Barlis 06 – Investimentos Imobiliários e Turísticos SA v Autoridade Tributária e Aduaneira.

• Jurisdiction: European Union
• Date: 15 September 2016
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Fourth Chamber)

15 September 2016 ( *1 )

‛Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 178(a) — Right of deduction — Conditions of exercise — Article 226(6) and (7) — Details required in invoices — Extent and nature of the services rendered — Date on which the supply of services is made’

In Case C‑516/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal), made by decision of 3 November 2014, received at the Court on 17 November 2014, in the proceedings

Barlis 06 — Investimentos Imobiliários e Turísticos SA

v

Autoridade Tributária e Aduaneira,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Lycourgos, E. Juhász, C. Vajda (Rapporteur) and K. Jürimäe, Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 14 January 2016,

after considering the observations submitted on behalf of:

— Barlis 06 — Investimentos Imobiliários e Turísticos SA, by P. Braz, advogado,

— the Portuguese Government, by L. Inez Fernandes, R. Campos Laires and A. Cunha, acting as Agents,

— the German Government, by T. Henze, acting as Agent,

— the European Commission, by L. Lozano Palacios and P. Guerra e Andrade, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 February 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 178(a) and Article 226(6) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request has been made in proceedings between Barlis 06 — Investimentos Imobiliários e Turísticos SA (‘Barlis’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) concerning the authority’s refusal to allow the deduction of input value added tax (VAT) paid by Barlis as the recipient of legal services rendered by a firm of lawyers, on the ground that the invoices issued by them did not satisfy the formal requirements laid down by national legislation.

Legal context

EU law

3 Article 64(1) of Directive 2006/112 provides: ‘Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.’

4 Under Article 168 of Directive 2006/112: ‘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; …’

5 Article 178 of Directive 2006/112 reads as follows: ‘In order to exercise the right of deduction, a taxable person must meet the following conditions: (a) for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Articles 220 to 236 and Articles 238, 239 and 240; …’

6 Article 219 of Directive 2006/112 provides that any document or message that amends and refers specifically and unambiguously to the initial invoice shall be treated as an invoice.

7 In accordance with Article 220 of Directive 2006/112: ‘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; …’

8 Article 226 of Directive 2006/112 provides: ‘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 or the date on which the payment on account referred to in points (4) and (5) of Article 220 was made, in so far as that date can be determined and differs from the date of issue of the invoice; …’

9 Article 273 of Directive 2006/112 provides: ‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. The option under the first paragraph may not be relied upon in order to impose additional invoicing obligations over and above those laid down in Chapter 3.’

Portuguese law

10 According to the order for reference, Article 36(5)(b) of the Código do IVA (VAT Code) provides that invoices must contain ‘the common name of the goods or services supplied, together with specification of the information necessary to determine the applicable tax rate’.

11 Only if an invoice satisfies in particular the conditions laid down in that provision of the VAT Code is there a right, pursuant to Article 19(2)(a) and (6) of that code, to deduct the VAT shown in the invoice.

The dispute in the main proceedings and the question referred for a preliminary ruling

12 Barlis, which is established in Lisbon (Portugal), operates hotels with restaurants.

13 From 2008 to 2010 Barlis made use of the legal services of a firm of lawyers (‘the legal services in question’), which were the subject of four invoices (‘the invoices at issue’) containing the following descriptions: — invoice No 02170/2008 of 26 August 2008: ‘Legal services rendered from 1 December 2007 until the present date’; — invoice No 32100478 of 17 December 2008: ‘Fees for legal services rendered from June until the present date’; — invoice No 32101181 of 29 April 2009: ‘Fees for legal services rendered until the present date’; — invoice No 32104126 of 2 June 2010: ‘Fees for legal services rendered from 1 November 2009 until the present date’.

14 Barlis exercised its right to deduct the VAT shown in those invoices.

15 Following a request by Barlis for reimbursement of VAT, the competent authorities opened review procedures for the years 2008 to 2011. After those checks, the authorities took the view that Barlis was not entitled to deduct the VAT relating to the legal services in question, on the ground that the descriptions in the invoices at issue, issued by Barlis’s lawyers, were insufficient. The authorities therefore proposed VAT corrections in the amount of EUR 8689.49, representing the sums of VAT deducted in respect of those legal services.

16 Barlis was notified that it could exercise its right to a preliminary hearing, and submitted annexes giving a more detailed description of the legal services in question.

17 However, the competent authorities maintained the proposed corrections, because of the incompleteness of the invoices at issue. In their view, that lack of legal form could not be remedied by adding annexes confirming the missing information, as the annexes were not documents ‘equivalent’ to invoices. Such ‘equivalent documents’ had to satisfy, in themselves, all the requirements of Article 36(5) of the VAT Code, which was not the case with a mere annex.

18 On 31 May 2013 Barlis brought an administrative appeal against that decision, which was dismissed by decision of 25 September 2013 on the ground that the reference to ‘legal services’ in the invoices at issue did not satisfy the requirements of Article 226(6) of Directive 2006/112 or those of the national provisions implementing that directive, in that the reference gave no details of the services that had been supplied or of their individual or total quantities.

19 Following the dismissal of its administrative appeal, Barlis requested on 30 December 2013 the constitution of a single-member arbitration tribunal.

20 The referring tribunal before which the case was brought in those circumstances, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal), observes that it has to determine whether the details given in the invoices at issue satisfy the conditions of Article 36(5)(b) of the VAT Code, under which invoices must contain ‘the common name of the goods or services supplied, together with specification of the information necessary to determine the applicable tax rate’.

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