Brussels, 29 October 2009
VAT: Commission launches infringement proceedings against Poland concerning the refund of VAT to non-established taxable persons
The European Commission has requested that Poland change its administrative practice concerning the refund of VAT to taxable persons established in another EU Member State. This request takes the form of a reasoned opinion (second step of the infringement procedure provided for in Article 226 of the EC Treaty). If the administrative practice is not amended within two months in order to comply with the reasoned opinion, the Commission may decide to refer the matter to the European Court of Justice.
A taxable person who is charged VAT in a Member State other than that where he is established is entitled to recover that VAT according to the 8th VAT Directive, which provides that:
(i) the taxable person is entitled to claim the VAT refund from the tax authorities of the Member State where it was charged;
(ii) the refund must be made within six months from the date when the application, accompanied by all the relevant documents, was submitted to the competent authority.
The aforementioned provisions of the 8th VAT Directive have been transposed into Polish law. However, the Commission (after receiving numerous complaints and seeking information from the Polish authorities by means of a letter of formal notice) has reached the conclusion that refunds to taxable persons not established in Poland are taking, in a large number of cases, longer than the prescribed period. It is settled case-law that, by disregarding the six-month time-limit for the refund of VAT to non established taxable persons, a Member State is in breach of its obligations under the 8th VAT Directive, irrespective of whether the breach arises from the national legislation or from the administrative practice followed in the Member State.
The period granted by the Polish authorities to amend any formal defects of the request for a refund is seven days and, in case corrections are not filed within this deadline, the right to refund is lost. The Commission takes the view that such a short period is likely to render impossible or excessively difficult the timely correction of the defects detected, thus undermining the effectiveness of the right to a refund granted to non established taxable persons by the 8th VAT Directive.
For these reasons, the Commission has formally requested Poland to change its administrative practice in this field by means of a reasoned opinion.
The Commission's reference number is 2005/5093.
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