Flashback on ECJ Cases – C-79/12 (Mora IPR) – Deferment of payment of VAT on importation on the condition that a certificate must be obtained

On February 21, 2013, the ECJ issued its decision in the case C-79/12 (Mora IPR).

Context: Taxation – VAT – Directive 2006/112/EC – Article 211 – Deferred payment of import VAT

Article in the EU VAT Directive

Article 211 of the EU VAT Directive 2006/112/EC.

Article 211 (Liability to pay VAT – Payment arrangements)
Member States shall lay down the detailed rules for payment in respect of the importation of goods.
In particular, Member States may provide that, in the case of the importation of goods by taxable persons or certain categories thereof, or by persons liable for payment of VAT or certain categories thereof, the VAT due by reason of the importation need not be paid at the time of importation, on condition that it is entered as such in the VAT return to be submitted in accordance with Article 250.

Facts

Mora IPR is a limited liability company established in Romania whose object is the manufacture of plastic products. It has been identified with VAT since January 1 ^, 2007.
It is apparent from the order for reference that, between 7 August and 12 December 2006, Mora IPR imported from France to Romania, for the performance of convenience and rental contracts concluded with the French company Mora International, its majority shareholder, industrial equipment.
That import was carried out under the temporary admission regime, with exemption from guarantee for import duties and for VAT, pursuant to an authorization from the vice-president of the Agenţia Naţională de Administrare Fiscală ( national tax administration agency).
The duration of the temporary admission was limited to 24 months, so that between August 7 and December 12, 2008, Mora IPR should have terminated this customs procedure by re-exporting or putting the goods into free circulation. main cause. As the said company did not put an end to this regime, the customs authority proceeded ex officio to clear it by releasing the goods for free circulation on 6 September 2010 and imposed on Mora IPR the payment of the VAT relating to the importation of these.
Mora IPR brought an action before the referring court, claiming that the successive legislative amendments made to Article 157 of the Tax Code between April 2007 and December 2008 constitute a restriction on the free movement of goods, are discriminatory “in a competitive context” and caused him material damage in excess of 300,000 euros.
Before that court, Mora IPR maintained that the contested legislative provisions are contrary to Article 211 of the VAT Directive, since the changes which occurred in the wording of Article 157 of the Tax Code between 1 ^August 2006 and on 18 October 2007 had resulted in the application, to situations which would, according to Mora IPR, be identical, of three different legal regimes, namely, respectively, the non-payment of import VAT, the actual payment of the Customs VAT at the time of the import declaration and deferred payment of import VAT on the basis of a certificate issued under conditions subsequently set by order of the Minister of the Economy and Finance.
Thus, according to Mora IPR, between August and December 2006, the actual payment of customs VAT was not due. The discharge of the temporary admission regime by the definitive importation into Romania of the industrial equipment at issue in the main proceedings before 15 April 2007 would not have given rise to the payment of customs VAT for any equipment originating in the European Union subject to temporary importation before 31 December 2006. On the other hand, the same operation, cleared by definitive importation between August and December 2008, would have given rise to the actual payment of VAT, except for economic agents who had been able to obtain a deferred payment certificate. The legal regime concerning the actual payment of VAT would have been thus modified whereas, according to Mora IPR,
According to Mora IPR, the three different legal regimes applicable to de facto situations arising simultaneously are such as to create discrimination between economic agents finding themselves in identical situations, by imposing on only some of them the actual payment of import VAT and by deferring, for others, the payment of VAT on the basis of certificates issued according to subjective criteria. This would amount to direct State aid, incompatible with Article 107 TFEU, and would constitute a violation of Article 26(2) TFEU.
In addition, Mora IPR argued that the Romanian tax authorities’ refusal to refund import VAT must be regarded as taxation on the import of goods from another Member State, which is contrary to Articles 28 TFEU and 30 TFEU.

Questions

(1) Should Article 211 of the [VAT] Directive be interpreted as precluding an additional condition (such as obtaining, during a specified period, a deferred payment certificate, under conditions set by order of the Minister for the Economy and Finance) be imposed, in addition to the condition concerning the insertion of particulars in the VAT statement, at the expense of taxable persons who are not not liable for the VAT due on importation to the customs authorities?

2) Should Articles 26(2) [TFEU], 28 [TFEU], 30 [TFEU] and 107(1) [TFEU] be interpreted as precluding repeated legislative intervention , such as those provided for in points 1 and 2 of emergency ordinance no. 22 of 28 March 2007, as well as in point 69 of emergency ordinance no. 106 of 4 October 2007, which modify article 157, paragraph 4, of the Romanian tax code in the sense that only a part of the VAT taxable persons (those who have carried out or are considered to have carried out the import after April 15, 2007 and who have obtained deferred payment certificates), among those who are in identical situations (holding goods which were temporarily imported during the pre-accession period),not to pay customs VAT?

AG Opinion

None

Decision

Article 211 of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it does not preclude the application of ” regulations of a Member State, such as that at issue in the main proceedings, making deferred payment of the value added tax due for imported goods subject to obtaining a certificate which is not required by the terms of that directive, provided that the conditions for obtaining such a certificate comply with the principle of fiscal neutrality, which is for the referring court to verify.

Summary

Article 211 of the VAT Directive must be interpreted as not precluding the application of legislation of a Member State, such as that at issue in the main proceedings, which defers payment of the tax due on imported goods on the makes added value conditional on obtaining a certificate which is not required under the terms of this directive, in so far as the conditions for obtaining such a certificate comply with the principle of fiscal neutrality. It is for the referring court to verify this.

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