Nestrade SA v Agencia Estatal de la Administración Tributaria (AEAT) and Tribunal Económico-Administrativo Central (TEAC).
Date: 2019-02-14
28


However, the fact that a national court has, formally speaking, worded its request for a preliminary ruling by referring to certain provisions of EU law does not preclude the Court from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited).
29


As the Spanish government and the European Commission have observed, the case in the main proceedings concerns a claim for the refund of amounts of VAT paid by a company established in a third country, namely Switzerland. The arrangements for the refund of VAT to taxable persons not established on the territory of the European Union are governed by the Thirteenth Directive, as is clear from Article 2(1) thereof. The Court has clarified, in that regard, that the provisions of the Thirteenth Directive and, in particular, Article 2(1), must be considered as a lex specialis as compared with Articles 170 and 171 of Directive 2006/112 (judgment of 15 July 2010, Commission v UK, C‑582/08, EU:C:2010:429, paragraph 35).
33


The Court has held that the provisions of the Sixth Directive 77/388 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the right to deduct VAT may be refused to taxable persons who are recipients of services and are in possession of invoices which are incomplete, even if those invoices are supplemented by the provision of information seeking to prove the occurrence, nature and amount of the transactions invoiced after such a refusal decision was adopted (see, to that effect, judgment of 8 May 2013, Petroma Transports and Others, C‑271/12, EU:C:2013:297, paragraph 36). However, it should be noted that the Sixth Directive 77/388 also does not prohibit Member States from accepting the rectification of an incomplete invoice after the tax authority has adopted a decision refusing the right to a deduction or the right to a refund of VAT.
35


Since it is not governed by the Thirteenth Directive, the enactment of measures laying down a limitation period the expiry of which has the effect of penalising a taxable person who has not been sufficiently diligent and has failed to rectify incorrect or incomplete invoices for the purposes of exercising the right to a refund of VAT must be governed by national law, provided that, first, that procedure applies in the same way to analogous rights in tax matters founded on domestic law and to those founded on EU law (principle of equivalence) and, second, that it does not in practice render impossible or excessively difficult the exercise of that right (principle of effectiveness) (see, by analogy, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraph 46, and 26 April 2018, Zabrus Siret, C‑81/17, C‑284/17, EU:C:2018:283, paragraph 38 and the case-law cited).
36


In that regard, it should be recalled that while it is for the national court to determine whether national measures are compatible with EU law, the Court may, however, provide it with any helpful guidance to resolve the dispute before it (judgment of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 36).
37


As regards, in the first place, the principle of equivalence, it should be recalled that it follows from this principle that persons asserting rights conferred by EU law must not be treated less favourably than those asserting rights of a purely domestic nature (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 39).
40


As regards, in the second place, the principle of effectiveness, it is clear from the case-law of the Court that the question as to whether a national procedural provision makes the exercise of rights conferred on individuals by EU law practically impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, viewed as a whole, and to the conduct and special features of that procedure before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 7 March 2018, Santoro, C‑494/16, EU:C:2018:166, paragraph 43 and the case-law cited).
41


The Court has already held that the possibility of exercising the right to a refund of excess VAT without any temporal limit would be contrary to the principle of legal certainty, which requires the tax position of the taxable person, having regard to his rights and obligations vis-à-vis the tax authorities, not to be open to challenge indefinitely (judgment of 21 June 2012, Elsacom, C‑294/11, EU:C:2012:382, paragraph 29). The Court has also stated that it is compatible with EU law to lay down reasonable time limits for bringing proceedings, in the interests of legal certainty, which protects both the taxpayer and the authorities concerned. Such periods are not by their nature liable to make it virtually impossible or excessively difficult to exercise the rights conferred by EU law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (judgment of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraph 42 and the case-law cited).
42


In the present case, on 23 November 2010 the AEAT asked Nestrade to provide it with the correct invoices within 10 working days of notification of the demand, which was given on 13 December 2010.
45


In that regard, it should be recalled that where the tax authority has the information necessary to establish that the taxable person is liable for VAT, it cannot impose additional conditions which may have the effect of rendering the right to deduct VAT ineffective (see, to that effect, judgment of 30 September 2010, Uszodaépítő, C‑392/09, EU:C:2010:569, paragraph 40).
46


The same reasoning necessarily applies with regard to the right to a refund of VAT. However, as regards the case in the main proceedings, it appears, as the Commission has submitted, that the AEAT did not have all the information necessary in order to determine the right to the VAT refund in issue in the main proceedings on the basis of the information that had been provided to it by Nestrade in the context of other refunds concerning the same supplier, which it is for the referring court to verify.