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Flashback on ECJ/CJEU cases: Volkswagen C-533/16 – VAT may be deducted after expiry of the statute of limitation period

Source Curia


EU law must be interpreted as meaning that it precludes legislation of a Member State under which, in circumstances such as those at issue in the main proceedings in which the value added tax (VAT) was charged to the taxable person and paid by it several years after delivery of the goods in question, the benefit of the right to claim a refund of VAT is denied on the grounds that the limitation period provided for by that legislation for the exercise of that right began to run from the date of supply and expired before the application for a refund was submitted.

Unofficial translation from

Factual and legal circumstances

The Slovak company supplied the German company Volkswagen AG with molds for the production of headlights. She issued invoices without VAT on this account. After 6 years of such practice, the company concluded that the practice was incorrect. For this reason, after 6 years, she issued invoices with the VAT indicated (she corrected the declarations, paid the outstanding tax).

The recipient of the invoice – the German company Volkswagen AG – applied to the Slovak tax authority for a refund of the input tax charged pursuant to Directive 2008/9.

The authority partially refused the refund because it considered that 3 out of 6 years had already been time-barred according to Slovak law. The right to VAT refund arose at the original moment when VAT was due on delivery, and therefore the 5-year period for applying for a refund has already expired.

The essence of the problem

Is it lawful to refuse to refund input tax on the grounds that the limitation period for returning this tax has expired in a situation where the taxpayer could not apply for a refund in due time because he did not have an invoice?

Adjudication of the CJEU

If the taxpayer has received invoices showing the tax due after the deadline for the return of input tax, then the refusal of the right to deduct due to the expiry of this deadline is unacceptable.

The content of the justification

  • It should be noted that Directive 2008/9 aims to lay down detailed rules for the VAT refund provided for in the VAT Directive. However, the aim of this Directive 2008/9 is not to define the conditions for the right to deduct (refund) tax. The right to deduct input tax is defined in the VAT Directive (34-36).
  • [the theses on the right to deduct and the neutrality of VAT regularly cited by the Court – 37-39]
  • The right to deduct is subject to substantive and formal conditions (40).
  • As for formal reasons, the taxpayer should have an invoice (42).
  • Although the right to deduct arises when the tax becomes chargeable, the exercise of this right is only possible when the taxpayer obtains the invoice (43).
  • The right to deduct is exercised immediately – however, the taxpayer may be entitled by the Member State to make the deduction at a later date if the conditions laid down by national law are met (45).
  • At the same time, the possibility of exercising the right to deduct ‘indefinitely’ would run counter to the principle of legal certainty.
  • A deadline may result in the loss of the right to deduct if two conditions are met. First, the deadline is the same for national taxes and EU law taxes (principle of equivalence). Second, it does not make it practically impossible or excessively difficult to exercise the right to deduct VAT (47).
  • In addition, the measures adopted by the Member States to prevent abuses must not go beyond what is necessary to achieve such objectives (48).
  • As presented in the facts, Volkswagen AG was not in a position to exercise its right of reimbursement prior to the supplier’s correction as it did not have any invoices beforehand and it did not know that the tax was due (49).
  • Only as a result of the correction were the material and formal conditions fulfilled. The company has not shown any lack of diligence and is not fraudulent (50).


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