Proceedings brought by Degano Trasporti Sas di Ferrucio Degano & C.
Date: 2016-04-07
16


National courts may refer a question to the Court if there is a case pending before them and if they are called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (judgments in Grillo Star Fallimento, C‑443/09, EU:C:2012:213, paragraph 21, and Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 19) and the choice of the most appropriate time to refer a question for a preliminary ruling lies within their exclusive jurisdiction (see, to that effect, judgments in X, C‑60/02, EU:C:2004:10, paragraph 28, and AGM-COS.MET, C‑470/03, EU:C:2007:213, paragraph 45).
19


In that regard, it should be borne in mind that it follows from Articles 2, 250(1) and 273 of the VAT Directive, and from Article 4(3) TEU that the Member States are required to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory (judgments in Commission v Italy, C‑132/06, EU:C:2008:412, paragraph 37; Belvedere Costruzioni, C‑500/10, EU:C:2012:186, paragraph 20; Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 25; and WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 41).
20


Under the common system of VAT, the Member States are required to ensure compliance with the obligations to which taxable persons are subject, and they enjoy in that respect a certain latitude, inter alia, as to how they use the means at their disposal (judgments in Commission v Italy, C‑132/06, EU:C:2008:412, paragraph 38, and Belvedere Costruzioni, C‑500/10, EU:C:2012:186, paragraph 21).
21


That latitude is nevertheless limited by the obligation to ensure effective collection of the EU’s own resources and not to create significant differences in the manner in which taxable persons are treated, either within a Member State or throughout the Member States. The VAT Directive must be interpreted in accordance with the principle of fiscal neutrality inherent in the common system of VAT, according to which economic operators carrying out the same transactions must not be treated differently in relation to the levying of VAT. Any action by the Member States concerning the collection of VAT must comply with that principle (see, to that effect, judgments in Commission v Italy, C‑132/06, EU:C:2008:412, paragraph 39; Commission v Germany, C‑539/09, EU:C:2011:733, paragraph 74; and Belvedere Costruzioni, C‑500/10, EU:C:2012:186, paragraph 22).
22


The European Union’s own resources include, in particular, as provided in Article 2(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), revenue from the application of a uniform rate to the harmonised VAT basis of assessment determined according to European Union rules. There is thus a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second (judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 26 and the case-law cited).
28


In the light of those circumstances, the admission of a partial payment of a VAT claim by an insolvent trader in the context of an arrangement with creditors, which, unlike the measures at issue in the cases which gave rise to the judgments in Commission v Italy (C‑132/06, EU:C:2008:412) and Commission v Italy (C‑174/07, EU:C:2008:704) to which the referring court refers, does not constitute a general and indiscriminate waiver of collecting VAT, is not contrary to the obligation on Member States to ensure collection of all of the VAT due on their territory as well as the effective collection of the European Union’s own resources.