Case C‑124/12
AES-3C Maritza East 1 EOOD
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Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite, Plovdiv
(Request for a preliminary ruling from the Administrativen sad Plovdiv)
(Value added tax— Directive 2006/112/EC— Articles168(a) and 176— Right to deduction— Expenditure related to the purchase of goods and the supply of services for staff— Staff supplied to the taxable persons claiming the right to deduction but employed by another taxable person)
Summary— Judgment of the Court (Sixth Chamber), 18July 2013
1.Harmonisation of fiscal legislation— Common system of value added tax— Deduction of input tax— Articles168(a) and 176, second paragraph, of Directive 2006/112— Expenditure related to the purchase of goods and the supply of services for staff— National legislative provision refusing the right to deduction to a taxable person, bound by a contract, for the provision of staff, to another taxable person, due to the lack of employment contract between the first taxable person and the staff— Not permissible— Expenses which can be regarded as forming a direct and immediate link to the general costs connected with all the activities of that taxable person— No effect
(Council Directive 2006/112, Arts 168(a) and 176, second para.)
2.Harmonisation of fiscal legislation— Common system of value added tax— Deduction of input tax— National legislative provision, adopted on accession to the European Union, providing for the exclusion of the right to deduction for goods and services intended to be supplied free of charge or for activities outside the scope of the taxable person’s economic activity— No such national legislative provision in force prior to the accession— Interpretation of the national legislative provision by the national court— Non-application of that legislative provision in the event of incompatibility with Article176, second paragraph, of Directive 2006/112
(Council Directive 2006/112, Art. 176, second para.)
1.Article168(a) and the second paragraph of Article176 of Directive 2006/112 on the common system of value added tax (‘VAT’) must be interpreted as precluding national legislation under which a taxable person which incurs costs for transport services, work clothing, protective gear and business trips for staff working for that taxable person does not have the right to a deduction of the VAT relating to those costs on the ground that that staff is provided to it by another entity and accordingly cannot be regarded, for the purposes of that legislation, as members of the taxable person’s staff, despite the fact that those costs can be regarded as having a direct and immediate link with the general costs connected with all the economic activities of that taxable person.
(see para. 39, operative part 1)
2.The second paragraph of Article176 of Directive 2006/112 on the common system of value added tax must be interpreted as precluding a Member State, on its accession to the European Union, from introducing a limitation on the right to a deduction under a national legislative provision which provides for the exclusion from the right to a deduction of goods and services intended to be supplied free of charge or for activities outside the scope of the taxable person’s economic activity, when such an exclusion was not provided for in the national legislation in force until the date of that accession.
It is for the referring court to interpret the relevant provisions of domestic law, so far as possible, in accordance with EU law. Where such an interpretation proves impossible, the referring court is required to set aside those provisions on the ground that they are incompatible with the second paragraph of Article176 of Directive 2006/112.
(see para. 54, operative part 2)