Date of the lodging of the application initiating proceedings: 08/05/2025
Name of the parties: Rapera
Source of the question referred for a preliminary ruling: Dioikitiko Protodikeio Thessalonikis – Greece
Summary
- Facts of the Case: The applicant, AY, is a tax representative for a company (O.) established in Italy, which has been audited by the Greek tax authority for VAT compliance. The audit revealed unpaid VAT amounting to €3,344,061.47, leading to protective measures imposed on both the company and AY.
- Legal Questions: The referring court seeks clarification on the interpretation of Articles 204 and 205 of Directive 2006/112/EC regarding joint and several liability of tax representatives, particularly whether national laws can impose such liability without assessing the representative’s involvement in the taxable activities.
- Key Legal Provisions: The case hinges on national provisions from Law 2859/2000, which stipulate that a tax representative can be held jointly liable for VAT obligations without requiring evidence of their involvement in the taxable person’s economic activities.
- Court’s Considerations: The court questions whether the principle of proportionality and the requirement for legal certainty are met under national law, especially if a representative who merely submits VAT returns can be held liable for unpaid taxes without any involvement in the transactions.
Articles in the EU VAT Directive
Articles 204 and 205 of Directive 2006/112/EC
Article 204
1. Where, pursuant to Articles 193 to 197 and Articles 199 and 200, the person liable for payment of VAT is a taxable person who is not established in the Member State in which the VAT is due, Member States may allow that person to appoint a tax representative as the person liable for payment of the VAT.
Furthermore, where the taxable transaction is carried out by a taxable person who is not established in the Member State in which the VAT is due and no legal instrument exists, with the country in which that taxable person is established or has his seat, relating to mutual assistance similar in scope to that provided for in Directive 76/308/EEC ( 1 ) and Regulation (EC) No 1798/2003 ( 2 ), Member States may take measures to provide that the person liable for payment of VAT is to be a tax representative appointed by the non-established taxable person.
However, Member States may not apply the option referred to in the second subparagraph to a taxable person within the meaning of point (1) of Article 358a who has opted for the special scheme for services supplied by taxable persons not established within the Community.
2. The option under the first subparagraph of paragraph 1 shall be subject to the conditions and procedures laid down by each Member State.
Article 205
In the situations referred to in Articles 193 to 200 and Articles 202, 203 and 204, Member States may provide that a person other than the person liable for payment of VAT is to be held jointly and severally liable for payment of VAT.
Facts and background
- Parties Involved:
- Applicant: AY, acting as the tax representative.
- Defendant: Anexartiti Archi Dimosion Esodon (Greek tax authority).
- Company in Question: O., a company established in Milan, Italy.
- Nature of the Case:
- AY is contesting an action for annulment of a decision made by the Greek tax authority, which imposed protective measures due to alleged VAT infringements by O., the company AY represents.
- Company Activities:
- O. is involved in the supply of cellulose, primarily for toilet paper manufacturing. It has an establishment in Thessaloniki, Greece, and holds both an Italian and a Greek tax identification number.
- Audit Findings:
- An audit conducted by the Greek tax authority for the tax years 2020 to 2022 identified that O. failed to comply with VAT legislation, resulting in a total unpaid VAT amount of €3,344,061.47. The audit revealed that O. had stored goods in Greece and conducted intra-Community supplies of goods without adhering to VAT regulations.
- Legal Actions and Arguments:
- Following the audit, the Greek tax authority imposed precautionary measures against both O. and AY. AY argues that it acted merely as a tax agent, responsible only for submitting VAT returns based on information from O., and did not maintain records or engage in the company’s economic activities. AY contends that it should not be held jointly and severally liable for O.’s VAT obligations under the national law, which it claims lacks clarity and fails to consider the representative’s actual involvement in the taxable activities.
- Legal Framework:
- The case hinges on the interpretation of Articles 204 and 205 of Directive 2006/112/EC, which govern VAT liability and the conditions under which a tax representative may be held liable for the payment of VAT. There are specific provisions in Greek law (Law 2859/2000) that outline the responsibilities and liabilities of tax representatives, which AY challenges as being inconsistent with EU law principles, particularly regarding proportionality and legal certainty.
Questions
- (1) Must Article 205 of Directive 2006/112 and the principle of proportionality be interpreted as precluding a provision of national law, such as Article 55(d) of Nomos 2859/2000 (Law 2859/2000), under which a person who (irrespective of the term used to describe that person under national law, namely a tax
‘representative’ [antiprosopos in Greek] or ‘agent’ [ekprosopos in Greek]) (is not required to or) does not keep records or compile information on transactions
carried out by its principal, a taxable person established in another Member State, is jointly and severally liable for payment of VAT, but merely submits the
corresponding VAT returns, where that national provision does not allow the tax authority or, by extension, the competent court to examine: (i) whether that person is involved in the economic activity of the taxable person, (ii) whether that person knew or should have known that the tax corresponding to that transaction or to a previous or subsequent transaction would go unpaid, and (iii) whether that person acted in good faith and did everything reasonably within its power? - (2) Under Article 204 of Directive 2006/112, can the tax representative of a taxable person subject to VAT established in another Member State be held liable
as a debtor if the tax representative is not involved in the taxable person’s activity? Is that provision contrary to a national provision such as Article 35(1)(c)
of Law 2859/2000, under which a tax representative is automatically considered to be liable, without the tax authority or, by extension, the competent court being empowered to examine whether that person is involved in the economic activity of the taxable person? - (3) Does the answer to the preceding questions differ depending on whether the transaction for which VAT is due is carried out under the tax identification
number (tax number) of the Member State in which the taxable person is established or whether it is carried out under the tax number of the Member State
in which the tax is due? - (4) Are Articles 204(1) and 205 of Directive 2006/112 to be interpreted as meaning that a person may be held liable under both provisions simultaneously,
that is to say, as a debtor under Article 204(1) and as jointly and severally liable under Article 205?
Source
Reference to other ECJ Cases
- Athesia Druck (C-1/08): This case discusses the role of a tax representative and clarifies the obligations and liabilities that can arise in VAT matters, particularly regarding the representative’s involvement in taxable transactions.
- ALTI (C-4/20): This case examines the conditions under which a tax representative can be held liable for VAT obligations and emphasizes the need for a factual and legal relationship to justify such liability.
- U.I. (Indirect customs representative) (C-714/20): This case further elaborates on the responsibilities and potential liabilities of representatives in tax matters, focusing on the requirement of involvement in economic activities to determine liability.
- Macikowski (C-499/13)
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