Ministre du Budget and Ministre de l'Economie et des Finances v Société Monte Dei Paschi Di Siena.
Date: 2000-07-13
20 It must be observed that, pursuant to Article 17(4) of the Sixth Directive, the purpose of the Eighth Directive is to lay down detailed arrangements for the refund of VAT paid in a Member State by taxable persons established in another Member State. Its objective is therefore to harmonise the right to refund as provided for in Article 17(3) of the Sixth Directive.
23 The Court has clarified the link existing between the right to deduction in the Member State of establishment and the right to a refund in another Member State where the expenditure is incurred. It has held that a taxable person who benefits from exemption and is consequently not entitled to deduct input tax is not, in accordance with the objective pursued by the VAT directives, entitled to a refund of VAT paid in another Member State either (Case C-302/93 Debouche v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-4495, paragraph 15).
24 In the particular case where the goods and services are used by the taxable person both for transactions giving rise to a right to deduction and for transactions not giving rise to any such right, Article 17(5) of the Sixth Directive provides that only such proportion of the VAT shall be deductible as is attributable to the former transactions. That proportion is to be determined, in accordance with Article 19 of the Sixth Directive, for all the transactions carried out by the taxable person.
26 It must be inferred from the foregoing that, if that taxable person incurs expenditure in a Member State other than the Member State of establishment for the purposes both of his taxed transactions and his exempt transactions in the latter State, he has a right of partial refund in the first State.
27 In order to determine the amount of any refund in circumstances such as those in point in the main proceedings it is appropriate, pursuant to Article 2 of the Eighth Directive, to apply the provisions of Article 17(3)(a) of the Sixth Directive and verify whether the transactions in question would give rise to a right to deduction in the Member State of refund.
28 Thus, in the case of a taxable person carrying out taxed transactions and exempt transactions in the Member State where he is established, it is appropriate to consider whether the former transactions would also give rise to a right to deduction in the Member State of refund in the event of their being carried out there. If that is not the case, the said taxed transactions cannot be taken into account in calculating the amount of the refund. The apportionment carried out in accordance with Article 19 of the Sixth Directive must therefore, if necessary, be adjusted by reference to the transactions which would give rise to a right to deduction if they were carried out in the Member State of refund.
31 In that connection it must be observed that, whilst the Sixth Directive does not specify all the information which a Member State required to make a refund may need, it nevertheless imposes on it an obligation to pay a refund where the conditions are fulfilled for the VAT to be deductible in the Member State of establishment and in the Member State of refund, provided that the taxable person has incurred expenditure giving rise to a right to deduction in the latter State for the purposes of his transactions in the Member State where he is established. To facilitate compliance with that obligation, Article 6 of the Eighth Directive, in particular, enables the Member State of refund to ask the taxable person to provide the information needed to appraise the merits of his application for a refund.