Official Journal of the European Union

Series C

C/2024/1512

26.2.2024

(Case C-537/22, (1) Global Ink Trade)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Refusal of the right to deduct - Obligations of the taxable person - Duty of diligence - Burden of proof - Principles of fiscal neutrality and legal certainty - Primacy of EU law - Conflict between the case-law of a national court and EU law)

(C/2024/1512)

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicant: Global Ink Trade Kft.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Operative part of the judgment

1.The principle of the primacy of EU law must be interpreted as requiring a national court, which has exercised the discretion conferred on it by Article 267 TFEU, to disregard the legal rulings of a higher national court if it considers, in the light of the interpretation of a provision of EU law provided by the Court in the form of a judgment or a reasoned order within the meaning of Article 99 of its Rules of Procedure, that those rulings are not consistent with EU law. That principle does not, however, preclude national legislation that merely requires lower national courts to state reasons for any departure from those rulings.

2.Article 167, Article 168(a) and Article 178(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in the light of the principles of fiscal neutrality and legal certainty, must be interpreted as not precluding a practice by which the tax authority refuses a taxable person the benefit of the right to deduct value added tax (VAT) relating to the acquisition of goods supplied to that taxable person, on the ground that credence cannot be given to the invoices relating to those acquisitions on account of circumstances that demonstrate a lack of diligence attributable to that taxable person and which are assessed, in principle, in the light of a circular aimed at taxable persons published by that authority, provided that:

—the practice and the circular in question do not undermine the obligation on that authority to establish to the requisite legal standard the objective evidence from which it may be concluded that the taxable person committed VAT fraud, or knew or should have known that the transaction concerned was connected with such fraud;

—the practice and the circular in question do not require the taxable person concerned to undertake complex and far-reaching checks on the other party to the contract;

—the requirements applied by that authority are consistent with those laid down in that circular; and

—the circular published for taxable persons is worded unequivocally and its application is foreseeable by those subject to it.

3.Directive 2006/112 must be interpreted as meaning that:

—where a tax authority intends to refuse a taxable person the right to deduct the input VAT paid on the ground that the taxable person concerned has participated in a VAT carousel fraud, it precludes that tax authority from merely establishing that that transaction forms part of a circular invoicing chain;

—it is for that tax authority — without necessarily identifying all the operators involved in the fraud and their respective conduct — first, to provide an accurate description of the constituent elements of the fraud and to prove fraudulent conduct; and, secondly, to establish that the taxable person actively participated in that fraud or knew, or ought to have known, that the acquisition of goods or services relied on as a basis for that right was connected with that fraud.

(1) OJ C 432, 14.11.2022.

ELI: http://data.europa.eu/eli/C/2024/1512/oj

ISSN 1977-091X (electronic edition)

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