15.8.2008

EN

Official Journal of the European Union

C 209/28

(Case C-244/08)

(2008/C 209/42)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and M. Afonso, Agents)

Defendant: Italian Republic

Form of order sought

—Declare that, with regard to the refund of VAT to a taxable person established in another Member State or in a non-member country, even where that person has a fixed establishment, the Italian Republic has failed to fulfil its obligations under Article 1 of Eighth Council Directive 79/1072/EEC (1) of 6 December 1979 on the harmonization of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, and Article 1 of Thirteenth Council Directive 86/560/EEC (2) of 17 November 1986 on the harmonization of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory, in so far as it obliges a taxable person whose registered office is in a Member State or in a non-member country but who has a fixed establishment which, during the period concerned, supplied goods or services in Italy, to obtain a refund of input VAT by means of the mechanisms provided for in those directives, rather than by means of deduction, where goods or services are purchased not through the fixed establishment in Italy but directly from the place in which that person is principally established;

—order the Italian Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission requests the Court of Justice to declare that it is incompatible with Community law for an Italian measure to oblige a person who is subject to VAT whose registered office is in a Member State or in a non-member country but who also has a fixed establishment in Italy which, during the period concerned, has supplied goods or services in Italy, to obtain a refund of input VAT by means of the mechanisms provided for in Directive 79/1072/EEC (the Eighth VAT Directive) and Directive 86/560/EEC (the Thirteenth VAT Directive) rather than by means of the normal deduction mechanism provided for as a general rule in Directive 77/388/EEC (the Sixth VAT Directive), where goods or services are purchased not through the fixed establishment in Italy but directly from the place in which that person is principally established abroad.

Such a measure, which makes it excessively cumbersome for the taxpayers concerned to comply with their tax obligations, is, in the Commission's view, contrary to the provisions and fundamental principles of the above-mentioned VAT directives, which provide that a foreign taxpayer who has a fixed establishment in Italy and who engages in commercial transactions in Italy from that establishment, must be able to use the normal deduction mechanism provided for in the Sixth Directive, even if some commercial transactions are effected directly from the place in which that person is principally established.

* * *

(1) OJ 1979 L 331, p. 11.

(2) OJ 1986 L 326, p. 40.

(3) OJ 1977 L 145, p. 1 — Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.