The Court of Justice of the European Union (CJEU) delivered its judgment in the Sea Chefs Cruise case on 02 May 2019, which we are following.
CJUE, Case C-133/18, Sea Chefs Cruise Services GmbH, 2 May 2019
Background to the case
The company Sea Chefs Cruise, subject to VAT in Germany, made an online VAT refund request, pursuant to the procedure specified in Directive 2008/9/EC of the Council of 12 February 2008.
Using the option under Article 20 of this Directive, transposed into Article 242-0 W of Annex II of France’s General Tax Code, French tax authorities sent an electronic request for additional information to the company, in order to process the refund request.
Having not received a reply within one month, the period provided for under legal provisions, the authorities rejected the refund request made by the company.
After the case was referred to the Council of State (Council of State (CE), decision 8th and 3rd ch. 18 October 2017, no. 412016 and 412053) which ruled on the question of burden of proof concerning electronic sending and receiving of a request for additional information, the Montreuil administrative court again ruled on a stay of proceedings while it put several questions to the CJEU regarding the consequences of failure to reply within the one month period provided for under the abovementioned provisions (Montreuil administrative court (TA), 14 February 2018, no. 1602615).
More specifically, it was for the court to decide, due to the absence of stipulations within the Directive, if the period of one month, provided for under II of Article 242-0 W of Annex II of France’s General Tax Code (Directive 2008/9/EC article 20 point 2) for responding to a request for additional information made by the tax authorities, should be regarded as an estoppel period, authorising the refunding member state to refuse said VAT refund should no reply be received within said period.
The CJEU’s decision
The CJEU ruled, in accordance with the principles of proportionality and neutrality, that the one month period in which the taxable person should reply to the request for additional information is not an estoppel period. The taxable person may, therefore, regularise their positions after this period by bringing said requested information before the judge.
The CJEU's decision highlights the flexibility in interpreting procedural rules regarding VAT refunds for foreign companies. This decision may allow companies who are refused a refund to submit a new request, subject to providing the information requested by the refunding member state.
Please do not hesitate to contact your usual advisors to draw up a strategy that is tailored to your situation.
Find more about our law firm:
Our law firm is a leading international business law firm. It is ranked as the third-largest French law firm by revenue. Its deep roots, unique positioning and highly recognised expertise enables it to deliver innovative, high value-added solutions in tax, business, corporate and labour law.