Hristomir Marinov v Direktor na Direktsia "Obzhalvane I upravlenie na izpalnenieto" - grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
Date: 2013-05-08
26. It is clear from the wording of Article 18(c) of the VAT Directive that it covers the cessation of the taxable economic activity in general, without differentiating between the causes or the circumstances of that cessation, and excluding only the cases referred to in Article 19 of that directive.
27. The main objective of Article 18(c) of the VAT Directive is to avoid a situation where the final consumption of goods on which the VAT became deductible is untaxed following the cessation of the taxable economic activity, regardless of the causes or circumstances of that cessation.
28. Accordingly, the answer to the first question is that, on a proper construction of Article 18(c) of the VAT Directive, that provision also covers the cessation of the taxable economic activity resulting from the removal of the taxable person from the VAT register.
The second and fourth questions
30. In that respect, it must be observed that the determination of the taxable amount of a transaction such as that contemplated in Article 18(c) of the VAT Directive is governed by Article 74, and not Article 80, of that directive. In accordance with the Court’s case-law, the conditions for the application of Article 80 of the VAT Directive are exhaustive and national legislation cannot, on the basis of that provision, provide that the taxable amount is to be the open market value of the transaction in cases other than those listed thereunder (see Joined Cases C‑621/10 and C‑129/11 Balkan and Sea Properties and Provadinvest [2012] ECR I‑0000, paragraphs 45, 51 and 52). It is not apparent from the order for reference that the situation under consideration falls within one of the cases listed in Article 80 of the VAT Directive.
31. Article 74 of the VAT Directive provides that, for transactions such as that at issue in the present case, the taxable amount is to be the purchase price of the goods or of similar goods or, in the absence of a purchase price, the cost price, determined at the time when those transactions take place. Article 74 of the VAT Directive constitutes a derogation from the general rule set out in Article 73.
32. It must be borne in mind that the Court has held that ‘the purchase price, determined at the time of allocation’, for the purposes of Article 74 of the VAT Directive, refers to the residual value of the goods at the time of allocation (see Joined Cases C‑322/99 and C‑323/99 Fischer and Brandenstein [2001] ECR I‑4049, paragraph 80). In respect of an application of a good also covered by that provision, the Court has held that the taxable amount was the value of the good in question, determined at the time of the application, and which corresponds to the market price for a similar good, account being taken of the costs of transforming that good (see, inter alia, Case C‑299/11 Gemeente Vlaardingen [2012] ECR I‑0000, paragraph 30).
33. It follows that, in the event of the cessation of the taxable economic activity, the taxable amount of the transaction is the value of the goods in question determined at the time of that cessation, which therefore takes into account the change in the value of those assets between their acquisition and the cessation.
37. According to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time-limit or has transposed it incorrectly (see Case C‑549/11 Orfey Balgaria  [2012] ECR I‑0000, paragraph 51 and the case-law cited).
39. Furthermore, it must be recalled that it is for the referring court, to the extent of its discretion under national law, to interpret and apply national law in conformity with the requirements of European Union law and, where such an interpretation is not possible, to disapply any provision of domestic law that would be contrary to those requirements (see, to that effect, Balkan and Sea Properties and Provadinvest , paragraph 54 and the case-law cited).