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Document 62009CJ0385

Summary of the Judgment

Judgment of the Court (Third Chamber) of 21 October 2010.
Nidera Handelscompagnie BV v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos.
Reference for a preliminary ruling: Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės - Lithuania.
Directive 2006/112/EC - Right of deduction of input VAT - National legislation excluding the right of deduction in respect of goods sold on before identification of the taxable person for VAT purposes.
Case C-385/09.



1. Preliminary rulings – Reference to the Court – Court or tribunal of a Member State within the meaning of Article 234 EC – Definition

(Art. 234 EC)

2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Obligations of the taxable person

(Council Directive 2006/112)


1. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent.

The Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuanian Tax Disputes Commission), which has the task of carrying out an objective examination of a complaint filed by a taxpayer and making a lawful and substantiated decision, meets those criteria.

(see paras 35-36, 40)

2. Council Directive 2006/112 on the common system of value added tax must be interpreted as precluding a taxable person for VAT purposes who meets the substantive conditions for the right of deduction, in accordance with the provisions of that directive, and who identifies himself as a taxable person for VAT purposes within a reasonable period following the completion of transactions giving rise to that right of deduction, from being denied the opportunity of exercising that right by national legislation which prohibits the deduction of VAT paid on the purchase of goods if the taxpayer was not identified as a taxable person for VAT purposes before using those goods in his taxable activity.

By virtue of Article 178(a) of Directive 2006/112, exercise of the right of deduction pursuant to Article 168(a) thereof is subject to the single formal requirement that, in respect of the supply of goods or services, the taxable person must hold an invoice drawn up in accordance with Articles 220 to 236 and Articles 238 to 240 of the Directive. Indeed, there is also an obligation for taxable persons to state when their activity commences, changes or ceases, in accordance with the measures adopted to that end by the Member States, pursuant to Article 213 of Directive 2006/112. However, that provision in no way authorises Member States, in the event of such a declaration’s not being submitted, to defer the exercise of the right to deduct until the time at which taxable transactions actually begin to be carried out on a regular basis, or to deprive the taxable person of that right. In addition, the measures which the Member States may adopt under Article 273 of Directive 2006/112 in order to ensure the correct levying and collection of the tax and for the prevention of fraud must not go further than is necessary to attain such objectives and must not undermine the neutrality of VAT. In consequence, the identification provided for in Article 214 of Directive 2006/112, in the same way as the obligations laid down in Article 213 of that directive, is not a measure giving rise to the right of deduction – a right which arises at the time when the deductible tax becomes payable – but constitutes a formal requirement for the purposes of verification. It follows from the foregoing that a taxable person for VAT purposes cannot be prevented from exercising his right of deduction on the ground that he had not been identified as a taxable person for those purposes before using the goods purchased in the context of his taxed activity.

(see paras 47-51, 54, operative part)