Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 25 September 2017 — Nestrade, S.A. v Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)

(Case C-562/17)

Language of the case: Spanish

Referring court

Audiencia Nacional

Parties to the main proceedings

Applicant: Nestrade, S.A.

Defendant: Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)

Questions referred

Can the rule in Petroma (Case C-271/12) ¹ be qualified so as to allow a VAT refund sought by an undertaking not established in the EU, even though the national tax authority has already issued a decision refusing the refund on the grounds that the undertaking had failed to respond to a request for information concerning its tax reference number, in view of the fact that the authority was in possession of that information at the relevant time since it had been provided by the undertaking in response to other requests?

2.    If that question is answered in the affirmative:

Does a retroactive application of the rule in Senatex (Case C-518/14) ² mean that an administrative act refusing the refund of the VAT in question must be revoked, in view of the fact that the act merely upheld a previous final administrative decision refusing the VAT refund, which was adopted by the AEAT using a procedure which was not the procedure laid down by law for that situation and which, furthermore, curtailed the rights of the applicant, depriving it of a legal remedy?

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¹ Judgment of 8 May 2013, Petroma Transports and Others C-271/12, EU:C:2013:297.

² Judgment of 15 September 2016, Senatex, C-518/14, EU:C:2016:691.