Société générale des grandes sources d'eaux minérales françaises contra Bundesamt für Finanzen.

• Jurisdiction: European Union
• Celex Number: 61996CJ0361
• ECLI: ECLI:EU:C:1998:282
• Docket Number: C-361/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 11 June 1998

Avis juridique important

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61996J0361

Judgment of the Court (Fifth Chamber) of 11 June 1998. - Société générale des grandes sources d'eaux minérales françaises v Bundesamt für Finanzen. - Reference for a preliminary ruling: Finanzgericht Köln - Germany. - Value added tax - Interpretation of Article 3(a) of the Eighth Council Directive 79/1072/EEC - Obligation of taxpayers not established in the country concerned to annex the original invoices or import documents to applications for a refund of the tax - Possibility of annexing a duplicate where the original has been lost for reasons beyond the control of the taxpayer. - Case C-361/96.

European Court reports 1998 Page I-03495

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Tax refunds for taxpayers not established in the country concerned - Obligations of the taxpayer - Submission of original invoices or import documents - Possibility for Member States to allow submission of duplicate invoices or import documents where original lost for reasons beyond the control of the taxpayer - Whether permissible - Conditions

(Council Directive 79/1072, Art. 3(a))

2 Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Tax refunds for taxpayers not established in the country concerned - Documents to be produced in order to obtain a refund - Principle of non-discrimination - Obligation of Member States to allow taxpayers, regardless of the place where they are established, to use means of proof which only taxpayers established in the country concerned are permitted to rely on

(EC Treaty, Art. 6; Council Directive 79/1072)

Summary

3 Article 3(a) of the Eighth Directive 79/1072 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 - is to be interpreted as not precluding Member States from providing in their national law that a taxable person who is not established in that Member State may prove his entitlement to a refund by submitting a duplicate invoice or import document where the original has been lost for reasons beyond his control, provided that the transaction which led to the application for a refund occurred and there is no risk of further applications for a refund.

Secondary law must comply with the general principles of law, and in particular the principle of proportionality. Exclusion of the possibility for a Member State to allow an application for a refund in such exceptional circumstances is not necessary to achieve the general aim of the Eighth Directive, which is to prevent fraud or tax evasion.

4 Where a taxable person established in a Member State may prove his entitlement to a refund of value added tax by submitting a duplicate or photocopy of the invoice if the original which he received has been lost for reasons beyond his control, the principle of non-discrimination set out in Article 6 of the Treaty and referred to in the fifth recital in the preamble to the Eighth Directive 79/1072 requires that the same possibility be extended to taxable persons not established in that Member State if the transaction which led to the application for a refund occurred and there is no risk of further applications for a refund.

Parties

In Case C-361/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Finanzgericht Köln (Germany) for a preliminary ruling in the proceedings pending before that court between

Société Générale des Grandes Sources d'Eaux Minérales Françaises

and

Bundesamt für Finanzen,

"on the interpretation of Article 3(a) of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover tax - Arrangements for the refund of value added tax to persons not established in the territory of the country (OJ 1979 L 331, p. 11),$

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward and J.-P. Puissochet, Judges,

Advocate General: G. Cosmas,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Société Générale des Grandes Sources d'Eaux Minérales Françaises, by B. Hense, Manager, C&L Treuhand-Vereinigung Deutsche Revision AG, and K.P. Karig, Manager of the Tax Division, C&L Treuhand-Vereinigung Deutsche Revision AG, Frankfurt am Main,

- the German Government, by E. Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent,

- the Commission of the European Communities, by J. Grunwald, Legal Adviser, acting as Agent,$

having regard to the Report for the Hearing,

after hearing the oral observations of Société Générale des Grandes Sources d'Eaux Minérales Françaises, represented by H. Morin-Hauser, tax adviser of C&L Treuhand-Vereinigung Deutsche Revision AG, the German Government, represented by E. Röder, and the Commission, represented by J. Grunwald, at the hearing on 15 January 1998,

after hearing the Opinion of the Advocate General at the sitting on 12 February 1998,

gives the following

Judgment

Grounds

1 By order of 29 August 1996, received at the Court on 12 November 1996, the Finanzgericht Köln (Finance Court, Cologne) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 3(a) of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover tax - Arrangements for the refund of value added tax to persons not established in the territory of the country (OJ 1979 L 331, p. 11, hereinafter `the Eighth Directive').

2 The questions arose in proceedings between the Société Générale des Grandes Sources d'Eaux Minérales Françaises and the Bundesamt für Finanzen (the Federal Tax Office, hereinafter `the Bundesamt') on the issue of whether the plaintiff in those proceedings could produce as evidence of its entitlement to a refund of input VAT a duplicate invoice, the...