Opinion of Advocate General Saugmandsgaard Øe delivered on 18 March 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:222
• Date: 18 March 2021
• Celex Number: 62019CC0855
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 18 March 2021 (1)

Case C‑855/19

G. sp. z o.o.

v

Dyrektor Izby Administracji Skarbowej w Bydgoszczy

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland))

(Reference for a preliminary ruling – Common system of value added tax – Intra-Community acquisition of motor fuels – Obligation to pay VAT early – Five-day period from the entry of the motor fuels into the national territory – Article 110 TFEU – Prohibition from collecting higher internal taxation on goods from other Member States – Directive 2006/112/EC – Article 273 – Measures intended to prevent evasion – Articles 62 and 69 – Chargeability of VAT – Non-chargeability – Article 206 – Concept of ‘interim payments’ – Interim payment relating to non-chargeable VAT – Basis of calculation – Gross amount calculated on a taxable transaction – Net amount of the VAT calculated over the tax period as a whole)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 110 TFEU and of Articles 69, 206 and 273 of Directive 2006/112/EC. (2)

2. The request has been made in proceedings between the company G. sp. z o.o. (‘the applicant in the main proceedings’) and the Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Director of the Tax Administration Chamber, Bydgoszcz, Poland) (‘the tax authorities’) concerning an obligation to make early payment of the value added tax (VAT) on intra-Community acquisitions of motor fuels, which was introduced with a view to combatting fraud.

3. The applicant in the main proceedings contested the validity, in the light of EU law, of that obligation to make early payment, in accordance with which it was required to pay the gross amount of VAT, calculated without account being taken of its right of deduction, on each intra-Community acquisition of motor fuels, within five days from their entry into the national territory.

4. For the reasons set out below, I am of the view that Articles 62 and 69 of the VAT Directive preclude such an obligation to make early payment in so far as it allows the tax authorities to demand a payment from the taxable person before the VAT becomes chargeable.

5. Furthermore, such an early payment cannot be regarded as an interim payment within the meaning of Article 206 of that directive. First, such payments can relate only to VAT that has become chargeable pursuant to the provisions cited above. Second, such payments must relate to the net amount of the tax, calculated over the tax period as a whole, and not to the gross amount of VAT payable on a taxable transaction considered in isolation.

II. Legal context

A. EU law

6. Article 62 of the VAT Directive provides:

‘For the purposes of this Directive:

(1) “chargeable event” shall mean the occurrence by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled;

(2) VAT shall become “chargeable” when the tax authority becomes entitled under the law, at a given moment, to claim the tax from the person liable to pay, even though the time of payment may be deferred.’

7. Article 68 of that directive reads as follows:

‘The chargeable event shall occur when the intra-Community acquisition of goods is made.

The intra-Community acquisition of goods shall be regarded as being made when the supply of similar goods is regarded as being effected within the territory of the relevant Member State.’

8. Under Article 69 of that directive:

‘In the case of the intra-Community acquisition of goods, VAT shall become chargeable on issue of the invoice, or on expiry of the time limit referred to in the first paragraph of Article 222 if no invoice has been issued by that time.’

9. Article 206 of the VAT Directive states:

‘Any taxable person liable for payment of VAT must pay the net amount of the VAT when submitting the VAT return provided for in Article 250. Member States may, however, set a different date for payment of that amount or may require interim payments to be made.’

10. Article 222 of that directive provides:

‘For supplies of goods carried out in accordance with the conditions specified in Article 138 or for supplies of services for which VAT is payable by the customer pursuant to Article 196, an invoice shall be issued no later than on the fifteenth day of the month following that in which the chargeable event occurs.

For other supplies of goods or services Member States may impose time limits on taxable persons for the issue of invoices.’

11. Under the first paragraph of Article 273 of the VAT Directive:

‘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.’

B. Polish law

12. Article 20(5) of the ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług (Law on VAT of 11 March 2004) (Dz. U. of 2016, item 710), as applicable at the time of the facts (‘the VAT Law’), provides:

‘In the case of the intra-Community acquisition of goods, VAT shall become chargeable on the day of issue of the invoice by the taxpayer, but no later than on the fifteenth day of the month following the month in which the acquisition of the goods was made …’

13. Pursuant to Article 99(11a) of the VAT Law, in cases of intra-Community acquisitions of goods referred to in Article 103(5a) of that law, the taxable person is required to submit to the head of the customs office competent in matters relating to the payment of excise duty a monthly statement of the amounts of VAT payable no later than on the fifth day of the month following that in which the payment obligation arose.

14. Under Article 103(5a) of the Law:

‘In the case of the intra-Community acquisition of the motor fuels referred to in Annex 2 to the ustawa z dnia 6 grudnia 2008 r. o podatku akcyzowym (Law of 6 December on excise duty, ‘the Excise Duty Law’), the production or marketing of which requires a licence pursuant to the provisions of the ustawa z dnia 10 kwietnia 1997 r. –Prawo energetyczne (Law of 10 April 1997 on energy), the taxable person shall be obliged, without being called upon to do so by the head of the customs office, to calculate and pay the tax to the customs authorities competent for the payment of excise duty:

(1) within five days of the date on which the goods were presented at the place of receipt of the goods subject to excise duties specified in the relevant permit – if the goods are the subject of intra-Community acquisition within the meaning of the [Excise Duty Law] by a registered consignee under the excise duty suspension procedure pursuant to the applicable provisions on excise duty;

(2) within five days of the date on which the goods were imported into a tax warehouse from the territory of another Member State;

(3) upon the movement of such goods within the national territory – if the goods are moved outside an excise duty suspension procedure pursuant to the applicable provisions on excise duty.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

15. In December 2016, the applicant in the main proceedings made 20 intra-Community acquisitions of diesel fuel of a total quantity of 3 190 874 m³.

16. The tax authorities stated that the intra-Community acquisitions made by the applicant in the main proceedings came under the second situation envisaged in Article 103(5a) of the VAT Law, namely the placement of the goods in a tax warehouse from the territory of another Member State.

17. The applicant in the main proceedings did not pay the VAT on those acquisitions, which came to a total of 1 530 766 Polish zloty (PLN) (approximately EUR 337 319.59), within five days from the entry of the diesel fuel into the national territory, as required by Article 103(5a) of the VAT Law. Furthermore, nor did it submit a monthly statement no later than on the fifth day of the month following that in which the payment obligation arose, as required by Article 99(11a) of that law.

18. By decision of 6 April 2018, the tax authorities required the applicant in the main proceedings, by means of a tax adjustment for December 2016, to make immediate payment of the VAT payable on the intra-Community acquisitions at issue, plus interest for late payment calculated from the day following the due date for payment.

19. The applicant in the main proceedings filed an appeal before the Wojewódzki Sąd Administracyjny w Bydgoszczy (Regional Administrative Court, Bydgoszcz, Poland), which dismissed that appeal by judgment of 10 July 2018.

20. The applicant in the main proceedings brought an appeal on a point of law against that judgment before the referring court, calling into question the legality of Article 103(5a) of the VAT Law in the light of Article 110 TFEU and of Articles 69 and 206 of the VAT Directive.

21. That court explained that Article 103(5a) of the VAT Law is part of a ‘fuel package’ which was adopted nationally and came into force on 1 August 2016, that is to say a set of amendments intended to make the collection of VAT on intra-Community acquisitions of motor fuels more effective and to prevent VAT fraud on the cross-border market in motor fuels.

22. The referring court described as follows the practical consequences of that new scheme for taxable persons making intra-Community acquisitions of motor fuels, such as the applicant in the main proceedings.

23. Under the ordinary scheme applicable to intra-Community acquisitions, the acquirer is, in principle, to declare the VAT payable and claim his right of deduction in the same return, it being understood that that...