Case C‑441/16
SMS group GmbH
v
Direcţia Generală Regională a Finanţelor Publice Bucureşti
(Request for a preliminary rulingfrom the Înalta Curte de Casaţie şi Justiţie)
(Reference for a preliminary ruling — Value added tax (VAT) — Eighth Directive 79/1072/EEC — Directive 2006/112/EC — Taxable person residing in another Member State — Refund of VAT charged on imported goods — Conditions — Objective elements confirming the intention of the taxable person to use the imported goods in the course of his economic activities — Serious risk of non-completion of the transaction that justified the importation)
Summary — Judgment of the Court (Tenth Chamber), 21 September 2017
Harmonisation of fiscal legislation — Common system of value added tax — Refund of the tax to taxable persons not established in the territory of the country — Suspension of the performance of a contract for the importation of goods — Transaction for which those goods were intended not taking place — No proof of the subsequent movements of those goods — Refusal to refund — Not permissible
(Council Directives 79/1072 and 2006/112, Art 170)
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, read in conjunction with Article 170 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as precluding a refusal by a Member State to refund the value added tax paid on the importation of goods to a taxable person who is not established on its territory in circumstances such as those in the main proceedings where, at the time of importation, the performance of the contract in connection with which the taxable person purchased and imported those goods was suspended, the transaction for which they were intended to be used was in the end not carried out, and the taxable person did not provide proof of their subsequent movements.
It is settled case-law of the Court that, in the absence of fraud or abuse, and subject to any adjustments which may be made in accordance with the conditions laid down by the VAT Directive, the right of refund, once it has arisen, is retained (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 46 and the case-law cited).
More specifically, where the taxable person has been unable to use the goods or services which gave rise to a refund in the context of the planned transaction by reason of circumstances beyond his control, the right of refund is retained since, in such a case, there is no risk of fraud or abuse capable of justifying a refusal to refund (see, by analogy, judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 47 and the case-law cited).
(see paras 55, 56, 58, operative part)