Unjust enrichment EU VAT case law

6 cases of the Court of Justice and the General Court of the European Union on this point of VAT law, from 2008 to 2024.

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Provisions these cases interpret most

Article 135 of Directive 2006/112/EC Exemptions for other activities · 2 of these cases
Article 1 of Directive 2006/112/EC Subject matter and scope · 2 of these cases
Article 168 of Directive 2006/112/EC Origin and scope of right of deduction · 2 of these cases
Article 17 of Sixth Directive 77/388/EEC Deductions · 2 of these cases
Article 78 of Directive 2006/112/EC Supply of goods or services · 1 of these cases
Article 73 of Directive 2006/112/EC Supply of goods or services · 1 of these cases
Article 203 of Directive 2006/112/EC Persons liable for payment of VAT to the tax authorities · 1 of these cases
Article 90 of Directive 2006/112/EC Taxable amount · 1 of these cases

The 6 cases, most recent first

Under each case, what the Court decided, from its summary. The summaries are AI-generated and are not official documents: open the case for the Court’s own text.

C-741/22 Casino de Spa and Others

Judgment · 12 September 2024 · Belgium

VAT exemption for online lotteries but not other online gambling

Differentiated treatment is permissible provided objective differences (chance alone determining winners, the waiting period, stakes and odds, cultural factors) considerably influence the average consumer's choice. The identity, legal form, licence category, regulatory regime and legislative objectives of providers are irrelevant. National courts must disapply provisions incompatible with Article 135(1)(i), a constitutional court's maintenance of effects being irrelevant. Tax wrongly levied is refundable unless refund unjustly enriches the taxable person. No damages equivalent to the VAT paid on unlawful State aid grounds. Relevant to gambling operators in Member States that split the exemption by game type.

C-73/23 Chaudfontaine Loisirs

Judgment · 12 September 2024 · Belgium

VAT exemption for online gambling and the limits of national discretion

Differentiating between online non-lottery gambling and lotteries or offline gambling is compatible with Article 135(1)(i) and neutrality, provided the objective differences are liable to have a considerable influence on the average consumer's choice. That is for the national court to verify. Article 135(1)(i) has direct effect, so a constitutional court's decision to maintain the effects of annulled provisions is irrelevant and they must be disapplied. Refund of VAT levied in breach is due, unless it would unjustly enrich the taxable person. Operators of online casino and betting products in Member States that tax electronic gambling while exempting lotteries and land based play now have a harder neutrality argument. Relevant to gambling advisers and to anyone litigating retrospective effects of annulled tax legislation.

C-606/22 Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate)

Judgment · 21 March 2024 · Poland

Correcting an incorrect VAT rate where only till receipts were issued

Such a practice is precluded. VAT is automatically included in the agreed price under Article 78(a), even where the rate was wrongly determined, but that does not deprive the supplier of a right to a refund, notably where the excessive rate cost it sales volume or margin. Refusing correction solely because till receipts, not invoices, were issued breaches effectiveness where cash register memory allows accurate correction. Unjust enrichment may be invoked only if the authorities establish, by economic analysis of all relevant circumstances, that the burden was completely neutralised. Retailers and consumer facing businesses across sectors (leisure, hospitality, food) that have charged too high a rate on till receipt sales can pursue adjustment by amended return.

C-191/12 Alakor Gabonatermelő és Forgalmazó

Judgment · 16 May 2013 · Hungary

Refusal to repay VAT already covered by subsidy

The repayment principle does not preclude refusal to repay the part of the VAT that was subsidised by aid, but only if the economic burden of the deduction refusal has been completely neutralised, which the national court must verify. The test is whether the aid would have been lower had deduction been allowed. Repayment must equal the blocked VAT less any excess aid attributable to it. The source of the funding, EU or national, is irrelevant. Relevant to recipients of grant funding where national rules formerly restricted deduction on subsidised acquisitions, and to advisers running historic recovery claims in Hungary and comparable regimes.

C-566/07 Stadeco

Judgment · 18 June 2009 · Netherlands

Correcting VAT wrongly shown on an invoice

VAT mentioned on an invoice is payable in the Member State to which that VAT relates, even if the transaction is not taxable there. The referring court must identify that Member State from all relevant circumstances (rate shown, currency, language, content and context, places of establishment, conduct of the parties). Fiscal neutrality does not in principle preclude requiring a corrected invoice where the taxable person has not itself wholly and in good time eliminated the risk of revenue loss. National law may also refuse repayment causing unjust enrichment. Confirms that liability follows the VAT shown on the invoice, not the place of supply, so incorrectly domestic-style invoicing of cross-border services creates a real debt in the Member State whose VAT is stated.

C-309/06 Marks & Spencer

Judgment · 10 April 2008 · United Kingdom

Recovery of VAT wrongly charged on nationally zero-rated supplies and the unjust enrichment defence

No directly enforceable Community-law right to zero-rating arises. The derogation is optional and national. But the general principles, including fiscal neutrality, do apply and give a right to recover tax mistakenly charged. An unjust enrichment defence is permissible in itself. Restricting it to payment traders and not repayment traders offends neutrality where similar goods are marketed, and offends equal treatment absent objective justification. Whether the trader suffered loss is irrelevant. The national court must remedy the discrimination, in principle by full repayment. Confirms that national derogatory zero rates and reduced rates sit inside the Community-law framework for repayment purposes, so taxpayers challenging misclassification can invoke neutrality and equal treatment even though the rate itself is purely domestic. Relevant to food, retail and any sector relying on legacy zero rates.