Order of the Court (Tenth Chamber) of 3 September 2020

Harmonisation of fiscal legislationCommon system of value added taxDeduction of input taxRefusal on the ground that the supplies of goods had not actually been carried out, as a result of fraud and irregularitiesChain of subcontractors99857 National practice refusing the right to a deduction on the ground that the conduct of the taxable person and of the issuer of the invoices were considered to be fraudulentFailure to have comply with the principles of fiscal neutrality, of effectiveness and of proportionalityUnlawfulLimitsVerification a matter for the national court

(Council Directive 2006/112)

(see paras 30-38, 41-45, operative part)

Operative part

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with the principles of fiscal neutrality, of effectiveness and of proportionality, must be interpreted as precluding a national practice by which the tax authorities refuse a taxable person the right to deduct input value added tax on the ground that the conduct of that taxable person and of the issuer of the invoices amounts to fraud because, first, their contracts were not necessary for the performance of the economic transactions in question and could be legally classified other than how the parties did so, secondly, that issuer has had recourse, without it being necessary or economically rational, to a chain of subcontractors, some of which did not have the necessary personnel and material resources and, thirdly, that taxable person had personal or organisational links with that issuer as well as with one of those subcontractors. In order to provide a basis for such a refusal, it must be established, other than by assumptions based on pre-established criteria, that that same taxable person actively participated in fraud or that that taxable person knew or should have known that those transactions were connected with fraud committed by the issuer of the invoices, which is for the referring court to ascertain.