Teritorialna direktsia na Natsionalnata agentsia za prihodite — Plovdiv v Rodopi-M 91 OOD.
Date: 2013-06-20
27. In accordance with settled case-law, the Court can, however, decline to rule on a request for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the facts of the main action or to its subject-matter, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Case C‑11/07 Eckelkamp and Others  [2008] ECR I‑6845, paragraph 28 and the case-law cited).
31. The VAT Directive does not lay down expressly a system of penalties in the event of infringement of the obligations referred to in that directive which are owed by taxable persons. However, it is settled case-law that, in the absence of harmonisation of European Union legislation in the field of the penalties applicable in cases where conditions laid down by arrangements under such legislation are not complied with, Member States retain the power to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with European Union law and its general principles (see, to this effect, Case C‑263/11 Rēdlihs  [2012] ECR I‑0000, paragraph 44 and the case-law cited).
32. Thus, the penalties which the Member States may adopt in order to ensure the correct collection of VAT and to prevent evasion, and in particular in order to ensure that taxable persons comply with their obligations regarding rectification of their accounts following cancellation of an invoice on the basis of which they have made a deduction, cannot, in the first place, undermine the neutrality of VAT, which is a fundamental principle of the common system of VAT and prevents economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT (see, to this effect, Case C-188/09 Profaktor Kulesza, Frankowski, Jóźwiak, Orłowski  [2010] ECR I-7639, paragraph 26 and the case-law cited, and Case C-500/10 Belvedere Costruzioni [2012] ECR I-0000, paragraph 22).
33. The system of adjustment of deductions is an essential element of the system established by the VAT Directive in that its purpose is to ensure the accuracy of deductions and hence the neutrality of the tax burden (Case C-184/04 Uudenkaupungin kaupunki  [2006] ECR I‑3039, paragraph 26).
36. Second, the fine at issue in the main proceedings is not imposed on account of any transaction, but as a result of belated rectification by the taxable person of a deduction which he has made and which has ceased to have a basis. A charge resulting in double taxation contrary to the principle of fiscal neutrality cannot therefore be considered to be involved (see, to this effect and by analogy, Case C‑155/01 Cookies World  [2003] ECR I‑8785, paragraph 60, and Case C-502/07 K-1  [2009] ECR I‑161, paragraphs 17 to 19).
38. In the second place, the penalties referred to in paragraph 32 of the present judgment must not go beyond what is necessary to attain the objectives of ensuring the correct collection of tax and preventing evasion. In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken inter alia of the nature and the degree of seriousness of the infringement which the penalty seeks to sanction and of the means of establishing the amount of the penalty (see Rēdlihs , paragraphs 46 and 47 and the case-law cited).
39. It is, however, for the national court to determine whether the amount of the penalty goes beyond what is necessary to attain the objectives stated in the previous paragraph.
40. As regards the means of establishing the penalty at issue, it is to be noted that the penalty as prescribed in Article 182(1) and (2) of the ZDDS is graduated in amount. If the rectification occurs with just one month’s delay, the fine is only 25% of the amount of VAT payable. It is only if the delay exceeds the period of one month that the fine is increased to 100% of the amount of VAT payable. Such a penalty is therefore liable to encourage taxable persons to adjust as rapidly as possible deductions which have been made but no longer have a basis and thus to achieve the objective of ensuring the correct collection of tax.
41. Furthermore, it is for the national court to verify whether the belated declaration of the cancellation of the invoice at issue is tainted by the evasion of VAT. It is settled case-law that European Union law cannot be relied on for abusive or fraudulent ends. Similarly, the application of European Union legislation cannot be extended to cover transactions carried out for the purpose of wrongfully obtaining advantages provided for by European Union law (see Case C-146/05 Collée  [2007] ECR I‑7861, paragraph 38 and the case-law cited).
42. However, late payment of VAT cannot, per se, be equated with evasion (see Case C-284/11 EMS-Bulgaria Transport [2012] ECR I-0000, paragraph 74 and the case-law cited.