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24.10.2009   

EN

Official Journal of the European Union

C 256/12

Action brought on 4 August 2009 — Commission of the European Communities v Republic of Poland

(Case C-311/09)

2009/C 256/23

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

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declare that, by charging VAT for the supply of international road transport services by taxable persons having their seat or permanent place of residence outside Poland in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004, the Republic of Poland has failed to fulfil its obligations under Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

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order the Republic of Poland to pay the costs.

Pleas in law and main arguments

International road transport services are liable to value added tax under the principles defined in Directive 2006/112.

In the Commission’s submission, to charge and calculate VAT on international road transport services supplied by taxable persons having their seat or permanent place of residence outside Poland in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004 is incompatible with Articles 73, 168 and 273 of Directive 2006/112. The incompatibility with Article 73 of Directive 2006/112 consists in the fact that in every case the taxable amount is PLN 285, taking account neither of the actual distance covered in Poland by bus nor of the actual payment due for a particular service supplied. The Polish system for collection of VAT does not allow a taxable person supplying international passenger transport services to deduct the VAT on goods acquired during a given tax period for the purposes of the taxed passenger service supplied (for example on fuel), which is contrary to Article 168 of Directive 2006/112. Furthermore, the Polish system for collection of the VAT is incompatible with Article 273 of the directive because it establishes an obligation for taxable persons to submit a return showing the amount of tax to the customs office at the time when the bus carrying passengers enters Poland and to pay that tax at the customs office ‘as of the moment when the bus carrying passengers enters national territory’, which gives rise to formalities connected with the crossing of frontiers.

In the Commission’s submission, the contested system for collecting and calculating VAT cannot be based on Article 281 or Article 395 of Directive 2006/112.

(1)  OJ 2006 L 347, p. 1.