Dyrektor Izby Administracji Skarbowej w Bydgoszczy v B. sp. z o.o., anciennement B. sp.j.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 21 March 2024

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

21 March 2024 (*)

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Provision of recreational services and services to improve physical fitness – Sale of passes giving access to services whose existence is evidenced by a cash register and by cash register receipts – Taxable amount – Error in the tax rate – Principle of fiscal neutrality – Adjustment of the tax debt as a result of a change in the taxable amount – National practice that does not permit, in the absence of an invoice, a correction of the VAT and a refund of the overpaid VAT – No risk of loss of tax revenue – Plea of unjust enrichment)

In Case C‑606/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 23 June 2022, received at the Court on 20 September 2022, in the proceedings

Dyrektor Izby Administracji Skarbowej w Bydgoszczy

v

B. sp. z o.o., formerly B. sp.j.,

interested party:

Rzecznik Małych i Średnich Przedsiębiorców,

THE COURT (Seventh Chamber),

composed of N. Wahl (Rapporteur), acting as President of the Seventh Chamber, J. Passer and M.L. Arastey Sahún, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Dyrektor Izby Administracji Skarbowej w Bydgoszczy, by B. Kołodziej and T. Wojciechowski,

– B. sp. z o.o., by R. Baraniewicz, T. Pabiański and J. Tokarski, doradcy podatkowi, and by A. Zubik, radca prawny,

– the Rzecznik Małych i Średnich Przedsiębiorców, by P. Chrupek, radca prawny,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by J. Jokubauskaitė and M. Owsiany-Hornung, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 November 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(2) and Article 73 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2010/45/EU of 13 July 2010 (OJ 2010 L 189, p. 1) (‘Directive 2006/112’), in the light of the principles of fiscal neutrality, proportionality and equal treatment.

2 The request has been made in proceedings between the Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Director of the Tax Administration Chamber, Bydgoszcz, Poland) and B. sp.j., which became, after that request was made, B. sp. z o.o., concerning the refusal of the tax authorities to find, after B. filed amended VAT returns, that B. overpaid value added tax (VAT), given that no invoices had been issued.

Legal context

European Union law

3 Article 1(2) of Directive 2006/112 provides:

‘The principle of the common system of VAT entails the application to goods and services of a general tax on consumption exactly proportional to the price of the goods and services, however many transactions take place in the production and distribution process before the stage at which the tax is charged.

On each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components.

The common system of VAT shall be applied up to and including the retail trade stage.’

4 Under Article 73 of that directive:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

5 Article 78 of that directive provides:

‘The taxable amount shall include the following factors:

(a) taxes, duties, levies and charges, excluding the VAT itself;

…’

6 Article 220(1) of that directive provides:

‘Every taxable person shall ensure that, in respect of the following, an invoice is issued, either by himself or by his customer or, in his name and on his behalf, by a third party:

(1) supplies of goods or services which he has made to another taxable person or to a non-taxable legal person;

…’

7 Article 226 of Directive 2006/112 is worded as follows:

‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles 220 and 221:

…

(6) the quantity and nature of the goods supplied or the extent and nature of the services rendered;

(7) the date on which the supply of goods or services was made or completed …, in so far as that date can be determined and differs from the date of issue of the invoice;

…

(8) the taxable amount per rate or exemption, the unit price exclusive of VAT and any discounts or rebates if they are not included in the unit price;

(9) the VAT rate applied;

(10) the VAT amount payable, except where a special arrangement is applied under which, in accordance with this Directive, such a detail is excluded;

…’

8 Article 226b of that directive, introduced by Directive 2010/45 and applicable on 1 January 2013, provides:

‘As regards simplified invoices issued pursuant to Article 220a and Article 221(1) and (2), Member States shall require at least the following details:

(a) the date of issue;

(b) identification of the taxable person supplying the goods or services;

(c) identification of the type of goods or services supplied;

(d) the VAT amount payable or the information needed to calculate it;

(e) where the invoice issued is a document or message treated as an invoice pursuant to Article 219, specific and unambiguous reference to that initial invoice and the specific details which are being amended.

They may not require details on invoices other than those referred to in Articles 226, 227 and 230.’

Polish law

9 Article 29 of the ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. No 54, item 535), in the version in force until 31 December 2013 (Dz. U. No 177, item 1054), provided:

‘(4a) If the taxable amount is reduced in relation to that set out in the invoice issued, the taxable person may reduce the taxable amount as set out in the invoice on condition that, before the expiry of the time limit for submitting the tax return for the tax period during which the purchaser of the goods or services received the correcting invoice, that taxable person is in possession of an acknowledgement of receipt of that invoice from the purchaser. Obtaining an acknowledgement of receipt of the correcting invoice from the purchaser of the product or service after the time limit for submitting a tax return for the tax period concerned has expired entitles that taxable person to take account of the correcting invoice in respect of the tax period during which he or she obtained that acknowledgement.

…

(4c) Paragraph 4a shall apply mutatis mutandis in the...