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Joined Cases C-621/10 and C-129/11: Judgment of the Court (Second Chamber) of 26 April 2012 (references for a preliminary ruling from the Administrativen sad Varna (Bulgaria) — Balkan and Sea Properties ADSITs (C-621/10), Provadinvest OOD (C-129/11) v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (VAT — Directive 2006/112/EC — Articles 73 and 80(1) — Sale of immovable property between connected companies — Value of the transaction — National legislation providing that for transactions between connected persons the taxable amount for VAT purposes is the open market value of the transaction)
ECLI:EU:UNKNOWN:62010CA0621
62010CA0621
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16.6.2012
Official Journal of the European Union
C 174/11
(Joined Cases C-621/10 and C-129/11)
(VAT - Directive 2006/112/EC - Articles 73 and 80(1) - Sale of immovable property between connected companies - Value of the transaction - National legislation providing that for transactions between connected persons the taxable amount for VAT purposes is the open market value of the transaction)
2012/C 174/15
Language of the case: Bulgarian
Referring court
Parties to the main proceedings
Applicants: Balkan and Sea Properties ADSITs (C-621/10), Provadinvest OOD (C-129/11)
Defendants: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
Re:
References for a preliminary ruling — Administrativen sad Varna — Bulgaria — Interpretation of Article 80(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Connected companies concluding a contract for the sale of immovable property — Provisions of national legislation that for transactions between connected persons the taxable amount for the purposes of VAT is the open market value of the transaction — Methods of determining open market values — Exclusion of the right to deduct VAT where the calculation of tax is unlawful
Operative part of the judgment
1.Article 80(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the conditions of application it sets out are exhaustive and, consequently, that national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of the transaction in cases other than those listed in that provision, in particular where the taxable person has a full right of deduction of value added tax, which is for the national court to ascertain.
2.In circumstances such as those of the main proceedings, Article 80(1) of Directive 2006/112 confers on the companies concerned the right to rely on it directly to oppose the application of provisions of national legislation that are incompatible with that provision. If it is not possible to interpret the national legislation in conformity with Article 80(1) of the directive, the national court should disapply any provision of that legislation that is contrary to it.
OJ C 72, 5.3.2011 OJ C 145, 14.5.2011