Nidera Handelscompagnie BV v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos.
Date: 2010-10-21
32. Since the national court asks the Court to rule on the compatibility with the legal rules of the European Union of legislation such as that at issue in the main proceedings, it must be borne in mind that, although it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with the legal rules of the European Union, it has repeatedly held that it has jurisdiction to give the national court full guidance on the interpretation of European Union law in order to enable it to determine the issue of compatibility for the purposes of the case before it (Case C‑118/08 Transportes Urbanos y Servicios Generales  [2010] ECR I‑0000, paragraph 23 and the case-law cited).
35. In that regard, it is appropriate to recall that, in accordance with settled case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (Case C‑54/96 Dorsch Consult  [1997] ECR I‑4961, paragraph 23 and the case-law cited).
41. It must be noted that the Member States may limit the right of deduction of VAT only in the cases expressly provided for in Directive 2006/112 (see, by analogy, Case 50/87 Commission  v France  [1988] ECR 4797, paragraphs 16 and 17; Case C‑97/90 Lennartz  [1991] ECR I‑3795, paragraph 27; and Case C-37/95 Ghent Coal Terminal  [1998] ECR I-1, paragraph 16).
42. In addition, the Court has held, in the context of the reverse charge procedure, that the principle of VAT neutrality requires deduction of input tax to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (Joined Cases C-95/07 and C-96/07 Ecotrade  [2008] ECR I-3457, paragraph 63, and Case C-392/09 Uszodaépítö  [2010] ECR I‑0000, paragraph 39). Where the tax authority has the information necessary to establish that the taxable person is, as the recipient of the supplies in question, liable to VAT, it cannot impose, in relation to the right of that taxable person to deduct that tax, additional conditions which may have the effect of rendering that right ineffective ( Ecotrade , paragraph 64, and Uszodaépítö , paragraph 40).
43. The questions referred by the national court must be examined in the light of those principles.
48. Indeed, there is also an obligation on taxable persons to state when their activity commences, changes or ceases, in accordance with the measures adopted to that end by the Member States, pursuant to Article 213 of Directive 2006/112. However, the Court has already held that that in no way authorises Member States, in the event of such a declaration not being submitted, to defer the exercise of the right to deduct until the time at which taxable transactions actually begin to be carried out on a regular basis, or to deprive the taxable person of that right (see, by analogy, Joined Cases C‑110/98 to C‑147/98 Gabalfrisa and Others  [2000] ECR I-1577, paragraph 51).
49. In addition, the Court has previously held that the measures which the Member States may adopt under Article 273 of Directive 2006/112 in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT (see, by analogy, Case C‑146/05 Collée  [2007] ECR I-7861, paragraph 26 and case-law cited).
50. In consequence, the identification provided for in Article 214 of Directive 2006/112, in the same way as the obligations laid down in Article 213 of that directive, cited in paragraph 48 of the present judgment, is not a measure giving rise to the right of deduction – a right which arises at the time when the deductible tax becomes payable – but constitutes a formal requirement for the purposes of verification.
51. It follows from the foregoing that a taxable person for VAT purposes cannot be prevented from exercising his right of deduction on the ground that he had not been identified as a taxable person for those purposes before using the goods purchased in the context of his taxed activity.