On 14 January 2020 Advocate General HOGAN gave its opinion in case C-19/19 (Pantochim SA). The case deals with the question whether a tax claim held by Pantochim in respect of the Belgian State can be set off against a VAT claim of Germany against the same company.
Reference for a preliminary ruling – Directive 76/308/EEC Mutual assistance for the recovery of claims – Directive 2008/55/EC – Articles 6 and 10 – Directive 2010/24/EU – Article 13(1) – Set-off of tax claim recovered on behalf of requesting Member State against tax debt of requested Member State – Status of recovered claim – Interpretation of term ‘privilege’
Opinion
The A-G is of the opinion that:
The first subparagraph of Article 13(1) of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures which provides that ‘any claim in respect of which a request for recovery has been made shall be treated as if it was a claim of the requested Member State’ must be interpreted as meaning that the latter Member State is required to make use of the powers and procedures provided for under the laws, regulations or administrative provisions applying to claims concerning identical or similar taxes or duties in its legal system. The first and third subparagraphs of Article 13(1) of Directive 2010/24 must be interpreted as meaning that the claim of the requesting Member State does not, however, acquire the status of a substantive claim of the requested Member State.
The term ‘preferences’ in the third subparagraph of Article 13(1) of Directive 2010/24, refers to any mechanism which, in the event of concurrent claims, results in the preferential payment of the claim of the requested Member State. This would include, but is not limited to, preferential or priority rights granted to the claims of the requested Member State in respect of the order or ranking of their payment having regard to that Member State’s insolvency system. The requested Member State may — but it is not required to — grant such preferential or priority rights in respect of the claims of the requesting Member States.
The general power to set off reciprocal or mutual claims under national law is part of the powers and procedures available under national law for the recovery not only of the claims of the requested Member State but also for the claims of other creditors where reciprocal or mutual claims exist and falls, in principle, under the first subparagraph of Article 13(1) of Directive 2010/24.
A mechanism which merely simplifies the recovery procedure and does not grant preferential or priority rights in respect of the order or ranking of the payment of the claims of the requested Member State falls within the powers and procedures referred to in the first subparagraph of Article 13(1) of Directive 2010/24.
The third subparagraph of Article 13(1) of Directive 2010/24 does not alter the status or result in the transfer of the requesting Member State’s claim to the requested Member State. In the light of the objective of Directive 2010/24, which is to ensure, inter alia, that the requested Member State assists the requesting Member State in the recovery of the latter’s claims, the grant of preferences under the third subparagraph of Article 13(1) of Directive 2010/24 must operate for the benefit, rather than to the detriment, of the requesting Member State.
Source:
