Provisional text
JUDGMENT OF THE COURT (Second Chamber)
16 May 2024 (*)
(Reference for a preliminary ruling – Common system of value added tax (VAT) – Detailed rules for the refund of VAT to taxable persons not established in the Member State of refund – Directive 2008/9/EC – Article 20 – Request for additional information made by the Member State of refund – Information to be provided within a one-month period – Discontinuation of the procedure on account of failure by the taxable person to provide additional information within that time limit – Article 23 – Refusal to take account of information provided for the first time in the appeal procedure – Principle of effectiveness – Principle of VAT neutrality – Principle of good administration)
In Case C‑746/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Törvényszék (Budapest High Court, Hungary), made by decision of 18 November 2022, received at the Court on 6 December 2022, in the proceedings
Slovenské Energetické Strojárne a.s.
v
Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága,
THE COURT (Second Chamber),
composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl, J. Passer and M.L. Arastey Sahún (Rapporteur), Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Slovenské Energetické Strojárne a.s., by P. Barta, T. Fehér and P. Jalsovszky, ügyvédek,
– the Hungarian Government, by M.Z. Fehér and R. Kissné Berta, acting as Agents,
– the Council of the European Union, by Zs. Bodnár, J. Haunold and E. d’Ursel, acting as Agents,
– the European Commission, by J. Jokubauskaitė and A. Tokár, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 14 December 2023,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 20(2) and Article 23 of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23), Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 167 and 169 to 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11) (‘the VAT Directive’), and the principles of value added tax (VAT) neutrality, effectiveness and proportionality.
2 The request has been made in proceedings between Slovenské Energetické Strojárne a.s. and the Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Appeals Directorate of the National Tax and Customs Administration, Hungary; ‘the second-tier tax authority’) regarding the classification of the VAT refund procedure initiated by that company in respect of the VAT borne by it during the year 2020.
Legal context
European Union law
The VAT Directive
3 Article 167 of the VAT Directive states:
‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’
4 Article 170 of that directive provides:
‘All taxable persons who, within the meaning of … Article 2(1) and Article 3 of Directive 2008/9/EC and Article 171 of this Directive, are not established in the Member State in which they purchase goods and services or import goods subject to VAT shall be entitled to obtain a refund of that VAT in so far as the goods and services are used for the purposes of the following:
…
(b) transactions for which the tax is solely payable by the customer in accordance with Articles 194 to 197 or Article 199.’
5 Article 171(1) of that directive provides:
‘VAT shall be refunded to taxable persons who are not established in the Member State in which they purchase goods and services or import goods subject to VAT but who are established in another Member State, in accordance with the detailed rules laid down in Directive 2008/9/EC.’
Directive 2008/9
6 Recital 3 of Directive 2008/9 provides:
‘The new procedure should enhance the position of businesses since the Member States shall be liable to pay interest if the refund is made late and the right of appeal by businesses will be strengthened.’
7 Article 1 of that directive provides:
‘This Directive lays down the detailed rules for the refund of [VAT], provided for in Article 170 of [the VAT Directive], to taxable persons not established in the Member State of refund, who meet the conditions laid down in Article 3.’
8 Article 19(2) of Directive 2008/9 provides:
‘The Member State of refund shall notify the applicant of its decision to approve or refuse the refund application within four months of its receipt by that Member State.’
9 Article 20 of that directive states:
‘(1) Where the Member State of refund considers that it does not have all the relevant information on which to make a decision in respect of the whole or part of the refund application, it may request, by electronic means, additional information, in particular from the applicant or from the competent authorities of the Member State of establishment, within the four-month period referred to in Article 19(2). …
If necessary, the Member State of refund may request further additional information.
The information requested in accordance with this paragraph may include the submission of the original or a copy of the relevant invoice or import document where the Member State of refund has reasonable doubts regarding the validity or accuracy of a particular claim. …
(2) The Member State of refund shall be provided with the information requested under paragraph 1 within one month of the date on which the request reaches the person to whom it is addressed.’
10 The first paragraph of Article 21 of that directive provides:
‘Where the Member State of refund requests additional information, it shall notify the applicant of its decision to approve or refuse the refund application within two months of receiving the requested information or, if it has not received a reply to its request, within two months of expiry of the time limit laid down in Article 20(2). However, the period available for the decision in respect of the whole or part of the refund application shall always be at least six months from the date of receipt of the application by the Member State of refund.’
11 Article 23 of the same directive provides:
‘(1) Where the refund application is refused in whole or in part, the grounds for refusal shall be notified by the Member State of refund to the applicant together with the decision.
(2) Appeals against decisions to refuse a refund application may be made by the applicant to the competent authorities of the Member State of refund in the forms and within the time limits laid down for appeals in the case of refund applications from persons who are established in that Member State.
If, under the law of the Member State of refund, failure to take a decision on a refund application within the time limits specified in this Directive is not regarded either as approval or as refusal, any administrative or judicial procedures which are available in that situation to taxable persons established in that Member State shall be equally available to the applicant. If no such procedures are available, failure to take a decision on a refund application within these time limits shall mean that the application is deemed to be rejected.’
12 Article 26 of Directive 2008/9 provides:
‘Interest shall be due to the applicant by the Member State of refund on the amount of the refund to be paid if the refund is paid after the last date of payment pursuant to Article 22(1).
If the applicant does not submit the additional or further additional information requested to the Member State of refund within the specified time limit, the first paragraph shall not apply. …’
Hungarian law
The Law on VAT
13 Paragraph 251/F of az általános forgalmi adóról szóló 2007. évi CXXVII. törvény (Law No CXXVII of 2007 on value added tax), in the version applicable to the dispute in the main proceedings (‘the Law on VAT’), provides:
‘(1) If the national tax administration considers, on the basis of the data or other information available to it, that a well-founded decision cannot be taken on the application for refund of the tax within the time limit set out in Paragraph 251/E(1), it may, by means of a written request, request additional data and information
(a) from a taxable person not established on the national territory
(b) from the materially and territorially competent authority that registered the taxable person not established in the national territory as being a taxable person established in that State, in accordance with Paragraph 244(2) and (3), or
(c) from a third party, if there are reasonable grounds to believe that he, she or it can make a substantial contribution to the evaluation of the refund application.
…
(3) By means of the written request referred to in subparagraphs 1 and 2, the original or a certified copy of the document referred to in Paragraph 127(1)(a), (c) and (d) in the name of the taxable person who is not established on the national territory, certifying the completion of the transaction, may be requested if there are reasonable doubts as to the legal basis for the refund of the tax or as to the amount of the input tax in respect of which the refund is applied for. …
(4) The time limit for reply is one month from the date of service of the request referred to in subparagraphs 1 and 2.’
14 Paragraph 251/I(4) of the Law on value added tax states:
‘In the event of delay in payment of the tax refund by the national tax administration, interest at the rate of the late payment penalty will be due for each day of delay. The national tax administration is not required to pay that interest if the taxable person who is not established in the national territory has not given, within the time limit for ruling, a complete substantive reply to the request for information referred to in Paragraph 251/F(1) and (2).’
The Law on tax administration
15 Paragraph 49(1)(b) of az adóigazgatási rendtartásról szóló 2017. évi CLI. törvény (Law No CLI of 2017 organising the tax administration; ‘the Law on the organisation of the tax administration’) provides:
‘The tax administration shall discontinue the procedure where
…
(b) the applicant, after having been invited to do so by the tax administration, has not filed a declaration, or has not complied with his or her regularisation obligation and where, in the absence of such a declaration or such regularisation, the application cannot be processed, and the procedure is not automatically followed up on.’
16 Paragraph 124(3) and (4) of that law provides:
‘(3) Unless there are grounds for invalidity, the applicant may not, either in his or her complaint or in the ensuing procedure, allege new facts, or invoke or produce new evidence of which he or she had been aware before the first-tier decision was adopted but which he or she had not communicated, in the case of an item of evidence, even though the tax administration had invited him or her to do so, or of which he or she had not availed him or herself, in the case of a fact.
(4) The application referred to in subparagraph 3 contains a description of the findings and circumstances about which the tax authority invites the taxpayer to provide evidence, as well as a warning as to the legal consequences.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
17 Slovenské Energetické Strojárne is a company established in Slovakia which operates in the energy sector, in particular by carrying out engineering works related to power plants.
18 In 2020, that company provided assembly and installation services at a power plant in Újpest (Hungary). To that end, it acquired various goods and used various services in Hungary.
19 On 18 February 2021, that company, as a taxpayer established in another Member State, namely Slovakia, submitted to the Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága (Large Taxpayers’ Tax and Customs Directorate of the National Tax and Customs Administration, Hungary; ‘the first-tier tax authority’) an application for a refund of the input VAT paid on goods and services purchased in Hungary for the period from 1 January 2020 to 31 December 2020. That refund application, in the amount of 37 013 654 Hungarian forint (HUF) (approximately EUR 97 400), was based on 19 invoices from the suppliers of those goods and services.
20 On 22 February 2021, pursuant to Paragraph 251/F(1) of the Law on VAT, the first-tier tax authority sent a request for information to Slovenské Energetické Strojárne in order to clarify the facts and establish the merits of the right to a VAT refund requested by the latter. More specifically, that authority requested the communication, within one month of service of the request for information, of a number of documents relating to the refund application.
21 That request was sent to Slovenské Energetické Strojárne’s email address and is deemed to have been received by it.
22 By a decision of 6 May 2021 (‘the first-tier decision’), pursuant to Paragraph 49(1)(b) of the Law on the organisation of the tax administration, the first-tier tax authority discontinued the VAT refund procedure on the ground that that company had not provided the information requested by that authority and that, on the basis of the information available, it was not possible to establish the facts underlying that request with the requisite accuracy.
23 On 9 June 2021, Slovenské Energetické Strojárne lodged a complaint against that decision with the second-tier tax authority. It annexed to its complaint all the documents whose production had been requested by means of the request for information.
24 By a decision of 20 July 2021, the second-tier tax authority upheld the decision of the first-tier tax authority, finding, inter alia, that it could not take into account the documents annexed to the complaint, since Paragraph 124(3) of the Law on the organisation of the tax administration prohibits the production of new items of evidence in support of a complaint where its author had been aware of those items before the adoption of the first-tier decision.
25 Slovenské Energetické Strojárne brought an action against the decision of 20 July 2021 before the Fővárosi Törvényszék (Budapest High Court, Hungary), which is the referring court.
26 Before that court, that company maintains that Paragraph 124(3) of the Law on the organisation of the tax administration is not applicable in the context of a VAT refund procedure. It considers that the prohibition on the production of new evidence provided for by that provision constitutes a material limitation of the right of appeal referred to in Article 23(2) of Directive 2008/9. The one-month period for regularisation laid down in Article 20(2) of that directive in the event of a request for additional information by the tax administration to reply to a VAT refund application does not have the nature of a limitation period. Pursuant to Article 26 of that directive and Paragraph 251/I(4) of the Law on VAT, the only consequence faced by an applicant who does not comply with that period is that he or she would no longer be able to claim the payment of interest in the event of delay in the refund.
27 According to the second-tier tax authority, Paragraph 124(3) of the Law on the organisation of the tax administration is applicable in this case. That provision, which observes the principles of equivalence and effectiveness, aims only to prevent the appeal procedure from being extended over time. Furthermore, the expiry of that regularisation period does not entail forfeiture of the right, since it is possible to apply for restoration of the status quo ante.
28 The referring court therefore asks, first, whether the prohibition on the production of new evidence laid down in Paragraph 124(3) of the Law on the organisation of the tax administration is contrary to Article 23(2) of Directive 2008/9, since that prohibition may entail a material restriction of the taxable person’s right of appeal.
29 That court also asks, secondly, whether such a prohibition does not have the effect of converting the one-month regularisation period laid down in Paragraph 251/F(4) of the Law on VAT into a time limit, given that documents not provided within that period cannot be taken into account after its expiry, in particular at the complaint stage.
30 In that respect, it questions the proportionality of such a prohibition, particularly in the light of the right to an effective remedy enshrined in Article 47 of the Charter. While the Court has ruled, in the judgment of 2 May 2019, Sea Chefs Cruise Services (C‑133/18, EU:C:2019:354), that the one-month period provided for in Article 20(2) of Directive 2008/9 is not a limitation period, the referring court notes that the circumstances of the dispute before it differ from those of the case which gave rise to that judgment, since the Hungarian administrative procedure has two tiers and Hungarian law provides expressly for the application, in the second-tier procedure, of the prohibition on the production of new evidence.
31 Thirdly, the referring court questions whether Directive 2008/9 authorises the tax administration to proceed with discontinuation of the VAT refund procedure, that directive providing only for the adoption of a decision accepting or rejecting the VAT refund application, that is to say a decision on the substance.
32 In those circumstances, the Fővárosi Törvényszék (Budapest High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 23(2) of [Directive 2008/9] to be construed as meaning that national legislation – to be specific, Paragraph 124(3) of [the Law on the organisation of the tax administration] – which, for the purposes of the examination of applications for a refund of [VAT] pursuant to [the VAT Directive], does not allow, at the appeal stage, new facts to be pleaded or new evidence to be relied on or produced, where the applicant was aware of that evidence before the adoption of the first-tier decision but did not present it, even though it was requested to do so by the tax authority, or did not rely on it, thereby creating a material constraint which exceeds the requirements as to form and time limits laid down by Directive 2008/9, is compatible with the requirements laid down in that directive with regard to appeals?
(2) Does an affirmative answer to the first question mean that the one-month period indicated in Article 20(2) of Directive 2008/9 is to be considered [a limitation period]? Is the foregoing compatible with the right to an effective remedy and to a fair trial enshrined in Article 47 of the [Charter], with Articles 167, 169, 170 and 171(1) of the VAT Directive, and with the fundamental principles of [VAT] neutrality, effectiveness and proportionality developed by the [Court]?
(3) Is Article 23(1) of Directive 2008/9, which relates to the refusal of a refund application in whole or in part, to be interpreted as meaning that national legislation – specifically, Paragraph 49(1)[(b)] of the Law on [the organisation of the] tax administration – pursuant to which the tax authority is to bring the proceedings to a close if the applicant taxable person does not respond to a request from the tax authority or comply with its obligation of rectification, failing which it is not possible to examine the application without the proceedings continuing ex officio, is compatible with that provision?’
Consideration of the questions referred
The first and second questions
33 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether the first subparagraph of Article 23(2) of Directive 2008/9, read in the light of the principles of VAT neutrality and effectiveness, must be interpreted as meaning that it precludes national legislation under which a taxable person who has submitted an application for a refund of VAT is prohibited from providing, at the stage of the complaint before a second-tier tax authority, additional information, within the meaning of Article 20 of that directive, requested by the first-tier tax authority and which that taxable person did not provide to the latter authority within the one-month period laid down in Article 20(2) thereof. In that context, that court also questions whether that period constitutes a limitation period and, if so, whether such time barring is compatible with Article 47 of the Charter.
34 It should be recalled, as a preliminary point that, according to Article 1 thereof, the purpose of Directive 2008/9 is to lay down the detailed rules for the refund of VAT, provided for in Article 170 of the VAT Directive, to taxable persons not established in the Member State of refund, who meet the conditions laid down in Article 3 of Directive 2008/9.
35 Like the right to deduct, the right to a refund is a fundamental principle of the common system of VAT established by EU legislation, and, in principle, may not be limited. That right is exercisable immediately in respect of all the taxes charged on input transactions. The deduction system, and accordingly the refund system, is intended to relieve the operator entirely of the burden of the VAT due or paid in the course of all his or her economic activities. The common system of VAT therefore ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves, in principle, subject to VAT (judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 36 and the case-law cited).
36 That fundamental principle of VAT neutrality requires the deduction or refund of input VAT to be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 37 and the case-law cited).
37 The position may, however, be different if non-compliance with such formal requirements effectively prevents the production of conclusive evidence that the substantive requirements have been satisfied (judgment of 21 October 2021, Wilo Salmson France, C‑80/20, EU:C:2021:870, paragraph 77 and the case-law cited).
38 So far as concerns the procedure for exercising the right to the refund of VAT, Article 20 of Directive 2008/9 offers the Member State of refund, when it considers that it does not have all the relevant information on which to make a decision in respect of the whole or part of the refund application, the possibility of requesting, in particular from the applicant or from the competent authorities of the Member State of establishment, additional information which must be provided within one month of the date on which the request reaches the person to whom it is addressed (judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 37).
39 As the Court held in the judgment of 2 May 2019, Sea Chefs Cruise Services (C‑133/18, EU:C:2019:354, paragraph 46), that period of one month laid down in Article 20(2) of that directive is not a limitation period.
40 Lastly, in accordance with the first subparagraph of Article 23(2) of Directive 2008/9, appeals against decisions to refuse a refund application may be made by the taxable person to the competent authorities of the Member State of refund in the forms and within the time limits laid down for appeals in the case of refund applications from persons who are established in that Member State.
41 That provision must be read in the light of recital 3 of that directive, from which it is apparent that that directive is aimed, inter alia, at strengthening the right of appeal by businesses.
42 In accordance with the first subparagraph of Article 23(2) of Directive 2008/9, an appeal such as the administrative complaint at issue in the main proceedings falls, as regards the forms and time limits to which such a complaint is subject, within the domestic legal order of the Member State of refund.
43 Thus, the enactment of measures under which evidence is not to be taken into account where it is produced after a decision rejecting a VAT refund application has been adopted is a matter for the national law of each Member State, by virtue of the principle of the procedural autonomy of Member States, provided nevertheless that those measures are not less favourable than those governing similar domestic situations (principle of equivalence) and do not make it impossible in practice or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see, by analogy, judgment of 9 September 2021, GE Auto Service Leasing, C‑294/20, EU:C:2021:723, paragraph 59 and the case-law cited).
44 Furthermore, in view of the case-law cited in paragraph 39 of the present judgment, such measures cannot result in the recognition, in breach of Article 20(2) of Directive 2008/9, of a time-barring effect upon the expiry of the period of one month from the date of receipt of the request for additional information, laid down in that provision, within which the recipient of that request must provide the Member State of refund with that information, including, as the case may be, additional evidence.
45 In the present case, it is apparent from the order for reference that Slovenské Energetické Strojárne, after having submitted an application for a refund of VAT, was sent, by the first-tier tax authority, a request for additional information, within the meaning of Article 20 of Directive 2008/9, but that it did not provide that information. It is only in the context of an administrative complaint, corresponding to the appeal referred to in Article 23(2) of that directive, lodged with the second-tier tax authority that that company provided the requested information. However, that information was not taken into account since, under Paragraph 124(3) of the Law on the organisation of the tax administration, the applicant for that refund may not, in his or her complaint, produce new evidence of which he or she had been aware before the first-tier decision was adopted.
46 It follows that the dispute in the main proceedings concerns not the breach of formal requirements preventing the production of evidence that the substantive requirements for the entitlement to the VAT refund have been satisfied, but the date on which that evidence must be produced.
47 In that regard, it should be noted, in the first place, that national legislation such as that at issue in the main proceedings has the effect of systematically preventing the refund of VAT to taxable persons who, although having replied late to a request for additional information, meet all the substantive conditions to obtain that refund. As has been recalled in paragraphs 35 and 36 of the present judgment, however, first, the right to a VAT refund constitutes a fundamental principle of the common system of VAT and, in principle, may not be limited and, second, the principle of VAT neutrality requires the deduction or refund of input VAT to be allowed if the substantive requirements are satisfied.
48 In the second place, the Court, after having found that the one-month period laid down in Article 20(2) of Directive 2008/9 for providing additional information is not a limitation period, ruled that, when the refund application is refused in whole or in part, the taxable person who has not communicated the additional information within that period has the right to make an appeal against that refusal decision in accordance with the first subparagraph of Article 23(2) of that directive and to regularise, in such an appeal, his or her refund application by producing additional information capable of establishing the existence of his or her right to the refund of VAT (see, to that effect, judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 48).
49 As the Advocate General noted, in essence, in point 53 of his Opinion, those conclusions drawn from the case-law apply, indifferently, whether the appeal be an administrative appeal, such as that at issue in the main proceedings, or whether it be a judicial appeal.
50 In the third place, national legislation such as that at issue in the main proceedings comes up against the requirements pertaining to the right to good administration, which reflects a general principle of EU law, which are applicable in a tax audit procedure. That principle of good administration requires administrative authorities, such as the tax authority at issue in the main proceedings, when carrying out their inspection duties, to conduct a diligent and impartial examination of all the relevant matters so that they can be sure that, when they adopt a decision, they have at their disposal the most complete and reliable information possible for that purpose (judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 48 and the case-law cited).
51 The lack of possibility for the tax administration to take into account, due to the content of Paragraph 124(3) of the Law on the organisation of the tax administration, any late reply to a request of additional information, which results in a systematic rejection of those late replies, necessarily leads that administration to contravene that principle, since it is adopting a decision which it knows to be possibly based on incomplete – or even erroneous – elements. Moreover, the effect of that is that that tax administration disproportionately breaches the principle of VAT neutrality by leaving the taxable person liable to pay the VAT in respect of which he or she is entitled to obtain a refund, whereas the common system of VAT is intended to relieve the operator entirely of the burden of the VAT due or paid in the course of all his or her economic activities (see, to that effect, judgment of 21 October 2021, CHEP Equipment Pooling, C‑396/20, EU:C:2021:867, paragraph 55).
52 Lastly, in the fourth place, it should be noted that the second paragraph of Article 26 of Directive 2008/9, which expressly concerns the situation in which a taxable person does not provide within the specified time limit the additional information that has been requested from him or her, also supports the interpretation according to which the Member State of refund cannot systematically refuse to take into account late replies to the requests for additional information.
53 In those circumstances, it must be held that national legislation such as that at issue in the main proceedings disregards the fundamental principle of VAT neutrality as well as, in particular by conferring a time-barring effect on the one-month period laid down in Article 20(2) of Directive 2008/9, the principle of effectiveness.
54 In the light of the foregoing considerations, the answer to the first and second questions is that the first subparagraph of Article 23(2) of Directive 2008/9, read in the light of the principles of VAT neutrality and effectiveness, must be interpreted as meaning that it precludes national legislation under which a taxable person who has submitted an application for a refund of VAT is prohibited from providing, at the stage of the complaint before a second-tier tax authority, additional information, within the meaning of Article 20 of that directive, requested by the first-tier tax authority and which that taxable person did not provide to the latter authority within the one-month period laid down in Article 20(2) thereof, that period not constituting a limitation period.
The third question
55 By its third question, the referring court asks, in essence, whether Article 23 of Directive 2008/9 must be interpreted as meaning that it precludes national legislation under which a tax authority must discontinue the VAT refund procedure where the taxable person has not provided, within the time limit, additional information requested by that authority under Article 20 of that directive and where, in the absence of that information, the VAT refund application cannot be processed.
56 In that regard, it should be pointed out that, in the wording of the third question, the referring court mentions only Article 23(1) of Directive 2008/9, which provides that, where the VAT refund application is refused in whole or in part, the grounds for refusal are to be notified by the Member State of refund to the applicant together with the decision.
57 Similarly, the first paragraph of Article 21 of that directive sets the time limits within which the Member State of refund, where it requests additional information, is required to notify the applicant of its decision to approve or refuse the refund application.
58 Thus, those provisions of Directive 2008/9 expressly concern only the possibility of adopting decisions approving or refusing, in whole or in part, the VAT refund application, and not that of discontinuing the refund procedure.
59 For its part, the second subparagraph of Article 23(2) of that directive admittedly provides that, where failure to take a decision on a refund application within the time limits specified in that directive is not regarded either as approval or as refusal, any administrative or judicial procedures which are available in that situation to taxable persons established in that Member State are to be equally available to the applicant. If no such administrative or judicial procedures are available, failure to take a decision on a refund application within those time limits is to mean that the application is deemed to be rejected.
60 In the present case, however, it must be pointed out that a discontinuation decision such as that at issue in the main proceedings is in no way equivalent to a failure to take a decision within the time limit, since such a discontinuation decision puts an end to the procedure initiated by the refund application submitted by the taxable person without granting the refund requested by the latter and must therefore be regarded as constituting a decision refusing that application, within the meaning of Article 23 of Directive 2008/9.
61 It follows that, where an application for a VAT refund submitted by a taxable person established in a Member State other than the Member State of refund is the subject of such a discontinuation decision, on the one hand, the grounds for discontinuation must be notified to the taxable person together with that decision, in accordance with Article 23(1) of Directive 2008/9, and, on the other hand, appeals against that decision must be made to the competent authorities of the Member State of refund, in accordance with the first subparagraph of Article 23(2) of that directive.
62 In any event, in such appeals, the taxable person must have the right to produce the additional information that he or she did not provide within the one-month period laid down in Article 20(2) of Directive 2008/9, as follows from paragraphs 48 and 49 of this judgment.
63 Having regard to the foregoing considerations, the answer to the third question is that Article 23 of Directive 2008/9 must be interpreted as meaning that it does not preclude national legislation under which a tax authority must discontinue the VAT refund procedure where the taxable person has not provided, within the time limit, additional information requested by that authority under Article 20 of that directive and where, in the absence of that information, the VAT refund application cannot be processed, provided that the discontinuation decision is regarded as a decision refusing that refund application, within the meaning of Article 23(1) of that directive, and that it can be the subject of an appeal meeting the requirements provided for in the first subparagraph of Article 23(2) of that same directive.
Costs
64 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. The first subparagraph of Article 23(2) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State, read in the light of the principles of value added tax (VAT) neutrality and effectiveness,
must be interpreted as meaning that it precludes national legislation under which a taxable person who has submitted an application for a refund of VAT is prohibited from providing, at the stage of the complaint before a second-tier tax authority, additional information, within the meaning of Article 20 of that directive, requested by the first-tier tax authority and which that taxable person did not provide to the latter authority within the one-month period laid down in Article 20(2) thereof, that period not constituting a limitation period.
2. Article 23 of Directive 2008/9
must be interpreted as meaning that it does not preclude national legislation under which a tax authority must discontinue the VAT refund procedure where the taxable person has not provided, within the time limit, additional information requested by that authority under Article 20 of that directive and where, in the absence of that information, the VAT refund application cannot be processed, provided that the discontinuation decision is regarded as a decision refusing that refund application, within the meaning of Article 23(1), and that it can be the subject of an appeal meeting the requirements provided for in the first subparagraph of Article 23(2) of that same directive.
[Signatures]