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ECJ C-643/20 Energott vs HU (Questions): Limitation period for VAT on bad debts

Date lodged: 30 November 2020

Subject matter and legal basis of the request for a preliminary ruling

First, the interpretation of Article 90(1) and (2) of [Council] Directive
2006/112/EC [of 28 November 2006 on the common system of value added tax
(‘VAT’ or ‘the tax’)], in the light of the relevant case-law of the Court of Justice
and of the principles of effectiveness and equivalence, in order to determine, in
particular, the moment which may be stipulated by Member States as the starting
point of the limitation period for the refund of VAT applicable to debts which are
definitively irrecoverable.

Second, the interpretation of Articles 90(1) and (2) and 273 of Directive 2006/112,
in the light of the same case-law and of the principles of effectiveness,
equivalence and neutrality of VAT, in order to determine, in particular, whether
that case-law and those principles preclude practices of a Member State whereby:
i) taxable persons are expected to carry out recovery operations laid down as
conditions for the refund of VAT in respect of debts which are definitively
irrecoverable; and ii) in the event of non-payment by the recipient of a service, the
company providing that service must immediately suspend the service, failing
which it will be unable to recover the VAT applicable to debts which are
definitively irrecoverable.

Third, the interpretation of Articles 90(1) and (2) and 273 of Directive 2006/112,
and of Articles 15 to 17 of the Charter of Fundamental Rights of the European
Union, in the light of the abovementioned case-law and principles in order to
determine specifically whether that case-law and those principles preclude the
above set of conditions which was laid down, in respect of the refund of VAT, as
a result of the order of the Court of Justice in Porr Építési Kft. (C-292/19, not
published, EU:C:2019:901), without any legal basis and without taxable persons
being aware of it.

Legal basis: Article 267 TFEU

Questions referred for a preliminary ruling

1) Must Article 90(1) and (2) of Council Directive 2006/112/EC of
28 November 2006 on the common system of value added tax (‘the VAT
Directive)’ (taking particular account of the judgment in Enzo Di Maura
(C-246/16) and the order in Porr Építési Kft. (C-292/19)), and the
fundamental EU law principles of effectiveness and equivalence be
interpreted as meaning that Member States may not stipulate that the
limitation period for the refund of VAT applicable to debts which are
definitively irrecoverable starts to run at a time prior to the moment when
the debt on which the VAT to be refunded is based becomes irrecoverable?

2) Must Articles 90(1) and (2) and 273 of the VAT Directive (taking particular
account of the judgment in Enzo Di Maura (C-246/16) and the order in Porr
Építési Kft. (C-292/19)), and the fundamental EU law principles of
effectiveness and equivalence, [in addition to] the principle of neutrality of
the tax, be interpreted as precluding the practice of a Member State whereby,
in connection with the refund of VAT applicable to a debt which is
definitively irrecoverable, taxable persons are, in addition to claiming that
debt in liquidation proceedings, expected to take other steps to recover the
debt, as a condition for eligibility for a refund of VAT?

3) Must Articles 90(1) and (2) and 273 of the VAT Directive (taking particular
account of the judgment in Enzo Di Maura (C-246/16) and the order in Porr
Építési Kft. (C-292/19)), and the fundamental EU law principles of
effectiveness and equivalence, [in addition to] the principle of neutrality of
the tax, be interpreted as [precluding] the practice of a Member State
whereby, in the event of non-payment, the undertaking which provides the
service must immediately suspend that service, since, if it fails to do so and
continues to provide the service, it will be not be able to claim a refund of
the VAT applicable to debts which are definitively irrecoverable either, even
though those debts acquired that status at a later time?

4) Must Articles 90(1) and (2) and 273 of the VAT Directive and Articles 15 to
17 of the Charter of Fundamental Rights of the European Union (taking
particular account of the judgment in Enzo Di Maura (C-246/16) and the
order in Porr Építési Kft. (C-292/19)), and the fundamental EU law
principles of effectiveness and equivalence, [in addition to] the principle of
neutrality of the tax, be interpreted as meaning that, following the order in
Porr Építési Kft, [those provisions and principles preclude] the authorities of
a Member State responsible for ensuring enforcement of the law from
having laid down, without any legal basis, the conditions referred to in
questions 2 to 4, given that that set of conditions was not clear to the taxable
person before the debts became definitively irrecoverable?

Source: Curia

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