As a result of the so-called Reemtsma case law, a service recipient can, under certain conditions, request reimbursement of VAT paid to the service provider directly from the tax authorities (instead of from the service provider).
1) The legal instrument of the direct claim in value added tax (also “Reemtsma jurisprudence”) resulting from Union law has been developed in case law. According to this case law, under certain conditions, a recipient of a service can demand the refund of turnover tax paid to the supplier without legal grounds directly from the
tax authorities (instead of the service provider).
2. in its judgment of March 15, 2007, C-35/05, Reemtsma Cigarettenfabriken, the ECJ ruled that, in principle it is for the Member States to determine the conditions under which repayment is conditions under which the unduly paid tax can be refunded. However, these conditions would have to comply with the principles of equivalence and the principle of the principle of equal treatment and effectiveness. On this basis, the ECJ held that a procedure according to which (similar to Germany) first the service provider has a claim against the tax authorities and the service recipient has a corresponding civil law claim against the service provider is compatible with EU law. However, the principle of neutrality and effectiveness require that in cases where the refund of VAT from the supplier to the recipient of the service is impossible or excessively difficult, in particular in the case of insolvency of the service provider, the service insolvency of the service provider, the recipient of the service may submit his application for refund directly to the tax authorities. The Member States must therefore provide for the necessary means and procedural arrangements. In the case at issue, the service provider had erroneously invoiced VAT for a service that was not taxable in Germany, received this VAT from the service recipient and paid it to the tax authorities. The ECJ applied the above principles applied the above principles to refunds in connection with the supply of goods (cf. ECJ judgment of 31 May 2018, C-660/16 and C-661/16, Kollroß and Wirtl).
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