Provisional text

1 August 2025 (*)

( Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 1(2), Article 2(1)(c) and Article 78 – Exemptions on exportation – Article 146(1)(b) – Exempt supply of goods – Service for the administration of VAT refunds to customers not resident in the European Union – Single supply – Distinct and independent supplies – Principal or ancillary supply – Exemptions under Article 135(1)(d) and Article 146(1)(e) – Protection of legitimate expectations – Taxable amount )

In Case C‑427/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Szegedi Törvényszék (Szeged High Court, Hungary), made by decision of 3 July 2023, received at the Court on 11 July 2023, in the proceedings

Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága,

THE COURT (Fourth Chamber),

composed of I. Jarukaitis, President of the Chamber, N. Jääskinen (Rapporteur), A. Arabadjiev, M. Condinanzi and R. Frendo, Judges,

Advocate General: J. Kokott,

Registrar: I. Illéssy, Administrator,

having regard to the written procedure and further to the hearing on 17 October 2024,

after considering the observations submitted on behalf of:

–the Hungarian Government, by D. Csoknyai, Z. Fehér and K. Szíjjártó, acting as Agents,

–the European Commission, by V. Bottka, J. Jokubauskaitė and A. Sipos, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 December 2024,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 1(2), Article 2(1)(c), Article 73, Article 78, Article 135(1)(d) and Article 146(1)(e) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’), and of the principle of the protection of legitimate expectations.

2The request has been made in proceedings between Határ Diszkont Kft. (‘Határ Diszkont’) and the Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Appeals Division of the National Tax and Customs Authority, Hungary; ‘the Appeals Division’) concerning the latter’s refusal to grant an exemption from value added tax (VAT) on fees for the administration of VAT refunds to customers not resident in the European Union.

Legal context

European Union law

3The second subparagraph of Article 1(2) of the VAT Directive provides:

‘On each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components.’

4According to Article 2(1) of that directive:

‘The following transactions shall be subject to VAT:

(a)the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…

(c)the supply of services for consideration within the territory of a Member State by a taxable person acting as such;

…’

5Article 73 of that directive provides:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

6Under Article 78 of that directive:

‘The taxable amount shall include the following factors:

(a)taxes, duties, levies and charges, excluding the VAT itself;

(b)incidental expenses, such as commission, packing, transport and insurance costs, charged by the supplier to the customer.

For the purposes of point (b) of the first paragraph, Member States may regard expenses covered by a separate agreement as incidental expenses.’

7Article 135(1) of the VAT Directive provides:

‘Member States shall exempt the following transactions:

…

(d)transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection;

…’

8According to Article 146(1) of that directive:

‘Member States shall exempt the following transactions:

…

(b)the supply of goods dispatched or transported to a destination outside the Community by or on behalf of a customer not established within their respective territory, with the exception of goods transported by the customer himself for the equipping, fuelling and provisioning of pleasure boats and private aircraft or any other means of transport for private use;

…

(e)the supply of services, including transport and ancillary transactions, but excluding the supply of services exempted in accordance with Articles 132 and 135, where these are directly connected with the exportation or importation of goods covered by Article 61 and Article 157(1)(a).’

9Article 147 of that directive is worded as follows:

‘1. Where the supply of goods referred to in point (b) of Article 146(1) relates to goods to be carried in the personal luggage of travellers, the exemption shall apply only if the following conditions are met:

(a)the traveller is not established within the Community;

(b)the goods are transported out of the Community before the end of the third month following that in which the supply takes place;

(c)the total value of the supply, including VAT, is more than EUR 175 or the equivalent in national currency, fixed annually by applying the conversion rate obtaining on the first working day of October with effect from 1 January of the following year.

However, Member States may exempt a supply with a total value of less than the amount specified in point (c) of the first subparagraph.

Proof of exportation shall be furnished by means of the invoice or other document in lieu thereof, endorsed by the customs office of exit from the Community.

Each Member State shall send to the [European] Commission specimens of the stamps it uses for the endorsement referred to in the second subparagraph. The Commission shall forward that information to the tax authorities of the other Member States.’

Hungarian law

The Law on VAT

10Paragraph 70(1) of the az általános forgalmi adóról szóló 2007. évi CXXVII. törvény (Law No CXXVII of 2007, on value added tax) (Magyar Közlöny 2007/155), in the version applicable to the main proceedings (‘the Law on VAT’), provides:

‘In the case of supplies of goods and services, the basis of assessment shall include:

…

(b)incidental expenses which the supplier of goods or services charges to the acquirer of the goods or recipient of the services, in particular: expenses and costs connected with commission or any other type of intermediation, packaging, transport and insurance;

…’

11According to Paragraph 86(1) of that law, the following are exempt from VAT:

‘…

(d)supplies of services, including negotiation, concerning current accounts, deposits of funds and client accounts, payments, transfers, cheques and other pecuniary claims and financial instruments, but excluding the collection of debt (accounts receivable) itself;

(e)supplies of services, including negotiation, concerning Hungarian or foreign legal tender, with the exception of collectors’ items, namely gold, silver or other metal coins or bank notes which are not normally used as legal tender or coins of numismatic interest;

…’

12Paragraph 98(1) of that law provides:

‘Supplies of goods dispatched by post or transported from the country to a country outside the Community shall be exempt from the tax, provided that the supply or transport:

(a)is carried out by the supplier himself or by a third party acting on his behalf;

(b)is carried out by the purchaser himself, or by a third party acting on his behalf if the additional conditions established in subparagraphs 3 and 4 of this Paragraph or in Paragraphs 99 and 100 of the present law are satisfied.’

13Paragraph 99 of that law provides:

‘1. Where the customer is a foreign traveller and the goods supplied … form part of his or her personal luggage or his or her traveller’s luggage, in order for the exemption provided for in Paragraph 98(1) to apply:

(a)the value of the supply, including the tax, must exceed an amount equal to EUR 175;

(b)the foreign traveller must prove his or her status by means of travel or other documents issued by authorities, recognised by Hungary and which identify the person (“the travel documents”);

(c)at the point of exit of the goods from the Community, the authority must certify that the goods have left the territory by endorsing and stamping the form provided for that purpose by the State tax authorities or any other form authorised by the national tax authorities containing the data provided for in subparagraph 10 (“the tax refund application form”); the goods must be presented simultaneously with the original invoice which confirms that the goods have been supplied.

(a)the seller of the goods is in possession of the first copy of the tax refund application form bearing an endorsement and a stamp referred to in subparagraph 1(c), and

(b)if the tax has been levied at the time of supply of the goods, the seller shall refund the tax to the foreign traveller in accordance with subparagraphs 5 to 8.

(a)acts in person, he is required to present his travel documents;

(b)does not act in person, the person acting in his name and on his behalf must attach a written mandate made out in his name.

(a)shall hand to the seller of the goods the first copy of the tax refund application form bearing an endorsement and a stamp in accordance with subparagraph 1(c), and

(b)shall present to the seller of the goods the original copy of the invoice proving the supply of the goods.

…’

14Under Paragraph 102(1) of the Law on VAT, supplies of services are also exempt from the tax when they are directly connected with goods:

‘…

(b)which leave the territory of the Community under the exportation scheme and where their exit from the territory of the Community is certified by the authority referred to in Paragraph 98(2)(a)’.

…’

Law No LXXIV of 1992 on value added tax

15The az általános forgalmi adóról szóló 1992. évi LXXIV. törvény (Law No LXXIV of 1992 on value added tax) (Magyar Közlöny 1992/128), in force until 31 December 2007, included in the list of supplies of goods and services exempt under Paragraph 30(1) of that law, read in conjunction with Annex 2 to that law, ‘tax refunds made by a trader to a foreign traveller pursuant to a special provision’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

16In 2020, Határ Diszkont sold various goods to customers not resident in the European Union, at its shop in Tompa (Hungary), near to the border between Serbia and Hungary.

17It is apparent from the file before the Court that those customers exported the goods on the same day that they purchased them in Hungary and that the cash payment invoices relating to those purchases were marked ‘VAT paid’. After the goods had been exported, Határ Diszkont refunded those customers for the full amount of VAT shown on the invoice and issued the related disbursement receipt, upon which were the signatures of the issuer and the beneficiary.

18As part of the administration of the VAT refunds, Határ Diszkont charged those customers not resident in the European Union fees corresponding to 15% of the VAT refunded. On the day on which the VAT was refunded, Határ Diszkont thus issued invoices for the administration fees, payment for which, in cash, was evidenced by collection receipts. In its VAT returns, Határ Diszkont recorded the income from those administration fees as remuneration for exempt supplies.

19It is also apparent from the file before the Court that the information relating to the VAT administration fees was displayed in Határ Diszkont’s shop and that foreign customers were informed orally both of the existence of those fees and of the method of calculating them.

During a 2020 tax audit carried out by the Nemzeti Adó- és Vámhivatal Bács-Kiskun Megyei Adó- és Vámigazgatósága (Tax and Customs Directorate for the Bács-Kiskun County, under the responsibility of the National Tax and Customs Authority, Hungary) (‘the first-instance tax authority’), Határ Diszkont argued that the VAT refund administration services were exempt from tax, while, on several occasions, amending its position as to the ground for that exemption.

In its observations on the report relating to that audit, Határ Diszkont argued, inter alia, that the VAT refund administration fees could be regarded as constituting consideration for a supply of financial services, exempt under Article 86(1)(d) and (e) of the Law on VAT. Similarly, according to Határ Diszkont, the exemption for supplies of services directly linked to the export of goods, provided for in Article 102(1)(b) of the Law on VAT, could also be applied to Határ Diszkont in the present case. Határ Diszkont also stated that, nevertheless, in accordance with the information which it had received from the Nemzeti Adó- és Vámhivatal Központi Irányítás Ügyfélkapcsolati és Tájékoztatási Főosztálya (Central Directorate of the National Tax and Customs Authority, Taxpayer Relations and Information Department, Hungary; ‘the Taxpayer Relations Department’), in response to a question that Határ Diszkont had put to it during that audit, the VAT refund administration fees had to be regarded as incidental expenses, within the meaning of Article 70(1)(b) of the Law on VAT, to a supply of goods exempt from VAT under Paragraph 99 of that law and that, as incidental expenses, they should be treated in the same way as the main transaction as regards the VAT taxation regime.

The first-instance tax authority rejected all the grounds for exemption relied on by Határ Diszkont and, by its decision of 22 July 2022, found that Határ Diszkont was liable for VAT arrears.

In that decision, that authority examined, first of all, whether the VAT refund administration service could be regarded as a service that was ancillary to the supply of the goods and concluded that it constituted an independent supply. It emphasised, inter alia, the fact that the supply of goods and the provision of that service did not coincide in time, with the result that it could not be considered that that service facilitated or was complementary to the supply of those goods. That authority also stated that the VAT refund administration service could not be regarded as necessary for the supply of the goods, which was completed as soon as those goods left the territory of the European Union. Similarly, in that authority’s opinion, the service provided by Határ Diszkont facilitated neither the use nor the consumption of those goods, and was therefore not linked to the supply of the goods. In addition, that authority noted that Határ Diszkont had itself treated the VAT refund administration service as an independent service, since it had not included the fees relating to that service in the taxable amount of the supply of the goods and since it had indicated, on the invoices, a date of performance that differed from the date of the supply.

Next, first, as regards the exemption provided for in Article 86(1)(d) and (e) of the Law on VAT, which corresponds to Article 135(1)(d) and (e) of the VAT Directive, the first-instance tax authority came to the conclusion that the service provided by Határ Diszkont to the foreign traveller was an administrative task and that it could not be regarded as an exempt financial service under those provisions. Second, as regards the exemption for supplies of services connected with exports of goods referred to in Article 102(1)(b) of the Law on VAT, corresponding to Article 146(1)(e) of the VAT Directive, the first-instance tax authority reiterated, essentially, that the refund of VAT to the foreign traveller was a new transaction that was not directly connected to the supply of goods. Lastly, that tax authority confirmed that the amount of VAT relating to the administration fees had to be determined on the basis of the amount invoiced in respect of those fees, regarded as an amount net of tax.

In its complaint against the decision of the first-instance tax authority, Határ Diszkont argued that the findings of that authority were contrary to Paragraph 70(1)(b), Paragraph 86(1)(d) and (e) and Paragraph 102(1)(b) of the Law on VAT. It also claimed that the existence of a different approach, in the assessment of its case, between the first-instance tax authority and the Taxpayer Relations Department infringed the principle of legal certainty.

By decision of 27 October 2022, the Appeals Division upheld the decision of the first-instance tax authority, taking the view that it contained an adequate statement of reasons. In its decision, the Appeals Division also considered that the information provided to Határ Diszkont by the Taxpayer Relations Department concerned an issue formulated in very general terms which did not mention the essential fact that the supply of goods, and the supply of services consisting in the administration of VAT refunds, were completely separate from each other, and not simultaneous, and that the service provided by Határ Diszkont was not a necessary condition for a refund of that tax.

Határ Diszkont brought an action before the referring court, the Szegedi Törvényszék (Szeged High Court, Hungary), seeking the annulment of the decision of the Appeals Division, affecting the decision of the first-instance tax authority.

In the first place, the referring court takes the view, unlike the Appeals Division, that the administration of VAT refunds must be regarded as a supply of services that is ancillary to an exempt supply, under point (b) of the first paragraph of Article 78 of the VAT Directive, and that it is also a supply of services directly connected with an export of goods, with the result that it is also exempt from VAT under Article 146(1)(e) of that directive.

In support of its position, the referring court states, first of all, that, since the VAT refund administration service and the invoicing of related fees cannot take place without there having been supplies of goods to customers who are not resident in the European Union, that administration service is a necessary corollary of all supplies of goods made to that type of customer, under the relevant legislative provisions. Therefore, relying also on the principles identified by the Court in the judgment of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855), the referring court considers that it would be artificial to separate the administration of VAT refunds from the corresponding supplies of goods.

Next, as regards the fact that the charging of the VAT refund administration fees and the supply of the goods do not take place simultaneously, the referring court states that point (b) of the first paragraph of Article 78 of the VAT Directive concerns incidental expenses which increase the taxable amount, even though those costs do not necessarily arise at the same time as the supply of the corresponding goods. The referring court states that the Court has already confirmed, in the judgment of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730), that ‘separate payment handling charges’, invoiced separately from the services for which that payment was made, could constitute incidental expenses.

Lastly, as regards the exemption provided for in Article 146(1)(e) of the VAT Directive, concerning the supply of services directly connected with the export of goods, the referring court considers that the direct connection required by that provision, as interpreted by the Court in the judgment of 8 November 2018, Cartrans Spedition (C‑495/17, EU:C:2018:887), exists where a supply of services is ancillary, under point (b) of the first paragraph of Article 78 of the VAT Directive, to an export.

In the second place, the referring court has doubts as to whether the practice of the tax authorities, which for several years took the view that the VAT refund administration services invoiced by Határ Diszkont were validly exempt from VAT before requesting payment of VAT on those services with retroactive effect, without first informing Határ Diszkont of its change of position, is consistent with the principle of the protection of legitimate expectations. That court is uncertain, in particular, whether such a practice is consistent with the case-law of the Court resulting from the judgment of 14 September 2006, Elmeka (C‑181/04 to C‑183/04, EU:C:2006:563).

In addition, the referring court takes the view that Határ Diszkont gave an exact description of the factual situation to the Taxpayer Relations Department, expressly stating that the VAT refund administration fees were due at the same time as the refund of the VAT, and not at the time of the supply of the goods, and that that authority provided Határ Diszkont with non-binding information that contradicted the findings of the first-instance tax authority. The referring court states that, although the information from the Taxpayer Relations Department, which was given during the tax audit, could not have influenced Határ Diszkont’s conduct, that information shows that the tax authorities have differing views on the matter at issue.

In the third place, in view of the fact that Határ Diszkont clearly does not have the possibility of subsequently passing on the VAT which is due to the tax authorities, in respect of the VAT refund administration fees, to customers who are not resident in the European Union, the referring court also has doubts as to the decision of the first-instance tax authority to regard those fees as an amount net of tax, and not as a gross amount including VAT. The referring court sets out the case-law of the Court (judgments of 6 October 2005, MyTravel, C‑291/03, EU:C:2005:591, and of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328), according to which the taxable amount for VAT purposes is the consideration actually received and the corollary of which is that the tax authorities may not charge an amount of VAT exceeding the tax paid by the taxable person.

In those circumstances, the Szegedi Törvényszék (Szeged High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the practice of a Member State according to which the administration of VAT refunds to foreign travellers – which includes the administrative procedures from the time the standard forms for applying for the refund of VAT are submitted up to the refund of the tax – is considered to be a separate supply of services distinct from the tax-exempt supply of goods, on which VAT must be charged and paid in accordance with the general rules, compliant with Article 1(2), Article 2(1)(c), Article 78 and Article 146(1)(e) of [the VAT Directive] in a situation in which the administration fee, which is a percentage of the VAT to be refunded, is received and invoiced simultaneously with the VAT refund, at a time different from the supply and invoicing of the goods and after the customer has paid the consideration for the goods and those goods have exited for a third country?

(2) In the event that the answer to the first question is in the affirmative, is Article 135(1)(d) of the VAT Directive infringed by the practice of a Member State whereby the fee charged for administering refunds of the VAT arising on the supply of goods to foreign travellers is not considered to be exempt from VAT as a ‘transaction concerning payments or debts’?

(3) In the event that the answers to the first and second questions are in the affirmative, is the practice of a Member State compliant with the principle of the protection of legitimate expectations as one of the fundamental principles of the common VAT system where, according to that practice, the issuer of the invoices for the administration fee must also pay VAT retroactively, even though the tax authority had already audited that person on various occasions in the years prior to the inspection and during those audits had examined the issuer’s practice of considering the administration fee to be exempt from VAT and had not raised any objection or informed the issuer of any change in the Member State legislation in force until 31 December 2007, which expressly included “refunds of the tax to foreign travellers processed by the trader under specific legislation” as services exempt from tax?

(4) In the event that the answers to the first to third questions are in the affirmative, is the practice of a Member State tax authority compliant with Articles 73 and 78 of the VAT Directive where it consists of using as the taxable amount for VAT the consideration shown as exempt on the invoices issued for the administration fee and where, according to the tax authority’s decision, the issuer of the invoices must pay VAT on that taxable amount in accordance with the general rules, even though the consideration paid by the foreign travellers does not include that amount?’

Consideration of the questions referred

The first question

By its first question, the referring court asks, in essence, whether Article 1(2), Article 2(1)(c) and Article 78 of the VAT Directive must be interpreted as meaning that an activity of administering refunds of VAT which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union constitutes a supply of services that is distinct from, and independent of, the corresponding exempt supply of goods and must, as such, be subject to VAT. If so, the referring court asks whether such a supply of services must be regarded as exempt under Article 146(1)(e) of the VAT Directive.

In that regard, it should be recalled that, for VAT purposes, each transaction must normally be regarded as distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (judgments of 25 February 1999, CPP, C‑349/96, EU:C:1999:93, paragraph 29; of 27 October 2005, Levob Verzekeringen and OV Bank, C‑41/04, EU:C:2005:649, paragraph 20; and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 35).

Nevertheless, according to settled case-law, in certain circumstances, several formally distinct supplies, which could be provided separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent (judgments of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 69; of 9 March 2023, Generali Seguros, C‑42/22, EU:C:2023:183, paragraph 40; and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 36 and the case-law cited).

There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (judgments of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 70; of 9 March 2023, Generali Seguros, C‑42/22, EU:C:2023:183, paragraph 40; and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 35 and the case-law cited).

That is also the case where one or more elements are to be regarded as constituting the principal supply, while one or more elements are to be regarded, by contrast, as one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply is regarded as ancillary to a principal supply if it does not constitute for customers an end in itself, but a means of better enjoying the principal service of the supplier (judgments of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 71, and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 37 and the case-law cited).

Thus, the Court has held that a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system (judgments of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 31, and of 4 May 2023, Finanzamt X (Permanently installed equipment and machinery), C‑516/21, EU:C:2023:372, paragraph 29 and the case-law cited).

Here, the case in the main proceedings concerns a VAT refund administration service provided by Határ Diszkont to customers not resident in the European Union who have purchased goods the supply of which satisfies the conditions for benefiting from the tax exemption provided for exports.

According to the information available to the Court, that VAT refund administration service consists, first, in verifying the validity of the travel document of the non-resident customer at the time of sale, in issuing a tax refund application form and a sales invoice, in checking the tax refund application form returned by that customer for the purposes of VAT refund, and in ensuring that the formalities required at the border have been completed by the customs authorities, and then in amending, copying and archiving the sales invoice. Second, that service consists in refunding, in cash, the amount that the non-resident customer had paid as a VAT advance, in issuing a disbursement receipt signed by the customer, in issuing an invoice for the VAT refund administration fees and in issuing a collection receipt signed by the non-resident customer and, lastly, in receiving payment for those fees in cash.

The referring court considers that that service constitutes, in principle, a supply of services ancillary to the supply of goods. Nevertheless, that court appears to have doubts as to the merits of that assessment on the ground that the VAT refund administration fees are entered in the accounts and invoiced not at the same time as the supply and invoicing of the goods, but at the time when the VAT is refunded, namely after the customer has paid for the goods and they have been exported to a third country.

In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether the taxable person provides a single supply in a particular case and to make all definitive findings of fact in that regard. Nevertheless, it is for the Court to provide the national courts with all the guidance as to the interpretation of EU law which may be of assistance in adjudicating on the case pending before them (judgments of 27 October 2005, Levob Verzekeringen and OV Bank, C‑41/04, EU:C:2005:649, paragraph 23; of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 33, and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 38 and the case-law cited).

46In that regard, it must be noted that, first, while it is true that there is necessarily a connection between the provision of the VAT refund administration service and the corresponding exempt supply of goods, given that the supply of that service presupposes the existence of that supply of goods, the Court has already established that such a connection is not sufficient in itself to determine whether or not there is a single complex transaction for VAT purposes (see, to that effect, judgment of 9 March 2023, Generali Seguros, C‑42/22, EU:C:2023:183, paragraph 41 and the case-law cited).

47In order for several elements or acts supplied by the taxable person to be regarded as a single supply within the meaning of the case-law of the Court referred to in paragraph 39 of the present judgment, the inseparable link between those elements or acts must necessarily be reciprocal, so that one element or act depends on the other and vice versa. In the present case, the supply of goods, which takes place before the VAT refund administration service is completed, in no way depends on that service.

48In addition, the provision of the VAT refund administration service and the corresponding supply of goods can also be separated.

49First, it is apparent from the information in the file before the Court that the provision of the VAT refund administration service is not the necessary outcome of the supply of goods. If the customer who is not resident in the European Union ultimately does not transport the purchased goods into a third country, the exemption referred to in Article 146(1)(b) of the VAT Directive will not apply to him or her and he or she will not be able to claim a refund of the VAT, but the supply will nevertheless be regarded as having taken place, since the right to dispose of the goods as owner has been transferred to that customer. The same will apply if the customer who is not resident in the European Union exports the goods outside the territory of the European Union, but does not present those goods, at the border, to the customs office in order to prove that they have left that territory. Thus, even if the VAT is not refunded on the ground that the formal conditions for the refund of the tax are not met, as the case may be in the absence of convincing evidence that the goods have left the territory of the European Union, or in the absence of an application by the customer for a refund, the supply will still have taken place and the purchased goods will be freely available to the customer.

50It follows from the foregoing considerations that the VAT refund administration service and the supply of goods, at issue in the main proceedings, cannot be regarded as so closely linked that they form, objectively, a single indivisible economic supply which it would be artificial to split, within the meaning of the case-law referred to in paragraph 39 of the present judgment.

51Second, even if the VAT exemption from which purchasers of goods who use the VAT refund administration service may benefit, provided that the conditions laid down by law for that exemption are satisfied, is received by them as a discount on the purchase price of those goods, that fact cannot support a finding that such a service is ancillary to the supply of those goods.

52It appears that the activity of administering VAT refunds pursues an objective which is independent of the supply of goods.

53It is apparent from the file before the Court, first, that the supply of the goods in question in the main proceedings was completed and that the customers who are not resident in the European Union acquired the right to dispose in full of the goods purchased from Határ Diszkont and to transport them out of the European Union as soon as they were paid for, without any ancillary service being necessary in that regard. Second, in order to be able to use the VAT refund administration service after the supply of the goods, it is for the customer, who already has his or her goods, to take additional steps by returning to Határ Diszkont’s shop and by providing Határ Diszkont with the documentation required by law in order to benefit from the exemption for exports. It cannot therefore be ruled out that a customer, after purchasing goods, may decide not to use that service and thus waive the refund of the VAT which he or she paid on the purchase of those goods.

54Thus, in accordance with the case-law cited in paragraph 40 of the present judgment, the VAT refund administration service cannot be regarded as constituting a supply of services that is ancillary to the supply of goods, since it is not merely a means of better enjoying that supply of goods, but is an end in itself.

55Lastly, in order to provide a complete answer to the referring court, it must be observed that, for the purpose of interpreting Article 78 of the VAT Directive and in accordance with the case-law of the Court, since the VAT refund administration service and the supply of goods in question in the main proceedings constitute independent transactions, the same taxable amount is not applicable to both of them. Thus, the fees connected with such a service, which constitutes an independent supply and an end in itself for the recipient of those fees, cannot constitute incidental expenses with respect to a supply of goods under Article 78 of that directive (see, to that effect, judgment of 17 January 2013, BGŻ Leasing, C‑224/11, EU:T:2013:15, paragraph 49).

56Therefore, subject to the final assessments which it is for the referring court, in accordance with the case-law cited in paragraph 45 of the present judgment, to carry out, it appears that the VAT refund administration service provided by Határ Diszkont is a supply that is distinct from and independent of the corresponding supply of goods, with the result that it does not share the tax treatment of that supply of goods in relation to VAT.

57As regards the exemption set out in Article 146(1)(e) of the VAT Directive, it must be noted at the outset that it supplements the exemption set out in Article 146(1)(a) of that directive, and that it is intended, like the latter exemption, to ensure that the supply of services concerned is taxed at the place of destination of those services, that is, the place where the exported products are consumed (judgment of 29 June 2017, L.Č., C‑288/16, EU:C:2017:502, paragraph 19).

58In that regard, it follows from the wording of Article 146(1)(e) of the VAT Directive that the supply of services, including transport and ancillary transactions, but excluding the supply of services exempted in accordance with Articles 132 and 135, where these are directly connected with the exportation or importation of goods covered by Article 61 and Article 157(1)(a) of that directive are exempt from VAT.

59As the Advocate General observed in points 61 and 62 of her Opinion, there is nothing in the file before the Court to suggest that the exported goods in question in the main proceedings are in one of the situations referred to in Article 146(1)(e) of that directive.

60First, it is not apparent from that file that the exports in question relate to goods which, in accordance with Article 61 of the VAT Directive, are either not in free circulation in the European Union but are intended to be placed in a free zone or under customs warehousing arrangements or which benefit from temporary importation arrangements with total exemption from import duty, or under external transit arrangements, or which are in free circulation but benefit from the intra-Community transit arrangements. Second, it is not apparent from that file that Article 157(1)(a) of that directive, which concerns the fact that Member States may exempt the importation of goods which are intended to be placed under warehousing arrangements other than customs warehousing, is relevant for the resolution of the dispute in the main proceedings.

61In any event, even if the referring court were to find that, at the very least, some of the transactions at issue in the dispute in the main proceedings fall within the scope of the situations referred to in Article 146(1)(e) of the VAT Directive, it must be borne in mind that the requirement of a direct connection between the supplies of services and the exports of the goods concerned, laid down by that provision, entails, inter alia, that, by their subject matter, those supplies of services contribute to the actual performance of an exportation transaction (see, to that effect, judgment of 8 November 2018, Cartrans Spedition, C‑495/17, EU:C:2018:887, paragraph 35 and the case-law cited).

62In the present case, given the characteristics of the activity of administering VAT refunds that is carried out by Határ Diszkont, it cannot be concluded that that activity contributes to the actual performance of an exportation transaction. The exportation transaction is carried out entirely by the foreign customer irrespective of the VAT refund administration service; the latter has no bearing on the carrying out of that transaction and, moreover, takes place at a later stage, after that transaction has already been completed.

63For those reasons, the VAT refund administration service at issue in the main proceedings does not come under the exemption provided for in Article 146(1)(e) of the VAT Directive.

64That conclusion is consistent with the requirement that the terms used to specify the exemptions are to be interpreted strictly, since those exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, by analogy, judgments of 7 April 2022, I (VAT exemption for hospital services), C‑228/20, EU:C:2022:275, paragraph 34, and of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 43 and the case-law cited).

65In the light of the foregoing, the answer to the first question is that Article 1(2), Article 2(1)(c) and Article 78 of the VAT Directive must be interpreted as meaning that an activity of administering refunds of VAT which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union constitutes a supply of services that is distinct from, and independent of, the corresponding exempt supply of goods and must, as such, be subject to VAT. Such a supply of services does not come under the exemption provided for in Article 146(1)(e) of that directive.

The second question

66By its second question, the referring court asks, in essence, whether Article 135(1)(d) of the VAT Directive must be interpreted as meaning that an activity of administering refunds of VAT which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union comes under the exempt transactions referred to in that provision.

67As regards Article 135(1)(d) of the VAT Directive, it should be recalled that, according to that provision, Member States are to exempt transactions concerning ‘deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments’.

68As the Court has held, such transactions, including those concerning ‘payments’ or ‘transfers’, fall within the field of financial transactions and concern, in particular, payment instruments whose mode of operation involves a transfer of money (see, to that effect, judgment of 17 December 2020, Franck, C‑801/19, EU:C:2020:1049, paragraph 41 and the case-law cited).

69It thus follows from the case-law of the Court that a supply of services may be classified as a ‘transaction concerning transfers’ or as a ‘transaction concerning payments’, within the meaning of Article 135(1)(d) of the VAT Directive only where it effects the legal and financial changes which are characteristic of the transfer of a sum of money.

70By contrast, the supply of a mere physical, technical or administrative service not effecting such changes does not come within that provision (judgment of 25 July 2018, DPAS, C‑5/17, EU:C:2018:592, paragraph 38 and the case-law cited).

71According to settled case-law, the test that makes it possible to distinguish a transaction that has the effect of transferring funds and bringing about changes in the legal and financial situation, which falls within the scope of the exemption in that provision, from a transaction that does not have such effects and is therefore outside its scope, is whether the transaction under consideration causes the actual or potential transfer of ownership of the funds concerned, or fulfils in effect the specific, essential functions of such a transfer (judgment of 3 October 2019, Cardpoint, C‑42/18, EU:C:2019:822, paragraph 22 and the case-law cited).

72In the present case, it must be noted that Határ Diszkont did not cause the actual or potential transfer of ownership of funds to the customers who are not resident in the European Union. It merely retained the amounts of VAT on the purchases of the goods in question pending the submission, by those customers, of the documentation proving that the conditions for the exemption for exports were in fact fulfilled. Once Határ Diszkont had been provided with the relevant documentation enabling it to establish that VAT was not due on those purchases, it refunded the corresponding amounts.

73Thus, although the VAT refund administration service provided by Határ Diszkont, involved, in principle, the refunding of sums in cash, that supply of services must be regarded not as a supply of a financial service, within the meaning of the case-law of the Court, but as a supply of an administrative service.

74The answer to the second question is therefore that Article 135(1)(d) of the VAT Directive must be interpreted as meaning that an activity of administering refunds of VAT which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union does not come under the exempt transactions referred to in that provision.

The third question

75By its third question, the referring court asks, in essence, whether the principle of the protection of legitimate expectations must be interpreted as precluding the tax authorities from subsequently making certain supplies of services subject to VAT where those authorities have checked and accepted the taxable person’s VAT returns for several years without challenging the classification of those supplies of services as VAT-exempt supplies and have not informed that taxable person of the change in the national legislation which, in its previous version, expressly stated that those supplies of services were among the activities exempt from VAT, and when, following a request for an opinion submitted under the national legislation in force, that taxable person has received a response from the tax authorities to the effect that those supplies of services were to be regarded as expenses incidental to an exempt supply of goods sharing the treatment of the main transaction as regards the VAT exemption scheme.

76In that regard, it should be borne in mind that, according to settled case-law, the principle of the protection of legitimate expectations forms part of the fundamental principles of the European Union and is binding on every national authority responsible for applying EU law (see, to that effect, judgments of 11 July 2002, Marks & Spencer, C‑62/00, EU:C:2002:435, paragraph 44, and of 16 January 2025, BALTIC CONTAINER TERMINAL, C‑376/23, EU:C:2025:20, paragraph 64 and the case-law cited).

77It follows that, when implementing the provisions of the VAT Directive, the national authorities are required to observe that principle.

78The right to rely on that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him or her (judgments of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 43; of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 44, and of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph 90 and the case-law cited).

79In that regard, it is necessary to determine whether the conduct of an administrative authority has given rise to a reasonable expectation in the mind of a prudent and well-informed trader and, if it did, the legitimate nature of that expectation must then be established (judgments of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 44, and of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 45 and the case-law cited).

80As described in the order for reference, the administrative practice of the national tax authorities does not appear to be such as to demonstrate that those conditions are satisfied in the case in the main proceedings.

81First, as regards the failure, during several tax audits, to challenge the classification of the VAT refund administration activities as VAT-exempt transactions, it follows from the case-law that the national tax authority’s mere acceptance, even for several years, of the VAT returns, which did not include the amounts relating to certain transactions carried out by the taxable person, does not amount to a precise assurance provided by that authority that VAT is not to be applied to those transactions and cannot, therefore, give rise to a legitimate expectation in that regard (see, to that effect, judgment of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph 92).

82Similarly, as the Advocate General observed, in essence, in point 73 of her Opinion, the fact that the national tax authorities accepted Határ Diszkont’s VAT returns for several years without challenging, during the tax audits, the classification of the VAT refund administration transactions as VAT-exempt transactions does not in principle suffice, except in very specific circumstances, to give rise, in the mind of a prudent and well-informed trader, to a reasonable expectation that that tax would not be levied on such transactions (see, by analogy, judgments of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei, C‑144/14, EU:C:2015:452, paragraph 46, and of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraphs 47 and 48).

83In that regard, the order for reference indicates that it is ‘clearly apparent’ from the records of those tax audits that the tax authorities considered for years that Határ Diszkont had been lawfully issuing VAT-exempt invoices for the VAT refund administration service. The referring court has not, however, provided further details to make it possible to assess whether those records were such as to give rise to a reasonable expectation that that tax would not be applied to that service.

84Therefore, it must be noted that, in whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes precise assurances, within the meaning of the case-law cited in paragraph 78 of the present judgment, that are capable of giving rise to legitimate expectations in the mind of an individual. However, a person may not plead breach of the principle of the protection of legitimate expectations unless he or she has been given precise assurances by the authorities (see, to that effect, judgments of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 25, and of 16 January 2025, BALTIC CONTAINER TERMINAL, C‑376/23, EU:C:2025:20, paragraph 65 and the case-law cited).

85It is, in that regard, for the referring court to ascertain whether the audit records contained ‘precise assurances’, within the meaning of the case-law of the Court referred to in paragraph 84 of the present judgment, as regards the tax treatment of the VAT refund administration service at issue in the main proceedings.

86As regards, second, the lack of information regarding the change in the national legislation, it is sufficient to note that such an omission cannot under any circumstances constitute a ‘precise assurance’ within the meaning of the case-law referred to in paragraph 81 of the present judgment. In addition, the principle of the protection of legitimate expectations does not place an obligation on the tax authorities to inform taxable persons of the tax legislation changes which enter into force, of which prudent and well-informed traders should be aware.

87Third, as regards the information provided by the tax authorities in question in the case in the main proceedings, following Határ Diszkont’s request for an opinion, when the tax audit was already ongoing, it is sufficient to note that, as the Advocate General stated in point 76 of her Opinion and as the referring court also notes, such ‘ex post’ non-binding information could not have had any effect on the transactions which were the subject of that audit and which Határ Diszkont had carried out before that information was provided to it.

88Such information from the tax authority is therefore irrelevant in that context.

89In the light of those considerations, the answer to the third question is that the principle of the protection of legitimate expectations must be interpreted as not precluding the tax authorities from subsequently making certain supplies of services subject to VAT where those authorities have checked and accepted the taxable person’s VAT returns for several years without challenging the classification of those supplies of services as VAT-exempt supplies and have not informed that taxable person of the change in the national legislation which, in its previous version, expressly stated that those supplies of services were among the activities exempt from VAT. In that context, it is irrelevant that, following a request for an opinion submitted under the applicable national legislation, the taxable person has received an ‘ex-post’ and non-binding response from the tax authorities, to the effect that those supplies of services were to be regarded as expenses incidental to an exempt supply of goods sharing the treatment of the main transaction as regards the VAT exemption scheme.

The fourth question

90By its fourth question, the referring court asks, in essence, whether Articles 73 and 78 of the VAT Directive must be interpreted as precluding the practice of the tax authorities of a Member State whereby the amounts invoiced as consideration for a VAT refund administration service, that is, the administration fees, are deemed to be net amounts, not including VAT, on the basis of which the tax to be paid by the issuer of those invoices must be calculated.

91It should be borne in mind in that regard that it follows from Article 1(2) and Article 73 of the VAT Directive that the principle of the common system of VAT entails the application to goods and services of a general tax on consumption exactly proportional to their price and that the taxable amount includes everything which constitutes consideration obtained or to be obtained by the supplier of goods or services for transactions with the purchaser, customer or a third party. Article 78 of that directive lists certain items which are to be included in the taxable amount. Point (a) of the first paragraph of Article 78 provides that VAT is not to be included in the taxable amount (judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 32).

92In accordance with the general rule set out in Article 73 of the VAT Directive, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is, the value actually received, and not a value estimated according to objective criteria (judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 33).

93That rule must be applied in accordance with the basic principle of that directive, namely that the VAT system is aimed at taxing only the end consumer (judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 34).

94Furthermore, as the Advocate General observed in point 81 of her Opinion, the Court has explicitly held that the corollary of point (a) of the first paragraph of Article 78 of the VAT Directive is the fact that VAT is always automatically included in the agreed price, even if the taxable person errs in determining the applicable rate (see, to that effect, judgment of 21 March 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate), C‑606/22, EU:C:2024:255, paragraph 27).

95Given that, in accordance with the principle of VAT neutrality recalled in paragraph 93 of the present judgment, the VAT system is aimed at taxing only the end consumer, the price agreed between the end consumer and the supplier of goods or services must be deemed to include the VAT charged on those transactions, whether or not those transactions have been invoiced (judgment of 21 March 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate), C‑606/22, EU:C:2024:255, paragraph 26).

96Consequently, the price agreed, in the case in the main proceedings, for the VAT refund administration service, namely 15% of the VAT refunded, must be regarded as a gross price already including the tax. The taxable amount on which the VAT rate is then to be applied should be calculated accordingly.

97As stated by the Advocate General in point 82 of her Opinion and in accordance with the case-law of the Court recalled in paragraphs 94 and 95 of the present judgment, the fact that the taxable person may have erred in considering the transactions at issue as exempt and therefore believed that the VAT rate applicable to those transactions should have been zero is irrelevant in that regard.

98According to settled case-law, when a contract of sale has been concluded without reference to VAT, and in a situation where the supplier has no means of recovering from the purchaser the VAT claimed subsequently by the tax authorities, taking the total price, without deducting the VAT, as the taxable amount on which the VAT is to be levied, leads to a situation where it is the supplier which bears the VAT burden, thereby conflicting with the principle that VAT is a tax on consumption to be borne by the end consumer (see, to that effect, judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 35).

99Taking that amount as the taxable amount also conflicts with the rule that the tax authorities may not charge a VAT amount exceeding the amount paid by the taxable person (judgment of 7 November 2013, Tulică and Plavoșin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 36 and the case-law cited).

100However, the position would be different if the supplier were able, under national law, to recover, from the purchasers, the VAT claimed subsequently by the tax authorities.

101In the present case, it is apparent from the file before the Court that Határ Diszkont is clearly unable subsequently to pass onto its customers, who are private individuals not resident in the territory of the European Union, the VAT which the tax authorities have ordered it to pay on the fees for administering refunds of VAT.

102In the light of all of the foregoing considerations, the answer to the fourth question is that Articles 73 and 78 of the VAT Directive must be interpreted as precluding the practice of the tax authorities of a Member State whereby the amounts invoiced as consideration for a VAT refund administration service, that is, the administration fees, are deemed to be net amounts, not including VAT, where the supplier has considered their supply of services to be exempt and it is manifestly impossible for the supplier subsequently to recover from the purchasers of VAT-exempt goods the amount of VAT claimed by the tax authorities.

Costs

103Since 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 (Fourth Chamber) hereby rules:

1.Article 1(2), Article 2(1)(c) and Article 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that an activity of administering refunds of value added tax (VAT) which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union constitutes a supply of services that is distinct from, and independent of, the corresponding exempt supply of goods and must, as such, be subject to VAT. Such a supply of services does not come under the exemption provided for in Article 146(1)(e) of that directive.

2.Article 135(1)(d) of Directive 2006/112

must be interpreted as meaning that an activity of administering refunds of value added tax (VAT) which customers who are not resident in the European Union paid when purchasing goods which they subsequently transport outside the European Union does not come under the exempt transactions referred to in that provision.

3.The principle of the protection of legitimate expectations

must be interpreted as not precluding the tax authorities from subsequently making certain supplies of services subject to value added tax (VAT) where those authorities have checked and accepted the taxable person’s VAT returns for several years without challenging the classification of those supplies of services as VAT-exempt supplies and have not informed that taxable person of the change in the national legislation which, in its previous version, expressly stated that those supplies of services were among the activities exempt from VAT. In that context, it is irrelevant that, following a request for an opinion submitted under the applicable national legislation, the taxable person has received an ‘ex-post’ and non-binding response from the tax authorities, to the effect that those supplies of services were to be regarded as expenses incidental to an exempt supply of goods sharing the treatment of the main transaction as regards the VAT exemption scheme.

4.Articles 73 and 78 of Directive 2006/112

must be interpreted as precluding the practice of the tax authorities of a Member State whereby the amounts invoiced as consideration for a value added tax (VAT) refund administration service, that is, the administration fees, are deemed to be net amounts, not including VAT, where the supplier has considered their supply of services to be exempt and it is manifestly impossible for the supplier subsequently to recover from the purchasers of VAT-exempt goods the amount of VAT claimed by the tax authorities.

[Signatures]

—

Language of the case: Hungarian.