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8.12.2012   

EN

Official Journal of the European Union

C 379/15

Reference for a preliminary ruling from the Curtea de Apel Oradea (Romania) lodged on 18 September 2012 — SC Fatorie SRL v Direcția Generală a Finanțelor Publice Bihor

(Case C-424/12)

2012/C 379/25

Language of the case: Romanian

Referring court

Curtea de Apel Oradea

Parties to the main proceedings

Applicant: SC Fatorie SRL

Defendant: Direcția Generală a Finanțelor Publice Bihor

Questions referred

1.

Do the provisions of Directive 2006/112/EC (1) allow the penalty of loss of the right to deduct to be applied to a taxable person, when:

(i)

the invoice produced by the taxable person for the purpose of exercising his right to deduct was incorrectly drawn up by a third party, failing to apply the simplification measures;

(ii)

the taxable person has paid the VAT indicated in the invoice?

2.

Does the European law principle of legal certainty militate against the administrative practice of the Romanian tax authorities that have:

(i)

first, by irrevocable administrative decision, acknowledged the right to deduct VAT;

(ii)

then reversed that decision, and made the taxable person liable to pay into the State budget the VAT for which the right to deduct was originally exercised, and to pay interest and default interest?

3.

Does the principle of the fiscal neutrality of VAT permit a taxable person to be deprived of the right to deduct VAT, in circumstances in which:

(i)

the taxable person has paid the VAT incorrectly indicated in the invoice by a third party;

(ii)

the tax authorities have taken no active steps to request the third party to put right the incorrectly worded invoice;

(iii)

at present, as a result of the third party’s insolvency, it is impossible for the invoice to be corrected?

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).