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3.4.2017   

EN

Official Journal of the European Union

C 104/34

Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 13 January 2017 — TGE Gas Engineering GmbH — Sucursal em Portugal v Autoridade Tributária e Aduaneira

(Case C-16/17)

(2017/C 104/49)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: TGE Gas Engineering GmbH — Sucursal em Portugal

Defendant: Autoridade Tributária e Aduaneira

Questions referred

Must Articles 44, 45, 132(1)(f), 167, 168, 169, 178, 179 and 192a, 193, 194 and 196 of the VAT Directive (Directive 2006/112), (1) Articles 10 and 11 of Implementing Regulation (EU) No 282/2011 (2) and the principle of neutrality be interpreted as meaning that they preclude the Portuguese tax authorities from refusing the right to deduction of VAT by a branch of a German company, in circumstances where:

—

the German company obtained a tax identification number in Portugal to carry out an isolated act, namely ‘acquisition of shares’, corresponding to a non-resident entity without a permanent establishment;

—

subsequently, the branch of that German company was registered in Portugal and was assigned its own tax number, as a permanent establishment of that company;

—

later, the German company, using the first identification number, entered into a contract with another company to establish an economic interest group (ACE) to carry out a works contract in Portugal;

—

subsequently, the branch, using its own tax number, entered into a subcontract with the ACE, setting out the reciprocal services between the branch and the ACE and agreeing that the latter would invoice the subcontractors, in the agreed proportions, for the costs which it incurred;

—

the ACE indicated the branch’s tax identification number in the debit notes it issued to invoice costs to that branch, and charged VAT;

—

the branch deducted the VAT charged in the debit notes;

—

the transactions of the ACE (by way of subcontracting) consist of the transactions of the branch and of the other company forming part of the ACE, these latter having invoiced to the ACE the entire revenue that the ACE invoiced to the developer?

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ 2006 L 347, p. 1.

(2)  Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax

OJ 2011 L 77, p. 1.