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ECJ C-323/12 (E. ON Global Commodities SE) – Judgment: A tax representative did not constitute a Fixed Establishment

On February 6, 2014, the ECJ issued his decision in the case C-323/12 (E. ON Global Commodities SE). This case dealt with the right to deduct VAT if a company has designated a tax representative.


Article in the EU VAT Directive

Article 1, 3, 4 and 6 of Eighth Council Directive 79/1072/EEC

Articles 38, 171 and 195 of Council Directive 2006/112/EC


Facts


Questions

May a taxable person having its principal place of business in a Member State of the European Union other than Romania, and that has identified for VAT purposes a tax representative in Romania, on the basis of the provisions of domestic law in force before Romania acceded to the European Union, be regarded as a ‘taxable person not established in the territory of the country’, within the meaning of Article 1 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country?
Does the requirement, laid down in Article 1472(1)(a) of Law No 571/2003 on the Tax Code and transposing the provisions of the Directive, that the legal person should not be identified for VAT purposes, represent a further condition in addition to those expressly provided for in Articles 3 and 4 [of the Eighth Directive] and, if so, is a further condition of this kind permitted, having regard to Article 6 of the Directive?
Can Articles 3 and 4 [of the Eighth Directive] have direct effect, or does satisfaction of the conditions explicitly regulated by those provisions rather confer on the legal person not established in the territory of Romania, in accordance with Article 1, the right to refund of VAT, regardless of the form they are given in the national legislation?

AG Opinion

None


Decision

The provisions of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonization of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, read together with Articles 38, 171 and 195 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2007/75/EC of 20 December 2007, must be interpreted as meaning that a taxable person established in one Member State and who has made supplies of electricity to taxable dealers established in another Member State has the right to rely on the Eighth Directive 79/1072 in the latter State in order to obtain a refund of input value added tax. That right is not precluded merely by the designation of a tax representative who is identified for value added tax purposes in the latter State.


Personal comments/VATupdate 

This was another case concerning the right to VAT refund. The CJEU ruled that a tax representative did not constitute an FE for the purposes of Eighth Council Directive (79/1072/EEC). Therefore, E.ON’s right to VAT refund could not be excluded based on the fact that it designated a tax representative in Romania.

Source


Similar ECJ cases

Roadtrip through ECJ Cases – Focus on ”Fixed Establishments”


How did countries implement the case?  Your feedback appreciated!  Let us know


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