Case C‑404/16

Lombard Ingatlan Lízing Zrt.

v

Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

(Request for a preliminary ruling
from the Szegedi Közigazgatási és Munkaügyi Bíróság)

(Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Article 90(1) — Direct effect — Taxable amount — Reduction in the case of cancellation or refusal — Reduction in the case of total or partial non-payment — Distinction — Financial leasing agreement terminated for non-payment of public charges)

Summary — Judgment of the Court (Sixth Chamber), 12 October 2017

1. Harmonisation of fiscal legislation—Common system of value added tax—Taxable amount—Reduction in the case of cancellation, refusal or where the price is reduced—Concepts—Financial leasing agreement with definite transfer of ownership terminated for non-payment of public charges—Included

   (Council Directive 2006/112, Art. 90(1))

2. Harmonisation of fiscal legislation—Common system of value added tax—Taxable amount—Article 90(1) of Directive 2006/112—Reduction in the case of cancellation, refusal or where the price is reduced—Direct effect—Financial leasing agreement definitively terminated because of non-payment of the lease instalments payable by the lessee—National legislation considering such termination to be a case of non-payment, and not an act for the purposes of Article 90(2) of Directive 2006/112, thus precluding the reduction of the taxable amount in the case of such non-payment—Irrelevant

   (Council Directive 2006/112, Art. 90(1) and (2))

1.  The concepts of ‘cancellation’ and ‘refusal’ in Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as including a situation in which, under a financial leasing agreement with definite transfer of ownership, the lessor may no longer claim payment of the leasing instalment from the lessee because the lessor has terminated the agreement owing to breach of contract by the lessee.

   (see para. 34, operative part 1)

2.  Where a financial leasing agreement has been definitively terminated because of non-payment of the lease instalments payable by the lessee, the lessor may rely on Article 90(1) of Directive 2006/112 against a Member State with a view to obtaining a reduction of the taxable amount for value added tax, even if the applicable national law considers that situation to be a case of ‘non-payment’ within the meaning of Article 90(2) of the directive and does not allow the taxable amount to be reduced in the case of non-payment.

   (see para. 45, operative part 2)