Case C-191/12

Alakor Gabonatermelő és Forgalmazó Kft.

v

Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

(Request for a preliminary ruling from the Kúria)

‛Non-repayment of the entirety of value added tax unduly paid — National legislation precluding repayment of VAT because it has been passed on to a third party — Compensation in the form of aid covering a fraction of the non-deductible VAT — Unjust enrichment’

Summary — Judgment of the Court (Seventh Chamber), 16 May 2013

1. European Union law — Direct effect — National taxes incompatible with EU law — Repayment — Refusal — Condition — Undue enrichment — Concept — Direct passing on to other persons of amounts unduly paid by the taxable person

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — National legislation which allows the deduction of tax relating to the acquisition of goods subsidised by EU funds only up to the limit of the non-subsidised part of the costs of that acquisition — Lawfulness — Condition — Neutralisation of the economic burden relating to the prohibition on deducting value added tax

   (Commission Regulation No 448/2004, Annex, Rule No 7; Council Directive 77/388, Art. 17(2))

1.  See the text of the decision.

   (see para. 25)

2.  The principle of repayment of taxes levied in a Member State in infringement of the rules of EU law must be interpreted as meaning that it does not preclude that State from refusing to repay part of the value added tax, the deduction of which had been precluded by a national measure contrary to European Union law, on the ground that that part of the tax had been subsided by aid granted to the taxable person and financed by the European Union and by that State, provided that the economic burden relating to the refusal to deduct value added tax has been completely neutralised, which is for the national court to determine.

   In that regard, the national court must examine, in particular, the question whether the amount of the aid granted to the taxable person would have been less if the latter had not been prevented from exercising its right to deduct. Accordingly, in order to neutralise the economic burden relating to the prohibition on deducting VAT, the amount of the repayment which the taxable person may claim must correspond to the difference between, first, the amount of VAT which it was unable to deduct due to the national legislation at issue, and, second, the amount of the aid granted to the taxable person which exceeds that which would have been granted had it not been prevented from exercising its right to deduct.

   (see paras 32, 33, 35, operative part)

Case C-191/12

Alakor Gabonatermelő és Forgalmazó Kft.

v

Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

(Request for a preliminary ruling from the Kúria)

‛Non-repayment of the entirety of value added tax unduly paid — National legislation precluding repayment of VAT because it has been passed on to a third party — Compensation in the form of aid covering a fraction of the non-deductible VAT — Unjust enrichment’

Summary — Judgment of the Court (Seventh Chamber), 16 May 2013

1. European Union law — Direct effect — National taxes incompatible with EU law — Repayment — Refusal — Condition — Undue enrichment — Concept — Direct passing on to other persons of amounts unduly paid by the taxable person

2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Deduction of input tax — National legislation which allows the deduction of tax relating to the acquisition of goods subsidised by EU funds only up to the limit of the non-subsidised part of the costs of that acquisition — Lawfulness — Condition — Neutralisation of the economic burden relating to the prohibition on deducting value added tax

   (Commission Regulation No 448/2004, Annex, Rule No 7; Council Directive 77/388, Art. 17(2))

1.  See the text of the decision.

   (see para. 25)

2.  The principle of repayment of taxes levied in a Member State in infringement of the rules of EU law must be interpreted as meaning that it does not preclude that State from refusing to repay part of the value added tax, the deduction of which had been precluded by a national measure contrary to European Union law, on the ground that that part of the tax had been subsided by aid granted to the taxable person and financed by the European Union and by that State, provided that the economic burden relating to the refusal to deduct value added tax has been completely neutralised, which is for the national court to determine.

   In that regard, the national court must examine, in particular, the question whether the amount of the aid granted to the taxable person would have been less if the latter had not been prevented from exercising its right to deduct. Accordingly, in order to neutralise the economic burden relating to the prohibition on deducting VAT, the amount of the repayment which the taxable person may claim must correspond to the difference between, first, the amount of VAT which it was unable to deduct due to the national legislation at issue, and, second, the amount of the aid granted to the taxable person which exceeds that which would have been granted had it not been prevented from exercising its right to deduct.

   (see paras 32, 33, 35, operative part)