which the action is time-barred (see, to that effect, Case C‑85/97 SFI  [1998] ECR I‑7447, paragraphs 22 to 36; Case‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraphs 22 to 47; and Case C‑472/08 Alstom Power Hydro  [2010] ECR I‑623, paragraphs 14 to 22).
23. In paragraph 42 of Reemtsma Cigarettenfabriken , the Court held, in particular, that the principle of effectiveness does not preclude national legislation under which only the supplier/provider of services may seek reimbursement of the sums paid, but not due, by way of VAT to the tax authorities and the recipient of those services may bring a civil law action against that supplier/provider for recovery of sums paid but not due.
24. The Court has also stated that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings, in the interests of legal certainty, which protects both the taxpayer and the authorities concerned. Such time-limits do not make it virtually impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, Case C‑228/96 Aprile  [1998] ECR I‑7141, paragraph 19, and Case C‑262/09 Meilicke and Others  [2011] ECR I‑0000, paragraph 56).
25. That is the position in the case of a two-year time-limit since, in principle, that enables any normally attentive taxable person validly to assert the rights derived from EU law (see, to that effect, Alstom Power Hydro , paragraphs 20 and 21). This is true also of a two-year time-limit in respect of the right to a refund of VAT paid, but not due, to the tax authority.
26. The Court has also held that the principle of effectiveness is not infringed where the time-limits prescribed by national law are allegedly more advantageous for the tax authorities than the time-limits in force for individuals (see Joined Cases C‑89/10 and C‑96/10 Q-Beef and Bosschaert  [2011] ECR I‑0000, paragraph 42).
28. The Court has held, however, that where reimbursement of the VAT would become impossible or excessively difficult, the Member States must, in order to respect the principle of effectiveness, provide the instruments necessary to enable the recipient of the services to recover the tax which was invoiced but not due (see, to that effect, Reemtsma Cigarettenfabriken , paragraph 42).
30. It also follows from the case-law that the principle of effectiveness would be infringed if the taxable person had neither the right to obtain reimbursement of the tax concerned during the period allowed for bringing a claim against the tax authority, nor – after an action for recovery of sums paid but not due has been brought against him by his clients subsequent to the expiry of that period – the possibility of bringing proceedings against the tax authority, with the result that the consequences of the VAT payments made but not due, attributable to the State, would be borne by the taxable person alone (see, by analogy, Q-Beef and Bosschaert , paragraph 43).
41. In such a situation, the tax authority must take account of the particular situations of the economic operators and, where appropriate, provide for adjustments to the way in which its new legal assessments of those transactions are applied (see, to that effect, Case C‑201/08 Plantanol  [2009] ECR I‑8343, paragraph 49).