Order of the Court (Seventh Chamber) of 5 February 2024 (request for a preliminary ruling from the Supremo Tribunal Administrativo – Portugal) – DC v Autoridade Tributária e Aduaneira

(Case C-377/23, ¹ Sancra) ²

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Questions the answer to which may be clearly deduced from the Court’s existing case-law – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Tax inspection procedure – Sale of second-hand vehicles to final consumers – Transactions subject to VAT– Articles 73 and 78 – Taxable base –Principle of fiscal neutrality – Incorrect charging of zero-rate VAT – Application of the standard rate of VAT by the tax authority – Inclusion of the VAT due in the sale price)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: DC

Defendant: Autoridade Tributária e Aduaneira

Operative part of the order

Article 73 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 78(a) and Article 2(2)( b) of that directive,

must be interpreted as meaning that where a taxable person for value added tax (VAT) purposes has incorrectly included a zero rate of VAT on the invoices issued to final consumers, whereas a higher rate was applicable, the price or the amount stated on those invoices must nevertheless be considered to be a price that already includes VAT, unless, under national law, the taxable person is able to pass on the VAT corresponding to application of the corrected rate to the final consumers and recover that VAT from them.

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¹ Date lodged: 14.6.2023.

¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.