Case C‑298/16

Teodor Ispas and Anduţa Ispas

v

Direcţia Generală a Finanţelor Publice Cluj

(Request for a preliminary ruling from the Curtea de Apel Cluj)

(Reference for a preliminary ruling — General principles of EU law — Right to good administration and rights of the defence — National tax rules providing for the right to be heard and the right to be informed during an administrative tax procedure — Decision to levy value added tax issued by the national tax authorities without giving the taxpayer access to the information and the documents upon which that decision was based)

Summary — Judgment of the Court (Third Chamber), 9 November 2017

1. EU law—Principles—Rights of the defence—Observance thereof in the context of administrative proceedings—Scope—Limits

2. EU law—Principles—Rights of the defence—Observance thereof in the context of administrative proceedings—Value added tax—Decision to levy tax following a tax inspection procedure and establishment of the basis for the assessment—Obligation to give the taxpayer access to the information and the documents upon which the decision was based—Limits

   (Council Directive 2006/112)

1.  See the text of the decision.

   (see paras 26, 27, 35)

2.  The general principle of EU law of respect for the rights of the defence must be interpreted as a requirement that, in national administrative procedures of inspection and establishment of the basis for the assessment of value added tax, an individual is to have the opportunity to have communicated to him, at his request, the information and documents in the administrative file and considered by the public authority when it adopted its decision, unless objectives of public interest warrant restricting access to that information and those documents.

   In a tax inspection procedure, the purpose of which is to verify whether the taxable persons have performed their obligations in that regard, it is indeed legitimate to expect that those persons would request access to those documents and information, with a view to, if need be, providing explanations or supporting their claims against the point of view of the tax authorities. If the rights of the defence are to be genuinely respected, there must nonetheless be a real possibility of access to those documents and that information, unless objectives of public interest warrant restricting that access. In that regard, in a procedure of tax inspection and establishment of the basis for VAT assessment, such restrictions, enshrined in national law, may, in particular, be designed to protect requirements of confidentiality or professional secrecy, which are liable to be infringed by access to certain information and certain documents.

   (see paras 33, 34, 36, 39, operative part)