Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos v Nidera BV.
Date: 2018-02-28
16


According to the referring court, the judgment of 24 October 2013, Rafinăria Steaua Română (C‑431/12, EU:C:2013:686, paragraph 25) may indicate that the amount of interest due cannot be reduced in the light of circumstances unrelated to the actions of the taxable person himself. However, in so far as the purpose of such interest is to compensate the taxable person for the loss that he incurred owing to the unavailability of the corresponding funds, the referring court considers that a long period of unavailability of funds may give rise to a disproportionate amount of interest when compared with the loss actually incurred and that the criteria of reasonableness and fairness, which guide both the tax administration, in accordance with Article 8(3) of the Law on Tax Administration, and the national court, may lead to a reduction in that amount.
21


It should be noted that, although Article 183 of the VAT Directive does not lay down any obligation to pay interest on a refund of overpaid VAT or the date from which such interest is payable, it cannot be concluded from that fact alone that that article must be interpreted as meaning that no control may be exercised under EU law over the procedures established by Member States for the refund of overpaid VAT (judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraphs 27 and 28, and of 6 July 2017, Glencore Agriculture Hungary, C‑254/16, EU:C:2017:522, paragraph 18).
22


First, while the implementation of the right to a refund of overpaid VAT provided for in Article 183 of the VAT Directive falls, as a general rule, under the procedural autonomy of the Member States, the fact remains that that autonomy is circumscribed by the principles of equivalence and effectiveness (see, to that effect, judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraph 29; of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 27; and of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraph 20).
23


Second, it follows from the Court’s case-law that certain specific rules must be complied with by the Member States in implementing the right to a refund of overpaid VAT arising from Article 183 of the VAT Directive, interpreted in the light of the general context and principles governing VAT (judgments of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraph 21, and of 6 July 2017, Glencore Agriculture Hungary, C‑254/16, EU:C:2017:522, paragraph 19).
24


Thus, while the Member States have a certain freedom in determining the conditions for the refund of overpaid VAT, those conditions cannot undermine the principle of fiscal neutrality by making the taxable person bear the burden of the VAT in whole or in part. In particular, such conditions must enable the taxable person, in appropriate circumstances, to recover the entirety of the credit arising from that overpaid VAT. This implies that the refund is made within a reasonable period of time and that, in any event, the method of refund adopted does not entail any financial risk for the taxable person (judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraph 33, and of 6 July 2017, Glencore Agriculture Hungary, C‑254/16, EU:C:2017:522, paragraph 20).
25


In that regard, when the refund to the taxable person of the overpaid VAT is not made within a reasonable period, the principle of fiscal neutrality of the VAT system requires that the financial loss incurred by the taxable person on account of the unavailability of the sums of money at issue be compensated through the payment of default interest. In the absence of EU legislation on VAT, it is for the internal legal order of each Member State to lay down the conditions under which default interest must be paid, particularly the rate of that interest and its method of calculation, whilst nevertheless observing the principle of fiscal neutrality (see, to that effect, judgments of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraphs 33, 53 and 54; of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 27; and of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraphs 22 and 23).
29


In the second place, as regards the duration of the period of non-payment, it follows from the previous paragraph that that duration cannot in itself justify a reduction in the default interest, since the amount of that interest is specifically intended to compensate the financial losses incurred by the taxable person during that period. In addition, the possibility of reducing the amount of the interest due on account of the period of non-payment could mean that the tax authorities would not be encouraged to refund the overpaid VAT as soon as possible, which is also capable of giving rise to a financial risk for the taxable person contrary to the principle of fiscal neutrality.
30


Furthermore, it must be made clear that the refusal of the tax authorities to refund the overpaid VAT claimed by Nidera before delivery of the judgment of 21 October 2010, Nidera Handelscompagnie (C‑385/09, EU:C:2010:627), also cannot justify a reduction in the amount of default interest. It must be borne in mind that the interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, gives to a rule of EU law clarifies and, where necessary, defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time at which it entered into force (judgments of 27 March 1980, Denkavit italiana, 61/79, EU:C:1980:100, paragraph 16, and of 14 April 2015, Manea, C‑76/14, EU:C:2015:216, paragraph 53 and the case-law cited).
31


Moreover, from the perspective of the taxpayer, there is no material difference between a refund delayed because a claim was dealt with administratively after the expiry of the periods and one delayed by administrative measures which unlawfully preclude the refund and are subsequently annulled by a ruling of the Court of Justice (see, by analogy, judgment of 24 October 2013, Rafinăria Steaua Română, C‑431/12, EU:C:2013:686, paragraph 25).
35


In that regard, it should be noted that the Lithuanian Government’s arguments are based on an interpretation of the Lithuanian legislation which differs from that set out by the referring court. The order for reference does not state that the default interest at issue in the main proceedings is punitive in nature. Furthermore, as has been noted in paragraph 19 above, the referring court decided that the date from which interest is payable must be determined in accordance with Article 87(7)(1) of the Law on Tax Administration, which sets a period of 30 days from the date of receipt of the request for a refund, not from the date of the decision ruling on that request. It is for the referring court alone to interpret national legislation and it is for the Court to answer the question referred on the basis of the referring court’s interpretation of that legislation (see, to that effect, judgment of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraph 38).
37


However, if national legislation, such as that at issue in the main proceedings, provides for the payment of such default interest at a flat rate, it cannot, at the same time, provide for the possibility of excluding the payment of such default interest and merely compensating actual loss on the basis of the criteria of reasonableness and fairness, as the Lithuanian Government maintains. Such national legislation would mean that the taxable person is unable to foresee the circumstances in which it can expect to receive the payment of default interest at a flat rate and thus to adjust its activity accordingly. It is thus apparent that such legislation does not enable the taxable person, in appropriate circumstances, to recover the entirety of the credit arising from the overpaid VAT without being exposed to any financial risk, which is contrary to the principle of fiscal neutrality (see, by analogy, judgment of 12 May 2011, Enel Maritsa Iztok 3, C‑107/10, EU:C:2011:298, paragraphs 57 and 58).