T-2, družba za ustvarjanje, razvoj in trženje elektronskih komunikacij in opreme, d.o.o. (sedaj v stečaju) v Republika Slovenija.
Date: 2018-02-22
23


It must be recalled that Articles 184 to 186 of the VAT Directive lay down the conditions under which tax authorities may require adjustments to be made by taxable persons. The adjustment mechanism provided for in those articles is an integral part of the VAT deduction scheme established by the VAT Directive. It is intended to enhance the precision of deductions so as to ensure the neutrality of VAT (judgment of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraphs 48 and 50).
24


The principle of neutrality of VAT is maintained, since the system of deduction set out in Title X of the VAT Directive enables the intermediate links in the distribution chain to deduct from their own taxable amount the sums paid by each to its own supplier in respect of VAT on the corresponding transaction and thus pass on to the tax authorities the part of the VAT representing the difference between the price paid by each to its supplier and the price at which it supplied the goods to its purchaser (see, by analogy, judgments of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 33; of 15 October 2002, Commission v Germany, C‑427/98, EU:C:2002:581; and of 29 April 2004, Terra Baubedarf-Handel, C‑152/02, EU:C:2004:268, paragraph 36).
26


Article 185(1) of the VAT Directive states that an adjustment must, in particular, be made where, after the VAT return is made, some change occurs in the factors used to determine the amount to be deducted (see, to that effect, judgment of 13 March 2014, FIRIN, C‑107/13, EU:C:2014:151, paragraph 51).
27


A reading of Articles 184 and 185(1) of the VAT Directive in conjunction with one another reveals that, where an adjustment proves to be necessary because of the change in one of the factors used to determine the amount to be deducted, the amount of that adjustment must be calculated in such a way that the final amount to be deducted corresponds to that to which the taxable person would have been entitled if that change had been initially taken into account (judgment of 16 June 2016, Kreissparkasse Wiedenbrück, C‑186/15, EU:C:2016:452, paragraph 47).
32


As regards the interpretation of Article 185(2) of the VAT Directive, it is clear from the case-law of the Court that, for the purposes of interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives of the rules of which it is part (judgment of 26 October 2017, I, C‑195/16, EU:C:2017:815, paragraph 32).
33


In that regard, it must be noted that Article 90(1) of the VAT Directive, which relates to cases of cancellation, refusal, or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount, and consequently the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 22).
36


The Court has already held that the situation of non-payment of the purchase price, for the purposes of Article 90 of the VAT Directive, does not restore the parties to their original situation. If the total or partial non-payment of the purchase price occurs without there being a cancellation or refusal of the contract, the purchaser remains liable for the agreed price and the seller, even though no longer proprietor of the goods, in principle continues to have the right to receive payment, which it can rely on before the courts. Since it cannot be excluded, however, that such a debt will become definitively irrecoverable, the EU legislature intended to leave it to each Member State to decide whether the situation of non-payment of the purchase price leads to an entitlement to have the taxable amount reduced accordingly under conditions which it determines, or whether such a reduction is not allowed in that situation (judgment of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 29).
37


The power to derogate, which is strictly limited to situations of total or partial non-payment, is based on the notion that, in certain circumstances and because of the legal situation prevailing in the Member State concerned, non-payment of consideration may be difficult to establish or may only be temporary (judgment of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 17).
38


The exercise of such a power to derogate must be justified, so that the measures taken by the Member States for its implementation do not undermine the objective of fiscal harmonisation pursued by the VAT Directive (judgment of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 18).
39


It follows from the foregoing that the non-payment is characterised by the inherent uncertainty that stems from its non-definitive nature (judgment of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 30).
40


Although it is relevant that the Member States may counteract that uncertainty, such a power of derogation cannot extend beyond that uncertainty, and in particular cannot extend to whether a reduction of the taxable amount may not be carried out in situations of non-payment (judgment of 23 November 2017, Di Maura, C‑246/16, EU:C:2017:887, paragraph 22).
43


Furthermore, with regard to the criteria to be applied in the assessment of the finality or otherwise of a claim, it must be recalled that consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT (judgments of 7 October 2010, Loyalty Management UKand Baxi Group, C‑53/09 and C‑55/09, EU:C:2010:590, paragraph 39, and of 20 June 2013, Newey, C‑653/11, EU:C:2013:409, paragraph 42).
50


In that regard, the Court has made it clear that Member States, when exercising an option under the VAT Directive, may choose the legislative technique which they regard as the most appropriate (see, to that effect, judgments of 4 June 2009, SALIX Grundstücks-Vermietungsgesellschaft, C‑102/08, EU:C:2009:345, paragraph 56, and of 4 October 2012, PIGI, C‑550/11, EU:C:2012:614, paragraph 33). Thus, they may, for example, simply incorporate into national legislation the formula used in that directive or an equivalent expression, or set out exhaustively in a list the situations in which, by derogation from Article 185(1) of that directive, there is no need to adjust the initial deductions.
51


The fact that there is no mention of transactions remaining totally or partially unpaid in such a list may be regarded as the result of the exercise by the Member State of the power of derogation granted to it under the second subparagraph of Article 185(2) of the VAT Directive (see, by analogy, judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 24).
52


Since the referring court raises the issue of compliance with the requirement of clarity and certainty in legal situations, it must be recalled that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application be foreseeable by those subject to them (judgment of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 28).