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CJEU Case C-189/18/ Opinion

Glencore Agriculture Hungary Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:

Key facts of the case:

Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary)

Common system of value added tax — Directive 2006/112/EC — Article 167 — Article 168 — Right of deduction — Tax evasion or fraud — National procedures — Burden of proof — Access to the file — Right of defence — Equality of arms — Judicial review

Outcome of the case:

I propose that the Court answer the question referred for a preliminary ruling by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows:

– The provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, interpreted in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, do not preclude a provision or practice of a Member State according to which, when verifying the right of a taxable person to deduct value added tax (VAT), the tax administration is to take into account the findings that it has made in related decisions which have become final, provided that:

  • such a provision or practice, while respecting the logic and structure of the VAT system, does not prevent the tax authorities, de jure or de facto, from reaching different conclusions, in the context of different procedures, when presented with new arguments or new evidence;
  • the tax authorities are, in principle, required to grant access, before the adoption of their final decision, to all documents which are relevant for the exercise of the taxable person’s rights of defence, including those that have been collected in the context of related administrative or criminal procedures. A description of the evidence in the form of a summary report does not suffice, unless the taxable person is able to request an examination and, possibly, a copy of the specific documents;
  • the national court hearing an action against a decision adopted by the tax authorities is able to review all elements of fact and of law in that decision, including the lawfulness of the manner in which the evidence was collected, irrespective of the origin of such evidence.