Official Journal of the European Union

C 423/8

(Case C-189/18) (*)

(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Articles 167 and 168 - Right to deduct VAT - Refusal - Fraud - Taking of evidence - Principle of respect for the rights of defence - Right to be heard - Access to the file - Article 47 of the Charter of Fundamental Rights of the European Union - Effective judicial review - Principle of equality of arms - Adversarial principle - National legislation or a national practice whereby, during an assessment of the right to deduct VAT exercised by a taxable person, the tax authority is bound by the findings of fact and legal qualifications which were made by it in the context of related administrative procedures to which that taxable person was not party)

(2019/C 423/09)

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicant: Glencore Agriculture Hungary Kft.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Operative part of the judgment

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the principle of respect for the rights of defence and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding, in principle, legislation or a practice of a Member State whereby, during an assessment of the right to deduct value added tax (VAT) exercised by a taxable person, the tax authority is bound by the findings of fact and legal qualifications already made by it in the context of related administrative procedures brought against that taxable person’s suppliers, on which are based decisions which have become final finding the existence of VAT fraud committed by those suppliers, on condition, firstly, that it does not absolve the tax authority of the need to make evidence known to the taxable person, including evidence resulting from those related administrative procedures, on the basis of which it intends to take a decision, and that that taxable person is not thereby deprived of the right to effectively call into question those findings of fact and legal qualifications during the proceedings concerning him, secondly, that that taxable person have access during those proceedings to all of the evidence collected during those related administrative procedures or any other procedure on which that authority intends to base its decision or which may be useful to the exercise of the rights of defence, unless objectives of public interest warrant restricting that access and, thirdly, that the court ruling on an action against that decision be able to assess the lawfulness of the collecting and use of that evidence and the findings made in the administration decisions taken in relation to those suppliers, which are decisive to the outcome of the action.

(*) Language of the case: Hungarian.

ECLI:EU:C:2019:140