Gemeente Dinkelland v Ontvanger van de Belastingdienst/Grote ondernemingen, kantoor Zwolle.

• Jurisdiction: European Union
• Celex Number: 62022CJ0674
• ECLI: ECLI:EU:C:2024:147
• Docket Number: C-674/22
• Date: 22 February 2024
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

22 February 2024 (*)

(Reference for a preliminary ruling – Taxes levied in breach of EU law – Obligation to refund value added tax (VAT) and to pay interest on that amount – Refund resulting from errors made in the taxable person’s accounts – Refund resulting from the retroactive amendment of the detailed rules for calculating the deductible VAT relating to the taxable person’s general costs)

In Case C‑674/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Gelderland (District Court, Gelderland, Netherlands), made by decision of 26 October 2022, received at the Court on 31 October 2022, in the proceedings

Gemeente Dinkelland

v

Ontvanger van de Belastingdienst/Grote ondernemingen, kantoor Zwolle,

THE COURT (Fourth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu-Matei, J.-C. Bonichot, S. Rodin and L.S. Rossi, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Gemeente Dinkelland, by D. van der Zijden, tax advisor,

– the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,

– the European Commission, by J. Jokubauskaitė and W. Roels, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of EU law on the obligation of Member States to pay interest on the refunded value added tax (VAT) amount levied in breach of EU law.

2 The request has been made in proceedings between the Gemeente Dinkelland (Dinkelland municipality, Netherlands) and the Ontvanger van de Belastingdienst/Grote ondernemingen, kantoor Zwolle (Collector of the Tax Authority for Large Businesses, Zwolle office, Netherlands) (‘the tax authority’), concerning the latter’s refusal to pay recovery interest to the Dinkelland municipality on an amount of VAT refunded to that municipality.

Legal context

European Union law

3 Article 9 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’) states:

‘1. “Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.

2. In addition to the persons referred to in paragraph 1, any person who, on an occasional basis, supplies a new means of transport, which is dispatched or transported to the customer by the vendor or the customer, or on behalf of the vendor or the customer, to a destination outside the territory of a Member State but within the territory of the Community, shall be regarded as a taxable person.’

4 Article 168 of the directive reads as follows:

‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:

(a) the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person;

(b) the VAT due in respect of transactions treated as supplies of goods or services pursuant to Article 18(a) and Article 27;

(c) the VAT due in respect of intra-Community acquisitions of goods pursuant to Article 2(1)(b)(i);

(d) the VAT due on transactions treated as intra-Community acquisitions in accordance with Articles 21 and 22;

(e) the VAT due or paid in respect of the importation of goods into that Member State.’

5 Article 173 of that directive provides:

‘1. In the case of goods or services used by a taxable person both for transactions in respect of which VAT is deductible pursuant to Articles 168, 169 and 170, and for transactions in respect of which VAT is not deductible, only such proportion of the VAT as is attributable to the former transactions shall be deductible.

The deductible proportion shall be determined … for all the transactions carried out by the taxable person.

2. Member States may take the following measures:

…

(c) authorise or require the taxable person to make the deduction on the basis of the use made of all or part of the goods and services;

…’

6 As provided in Article 183 of the VAT Directive:

‘Where, for a given tax period, the amount of deductions exceeds the amount of VAT due, the Member States may, in accordance with conditions which they shall determine, either make a refund or carry the excess forward to the following period.

However, Member States may refuse to refund or carry forward if the amount of the excess is insignificant.’

7 Article 203 of the VAT Directive reads as follows:

‘VAT shall be payable by any person who enters the VAT on an invoice.’

8 Article 250(1) of that directive states:

‘Every taxable person shall submit a VAT return setting out all the information needed to calculate the tax that has become chargeable and the deductions to be made including, in so far as is necessary for the establishment of the basis of assessment, the total value of the transactions relating to such tax and deductions and the value of any exempt transactions.’

Netherlands law

9 Article 28c of the Invorderingswet 1990 (Law on Tax Collection of 1990) (‘the Collection Law’) provides:

‘1. If the collector is required, pursuant to a decision of the inspector, to refund an amount of tax because the amount in question has been levied in breach of EU law, recovery interest shall be paid to the taxpayer at his or her request.

2. The recovery interest referred to in paragraph 1 shall be calculated as simple interest for the period starting on the day following that on which the charge or tax was paid, settled or remitted and ending on the day preceding that of the refund and shall be based on the amount which will be refunded or which has been refunded to the taxpayer. By way of derogation from the first sentence, the recovery interest referred to in paragraph 1 shall not be calculated with respect to the days for which tax interest is paid under Chapter VA of [the Algemene wet inzake rijksbelastingen (General Law on State Taxes)] or for which recovery interest is paid pursuant to Article 28b.

…’

10 According to Article 30ha of the Algemene wet inzake rijksbelastingen (General Law on State Taxes), if a decision to refund is not adopted within eight weeks of receipt of the refund application, interest is to be granted for the period starting eight weeks after the receipt of the refund application and ending 14 days after the date of the decision to refund. Where the refund relates to a position adopted by the tax authority concerning the payment of the tax paid by way of a tax return, interest shall also be paid for the period starting on the day following the date of payment and ending 14 days after the date of the decision to refund. In other cases, there is no need to pay interest.

11 The Wet op het BTW-compensatiefonds (Law on the VAT compensation fund) is applicable only to municipalities, to provinces and to regional public bodies authorised to grant public transport concessions. Under that law, those public entities are entitled to a contribution from the VAT compensation fund (‘the BCF’) in order to offset the VAT relating to the goods and...