ECLI:EU:C:2026:748

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OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 10 September 2026 (1)

Case C‑167/26 RX

I. S.A.

Dyrektor Krajowej Informacji Skarbowej

( Review – Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Right to deduct input tax – Articles 167, 168(a), 178(a) and 179 of Directive 2006/112/EC – Issuing of the invoice showing the VAT during the tax period following that in respect of which the right of deduction is exercised – Principles of fiscal neutrality and proportionality – Effect on the unity and consistency of EU law )

I. Introduction

1. The present case is the second in which the Court of Justice has initiated review proceedings under the third subparagraph of Article 256(3) TFEU against a judgment given by the General Court of the European Union by way of a preliminary ruling, (2) namely the judgment in Dyrektor Krajowej Informacji Skarbowej (3) (also ‘the judgment under review’ or ‘the judgment of the General Court’).

2. That judgment of the General Court, which concerns the field of indirect taxation, deals with a key element of the European value added tax (VAT) system, namely the right to deduct input tax. In interpreting certain provisions of Directive 2006/112/EC (4) (‘the VAT Directive’) and certain general principles of law, the General Court has – probably without even realising it – departed from the case-law of the Court of Justice as laid down, in particular, in the judgment in Terra Baubedarf-Handel (5) and, most recently, in the judgment in Aptiv Services Hungary. (6)

3. The divergence in case-law between the General Court and the Court of Justice concerns, in essence, the determination of the correct period in respect of which the taxable person is meant to exercise his or her right to deduct input tax, where the invoice specifying the amount of that VAT is received by him or her after the period during which the taxable transaction took place.

4. Although it may seem rather technical at first sight, this issue is of great importance for the proper functioning of the common system of VAT, since the correct application of the right to deduct plays a leading role in the everyday practice of undertakings operating in the internal market of the European Union. It is therefore important to provide a solution which is practicable without major difficulties or uncertainties.

5. Going well beyond that issue of VAT in the strict sense, the present case will also provide an opportunity to lay the foundations for the proper functioning of the review mechanism which, exceptionally, allows the Court of Justice to review and, where necessary, correct the preliminary rulings of the General Court.

II. Legal framework

A. European Union law

6. Article 63 of the VAT Directive provides:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

7. Title X of the VAT Directive, concerning deductions, includes Chapter 1, entitled ‘Origin and scope of right of deduction’, which is composed of Articles 167 to 172 of that directive. Article 167 of that directive provides:

‘A right of deduction shall arise at the time the deductible tax becomes chargeable.’

8. Article 168 of the VAT Directive provides:

‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:

(a) the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person;

…’

9. Chapter 4 of Title X of the VAT Directive, entitled ‘Rules governing exercise of the right of deduction’, contains Articles 178 to 183 of that directive. Under Article 178 of that directive:

‘In order to exercise the right of deduction, a taxable person must meet the following conditions:

(a) for the purposes of deductions pursuant to Article 168(a), in respect of the supply of goods or services, he must hold an invoice drawn up in accordance with Sections 3 to 6 of Chapter 3 of Title XI;

…’

10. The first subparagraph of Article 179 of the VAT Directive provides:

‘The taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178.’

11. Article 180 of that directive provides:

‘Member States may authorise a taxable person to make a deduction which he has not made in accordance with Articles 178 and 179.’

12. Article 182 of that directive is worded as follows:

‘Member States shall determine the conditions and detailed rules for applying Articles 180 and 181.’

13. Article 184 of that directive reads as follows:

‘The initial deduction shall be adjusted where it is higher or lower than that to which the taxable person was entitled.’

14. Under Article 185(1) of the VAT Directive:

‘Adjustment shall, in particular, be made where, after the VAT return is made, some change occurs in the factors used to determine the amount to be deducted, for example where purchases are cancelled or price reductions are obtained.’

15. Title XI of the VAT Directive, concerning the obligations of taxable persons and certain non-taxable persons, includes Chapter 5, entitled ‘Returns’, which is composed of Articles 250 to 261 of that directive. Article 250(1) of that directive provides:

‘Every taxable person shall submit a VAT return setting out all the information needed to calculate the tax that has become chargeable and the deductions to be made including, in so far as is necessary for the establishment of the basis of assessment, the total value of the transactions relating to such tax and deductions and the value of any exempt transactions.’

16. Finally, the first subparagraph of Article 273 of the VAT Directive provides:

‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

B. Polish law

17. Article 86(1) of the ustawa o podatku od towarów i usług (Law on tax on goods and services) of 11 March 2004 (Dz. U. of 2018, item 2174), as amended (‘the Law on VAT’), provides:

‘In so far as goods and services are used to conduct taxable transactions, a taxable person within the meaning of Article 15 shall have the right to deduct the amount of input tax from the amount of tax due, subject to Article 114, Article 119(4), Article 120(17) and (19) and Article 124.’

18. According to Article 86(10) of the Law on VAT:

‘The right to deduct the amount of input tax from the amount of tax due shall arise when the tax is settled for the period in which the tax liability arose in relation to the goods and services acquired or imported by the taxable person.’

19. Article 86(10b) of the Law on VAT states:

‘The right to deduct the amount of input tax from the amount of tax due in the cases referred to in:

(1) paragraph 2(1) and (2)(a) – shall arise no earlier than when the tax is settled for the period during which the taxable person received the invoice or customs document;

…’

III. Background

A. The dispute in the main proceedings and the question referred for a preliminary ruling

20. I., a company subject to VAT in Poland, operates a clearing and settlement house for transactions carried out by its members, inter alia concerning gas and electricity. In the course of its activities, it is regarded as the purchaser and reseller of goods involved in stock exchange transactions and appears as such on the invoices. It is therefore obliged to pay input and output VAT.

21. I. submitted a request to the tax authority for a tax ruling relating to the following factual situation. It receives invoices documenting the purchase of goods during the tax period following the tax period in which those goods were supplied, but before the deadline for submitting the tax return relating to that latter period.

22. I. therefore asked the tax authority whether, in such a case, it could, pursuant to Article 86(1) and (10) of the Law on VAT, deduct the input tax shown on the invoices duly drawn up for the purchase of gas and electricity when the tax is settled for the period in which the tax liability arose in relation to the goods purchased, even though the invoices were not received until after that period.

23. In an advance tax ruling of 12 November 2019, the tax authority found that the exercise of the right of deduction was subject, both under Polish law and under EU law, to the satisfaction of formal conditions, inter alia, the receipt of an invoice. According to the tax authority, those conditions did not, however, deprive the taxable person of the right to deduct input VAT and thus did not infringe the principle of VAT neutrality.

24. Hearing an action against that advance tax ruling, the Wojewódzki Sąd Administracyjny w Warszawie (Provincial Administrative Court, Warsaw, Poland), by judgment of 9 October 2020, dismissed I.’s claims, holding, inter alia, that although the right to deduct already arises in relation to the period during which the tax liability arose in respect of the goods and services acquired, the exercise of that right requires that an invoice be held. The time at which the right to deduct input tax arises, provided for in Article 167 of the VAT Directive, is thus modified in practice by the formal condition laid down in Article 178(a) of that directive, consisting in the holding of the corresponding invoice. According to that court, it follows that the right to deduct input tax arises, subject to the other conditions being satisfied, at the time that invoice is received.

25. I. brought an appeal on a point of law against the judgment of 9 October 2020 before the Naczelny Sąd Administracyjny (Supreme Administrative Court), which is the referring court, alleging, in particular, a misinterpretation of Articles 167, 168(a) and 178(a) of the VAT Directive.

26. The referring court considers that the holding of an invoice is a condition not for the origin of the right of deduction but for its exercise, which derives from the submission of a tax return. It therefore questions whether Article 86(10b)(1) of the Law on VAT, in so far as it makes the origin of the right of deduction conditional upon the holding of an invoice or customs document on the date when the tax is settled, is consistent with Articles 167, 168(a) and 178(a) of the VAT Directive.

27. According to that court, in the present case, the effect of applying Article 86(10b)(1) of the Law on VAT is that the right of deduction is delayed. It notes that, following the acquisition of goods or services, the purchaser is obliged to wait until such time as an invoice is received in order for his or her right to deduct to arise and therefore to be able to exercise that right to deduct, whereas the seller, for his or her part, has already paid the VAT due to the State budget.

28. That court considers that, in accordance with EU law, it must be possible to deduct input tax for a given tax period where the right to deduct arose during that period and where, moreover, the taxable person holds an invoice or customs document at the time that he or she exercises that right in the return which he or she submits for that period. According to that court, such an interpretation allows the taxable person to exercise his or her right to deduct input tax without undue delay, and without creating a risk of abuse. It explains that a deferral of the deduction of VAT may directly affect whether there is an infringement of the principle of neutrality and is not directly supported by the wording of the VAT Directive.

29. In those circumstances the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice of the European Union for a preliminary ruling:

‘Must Articles 167, 168(a) and 178(a) of [the VAT Directive] and the principles of fiscal neutrality, effectiveness and proportionality be interpreted as precluding a provision of national law, such as Article 86(10b)(1) of [the Law on VAT], under which a taxable person may not assert [his or her] right to deduct input tax in a return submitted for a period in which [he or she satisfied] the substantive conditions for exercising that right if, during that period, he or she had not yet received an invoice, even though [he or she] did receive the invoice before submitting the return?’

B. Preliminary ruling procedure before the General Court and the judgment under review

30. In accordance with the third subparagraph of Article 50b of the Statute of the Court of Justice of the European Union (the ‘Statute’), the present case was transferred to the General Court for the purposes of the preliminary ruling procedure and the judgment.

31. In the judgment under review, which was delivered following a written preliminary ruling procedure and a hearing, but without an Opinion of an Advocate General, the General Court ruled as follows:

‘Article 167, Article 168(a) and Article 178(a) of [the VAT Directive] and the principles of value added tax (VAT) neutrality and of proportionality:

must be interpreted as precluding national legislation under which a taxable person may not assert his or her right to deduct input tax in a return submitted for a period in which he or she satisfied the substantive conditions for exercising that right if, during that period, he or she had not yet received the corresponding invoice, even though he or she did receive the invoice before submitting the return.’ (7)

IV. Review procedure before the Court

32. On a proposal from the First Advocate General, the Reviewing Chamber of the Court of Justice decided, on 26 March 2026, to initiate review proceedings in respect of the judgment of the General Court (third subparagraph of Article 256(3) TFEU and Articles 62 and 62a of the Statute, read in conjunction with Article 194(5) of the Rules of Procedure of the Court of Justice). (8)

33. According to that decision, the review concerns the question whether, having regard, in particular, to the judgments in Terra Baubedarf-Handel (9) and Aptiv Services Hungary, (10) the judgment of the General Court affects the unity or consistency of EU law in that the General Court held that Articles 167, 168(a) and 178(a) of the VAT Directive and the principle of VAT neutrality and the principle of proportionality must be interpreted as precluding national legislation under which a taxable person may not assert his or her right to deduct input tax in a return submitted for a period in which he or she satisfied the substantive conditions for exercising that right if, during that period, he or she had not yet received the corresponding invoice, even though he or she did receive the invoice before submitting the return.

34. In the review proceedings before the Court, written observations were submitted by I., the Polish, Czech and German Governments and the European Commission.

V. Analysis

35. Review proceedings initiated by the Court of Justice under Article 256(2) or (3) TFEU may, in theory, lead to three different outcomes:

– First, the Court may find, at the end of the review proceedings, that the decision of the General Court is not vitiated by any error of law. A thorough analysis may invalidate the initial and summary assessment that the General Court’s reasoning contained an error of law giving rise to a risk of the unity or consistency of EU law being affected. The decision of the General Court then becomes final.

– Secondly, the Court of Justice may find that the General Court has committed an error of law, whilst concluding that that error is not sufficiently serious as to affect the unity or consistency of EU law. In that case too, the decision of the General Court becomes final, and it will be for subsequent case-law to qualify or develop the underlying reasoning, where appropriate.

– Thirdly and finally, the Court of Justice may conclude that the decision of the General Court contains an error of law whose scope or consequences are such that the unity or consistency of EU law is indeed affected, which has the effects set out in Article 62b of the Statute of the Court of Justice, namely, depending on the circumstances, the setting aside of the General Court’s decision in the event of a review of an appeal case or the formulation of a new answer to the referring court’s questions in the event of a review of a preliminary ruling case.

36. In each of the review proceedings decided by the Court of Justice to date (11) – all based on the second subparagraph of Article 256(2) TFEU and regarding decisions of the General Court relating to appeals concerning the European civil service – it is the third of those possible outcomes which has prevailed: the Court of Justice has, without exception, found both an error of law and an adverse effect on the unity and consistency of EU law.

37. As regards the present review proceedings, based on the third subparagraph of Article 256(3) TFEU, I am going to analyse, first of all, whether the judgment under review is vitiated by an error of law with regard to the rules and principles of EU law applicable to the exercise of the right to deduct input VAT (Section A below), before assessing whether that possible error affects the unity or consistency of EU law (Section B below).

38. From the outset, it may be noted that the parties and interested parties which participated in the review proceedings are divided: whilst the Polish, Czech and German Governments submit that the judgment of the General Court is erroneous and does indeed affect the unity and consistency of EU law, I. and the Commission are of the opposite view, arguing, in essence, that that judgment is actually in keeping with the relevant case-law.

A. Error of law vitiating the judgment under review

39. When a taxable person for the purposes of VAT is exercising his or her right to deduct input tax, three periods may be distinguished:

– first, the period during which the right to deduct arose;

– secondly, the period during which the taxable person takes the administrative steps necessary to exercise that right; and

– thirdly, the period in respect of which that right is exercised – in other words, the period to which the amount of deductible tax is attributed.

Those periods often, but not necessarily always, coincide, as is indeed illustrated by the facts of the dispute in the main proceedings and by the facts underlying some of the judgments which will be referred to below.

40. The heart of the problem before the EU courts in the present case is correctly determining the third of the periods referred to in the preceding paragraph, that is to say, the period in respect of which the right to deduct input VAT is exercised: it is necessary to assess whether that right to deduct must be exercised in respect of the period during which the taxable transactions were carried out or in respect of a subsequent period, namely that during which the taxable person receives the invoices relating to those transactions, if those two periods do not coincide.

41. It is true that the relevant provisions of the VAT Directive for determining the period in respect of which the right of deduction arises are not free from ambiguity. It follows from the combined provisions of Articles 167 and 63 of the VAT Directive that the right of deduction of input tax arises at the time when the deductible tax becomes chargeable, that is to say when the goods are delivered or the services are performed. (12) Moreover, under Article 179 of that directive, ‘the taxable person shall make the deduction by subtracting from the total amount of VAT due for a given tax period the total amount of VAT in respect of which, during the same period, the right of deduction has arisen and is exercised in accordance with Article 178 [of that directive].’ Finally, in order for the taxable person to be able effectively to exercise his or her right of deduction, Article 178(a) of the VAT Directive requires that the taxable person hold an invoice drawn up in accordance with the provisions of Sections 3 to 6 of Chapter 3 of Title XI of that directive.

42. In the light of that situation, and whilst acknowledging that the right to deduct input tax is subject to compliance with both material and formal requirements or conditions laid down by the VAT Directive, (13) the General Court noted, in the judgment under review, that the origin of the right of deduction could be made subject only to the substantive conditions laid down in the VAT Directive and that the right of deduction therefore arose independently of the holding of an invoice, since the latter amounts to only a formal condition for the exercise of that right. (14) On that basis, the General Court subsequently concluded that Articles 167, 168(a) and 178(a) of the VAT Directive and the principles of VAT neutrality and proportionality precluded national legislation, such as that at issue in the main proceedings, under which a taxable person may not assert his or her right to deduct input tax in a return submitted for a period in which he or she satisfied the substantive conditions for exercising that right if, during that period, he or she had not yet received the corresponding invoice, even though he or she did receive the invoice before submitting the return. (15)

43. In so doing, however, the General Court departed from the relevant and settled case-law of the Court, in particular the judgment in Terra Baubedarf-Handel, (16) which holds, on the basis of the first subparagraph of Article 18(2) of the Sixth Directive 77/388/EEC (17) – to which the first subparagraph of Article 179 of the VAT Directive now corresponds – that the right to deduct input tax must be made in respect of the tax period in which the two conditions required are satisfied, namely that the goods have been delivered or the services performed and that the taxable person is in possession of the relevant invoice (or an equivalent document). (18)

44. As the Court of Justice explained in that judgment, (19) the requirement that the right to deduct input VAT be exercised in respect of the period during which not only the substantive conditions for that right to arise but also the formal condition of being in possession of an invoice are satisfied is consistent with the aim of ensuring the effective collection and supervision of VAT; that requirement takes account of the fact that payment for the taxable transaction and therefore payment of the deductible input VAT is not normally made until the invoice has been received.

45. The interpretation adopted in the judgment in Terra Baubedarf-Handel was subsequently confirmed in the judgments in Senatex (20) and in A. (Exercise of the right of deduction), (21) as well as, very recently, in the judgment in Aptiv Services Hungary, (22) on the basis of somewhat different factual and procedural circumstances respectively.

46. Although the judgment in Aptiv Services Hungary was delivered after the judgment under review, it only confirms what the other judgments cited above, starting with the judgment in Terra Baubedarf-Handel, had already recognised. In any event, preliminary rulings delivered by the Court of Justice merely clarify and define, where required, the meaning and scope of a rule of EU law as it must be, or ought to have been, understood and applied from the time of its coming into force, (23) namely, in this case, the first subparagraph of Article 179 of the VAT Directive (formerly the first subparagraph of Article 18(2) of the Sixth Directive 77/388).

47. There is therefore, with regard to the first subparagraph of Article 179 of the VAT Directive, a clear divergence between the judgment of the General Court and the case-law of the Court, a divergence which may be summarised as follows: the period in respect of which the right to deduct input tax must be exercised is not the same, depending on whether one follows the General Court or the Court of Justice. The General Court, in the judgment under review, considers that the right to deduct must always be exercised in respect of the period in which the supply of goods or services took place, regardless of when the taxable person receives the invoice specifying the amount of VAT concerned. By contrast, according to the Court of Justice, the taxable person’s right to deduct must be exercised in respect of the period during which he or she actually received that invoice (or an equivalent document), even if that period is subsequent to the period during which the taxable transaction took place.

The distinction drawn by the General Court between the present case and the case which gave rise to the judgment in Terra Baubedarf-Handel

48. In the judgment under review, the General Court seeks to justify its departure from the judgment in Terra Baubedarf-Handel (24) by drawing a distinction between the facts of the case which gave rise to that judgment and those of the present case. According to the General Court, the judgment in Terra Baubedarf-Handel ‘is explained by the fact that, in the case which gave rise to that judgment, the applicant in the main proceedings did not hold an invoice … at the time when it exercised the right to deduct VAT’. (25)

49. However, that assertion by the General Court (26) is incorrect. As is unequivocally clear from the judgment in Terra Baubedarf-Handel itself, the applicant in the case which gave rise to that judgment had ‘obtained supplies of services in 1999’, and ‘the invoices relating to those services, although drawn up in December 1999, were not received by it until January 2000’. (27)

50. On closer inspection, and contrary to the General Court’s finding in the judgment under review, the facts underlying the Terra Baubedarf-Handel case and those relevant to the present case are therefore entirely comparable: both cases are characterised specifically by the fact that the taxable persons were actually in possession of the invoices necessary to exercise their right to deduct input tax, those invoices having simply been received during a period other than – and subsequent to – that in which the taxable transactions took place.

51. The General Court was therefore wrong, in my view, to have distinguished the facts of the present case from those underlying the judgment in Terra Baubedarf-Handel and thereby, albeit unknowingly, to have departed from the rule in Terra Baubedarf-Handel.

The other arguments put forward by the General Court in support of its solution

52. As regards the (other) arguments put forward by the General Court in support of the solution adopted in the judgment under review, nor do these appear relevant in my view.

53. First, the General Court relies on certain judgments of the Court of Justice (28) according to which the deduction of input tax must be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some formal requirements. (29) The General Court infers from this that ‘the origin of the right of deduction may be made subject only to the substantive conditions laid down in the VAT Directive’. (30) It further states that ‘the right of deduction therefore arises independently of the holding of an invoice, which amounts to only a formal condition for the exercise of that right’. (31)

54. Whilst it is true that the Court of Justice, in the judgments relied on by the General Court, has shown tolerance as regards compliance with certain formalities in the field of VAT, it must be noted that it has never waived the fundamental condition of possession of an invoice (or equivalent document) complying with the legal requirements, at the time when the right to deduct input tax is exercised, as is, moreover, expressly required by Article 178(a) of the VAT Directive. In my view, there has been no evolution in the case-law in that regard.

55. Moreover, it seems unconvincing, not to say contradictory, to accept that the right to deduct input tax depends on both substantive and formal conditions, whilst ultimately stating that only the fulfilment of the substantive conditions is truly decisive.

56. In actual fact, both the substantive conditions and the formal conditions are of some importance for the right to deduct input tax, since the substantive conditions make it possible to identify the point in time at which the right of deduction arose, whilst the formal conditions (and in particular the holding of an invoice complying with the legal requirements) determine the point in time from which that right of deduction may be exercised. However, neither the substantive conditions nor the formal conditions are, in themselves, sufficient to identify precisely the period in respect of which the right of deduction must be exercised. According to the case-law of the Court of Justice, and in particular the judgments in Terra Baubedarf-Handel, (32) in Senatex, (33) in A. (Exercise of the right of deduction) (34) and in Aptiv Services Hungary, (35) the period in respect of which the right of deduction is exercised is specifically that during which both the substantive conditions and the formal conditions are satisfied for the first time. Accordingly, if the invoice is received during a period subsequent to that in which the taxable transaction took place, it is in respect of that subsequent period that the right to deduct input tax must be exercised.

57. Secondly, according to the General Court, the period during which the right to deduct input tax arises ‘must coincide with the period in which the right of deduction is exercised’, so as to prevent the taxable person from ‘temporarily bear[ing] the burden of VAT, with the result that he or she is not relieved entirely of the burden of that tax, in breach of the principles of VAT neutrality and proportionality, and of the immediate character of the deduction of input VAT paid’. (36)

58. Nor is that line of argument convincing. As the Court of Justice specifically explained in the judgment in Terra Baubedarf-Handel, (37) ‘in principle, taxable persons do not make payment and therefore do not pay input VAT until they have received an invoice …’. The Court went on to add: ‘the VAT cannot be regarded as being chargeable on a given transaction before it has been paid’. In those circumstances, there is no objective reason to apply the exercise of the right to deduct input tax retroactively to a period prior to that during which the taxable person received the corresponding invoice.

59. Even assuming that a taxable person might, in certain circumstances, be required to pay a down payment to his or her supplier before receiving the goods or services contracted for, he or she will normally do so only on the basis of having a down-payment invoice or an equivalent document setting out the exact amount of VAT included in such a payment.

60. Thirdly and finally, the General Court seeks to base its solution on the judgment in Senatex, in which the Court of Justice held that, for the purposes of the right to deduct input tax, the correction of certain details which must be mentioned on an invoice has retroactive effect to the moment when the original invoice was drawn up. (38) According to the General Court, ‘while a taxable person may, following a correction of the corresponding invoice, exercise his or her right of deduction in respect of the tax period during which that invoice was originally drawn up, despite the lack of an invoice in proper form at the time of the original tax return, such considerations apply even more so to a taxable person who provides an invoice in proper form when submitting that return’. (39)

61. In my view, that rule in Senatex, relied on by the General Court, actually supports the opposite conclusion. Although the Court of Justice held, in the judgment in Senatex, that the correction of certain details which must be mentioned on an invoice had retroactive effect to the moment when the original invoice was issued, this appears to me to confirm that the period in respect of which the right to deduct input tax is exercised is indeed that during which the taxable person first had an invoice in his or her possession, even if it was incorrect or imprecise in terms of certain details which must be mentioned, that is to say, the period during which both the substantive conditions and the formal conditions for the right to deduct were satisfied for the first time, within the meaning of the rule in Terra Baubedarf-Handel.

Practical arguments in favour of retaining the rule in Terra Baubedarf-Handel

62. I should like to add that there are important considerations of a practical nature and relating to legal certainty which also support retaining, or even confirming, the rule in Terra Baubedarf-Handel. (40)

63. As has already been explained above, (41) under that case-law, the period in respect of which the right to deduct input tax is exercised is always the period during which both the substantive conditions and the formal conditions are satisfied for the first time. If the invoice is received during a period subsequent to that in which the taxable transaction took place, it is in respect of that subsequent period that the right to deduct input tax must be exercised.

64. That solution has the great advantage of being easy to apply and, above all, of ensuring that the period during which the taxable person actually pays input VAT always coincides with the period in respect of which he or she exercises his or her right of deduction, in full compliance with the fundamental principle of VAT neutrality.

65. By contrast, the solution adopted by the General Court in the judgment under review appears significantly more complex and, above all, likely to create a real risk of inconsistency between the two relevant events, namely the payment of input VAT and its deduction, since the General Court emphasises that the right of deduction must be exercised in respect of the period during which the taxable transaction took place, even though the receipt of the invoice and thus the actual payment of input VAT may occur within a subsequent period, as was indeed the case in the main proceedings. Such inconsistency, inherent in the solution adopted by the General Court, seems to me to be difficult to reconcile with the principle of VAT neutrality.

66. Moreover, the solution adopted by the General Court in the judgment under review runs the risk of making the effective exercise of the right to deduct input tax excessively complicated and dependent on the vagaries of the calendar. A taxable person who has already submitted his or her VAT return for a given tax period (see, in that regard, Article 250(1) of the VAT Directive) could thus be required continually to correct or supplement that return as and when he or she receives late invoices relating to taxable transactions carried out during the tax period concerned.

67. Furthermore, the judgment under review is silent on the treatment of any invoices which the taxable person might still receive after the expiry of the deadline for submitting his or her VAT return or for correcting it. (42) Although it is true that the facts of the main proceedings do not necessarily require that aspect to be taken into account, it would seem to me to be inappropriate, or even regrettable, for the Court of Justice to adopt a solution which can already be foreseen as likely to be unsuitable for certain situations that may arise on a regular basis.

68. For all those significant practical reasons, it seems to me clearly preferable to confirm the rule in Terra Baubedarf-Handel and, consequently, not to endorse the General Court’s departure from that case-law in the judgment under review.

Interim conclusion

69. In the light of all those considerations, it must be concluded that the judgment under review fails to have regard to the relevant case-law of the Court of Justice and, consequently, the General Court misinterprets the provisions and principles of EU law governing the exercise of the right to deduct input tax. The General Court therefore erred in law in that judgment.

B. Effect on the unity or consistency of EU law

70. Since, on the basis of the foregoing analysis, the judgment under review is vitiated by an error of law, it remains to be assessed whether that judgment affects the unity or consistency of EU law.

The concept of ‘EU law’ in the context of the third subparagraph of Article 256(3) TFEU

71. First of all, it is important to clarify the concept of ‘EU law’, the unity or consistency of which may have been affected for the purposes of the third subparagraph of Article 256(3) TFEU. The meaning of that concept may vary depending on the procedural context in which it is used, since each special procedure has its own logic (see, in particular, the related review procedure concerning appeals set out in the second subparagraph of Article 256(2) TFEU and – less closely related – the mechanism for allowing certain appeals to proceed provided for in the third subparagraph of Article 58a of the Statute of the Court of Justice).

72. At first sight, it might be envisaged that the concept of EU law for the purposes of Article 256(3) TFEU could be interpreted broadly, with the result that it would be necessary for the unity or consistency of EU law to be affected as a whole, rather than merely in a specific and clearly defined field, such as the common system of VAT.

73. On closer inspection, however, a significantly narrower interpretation of the concept of EU law seems to me to be more consistent with the objectives and general structure of the preliminary ruling review mechanism, as established by the third subparagraph of Article 256(3) TFEU.

74. First, under the first subparagraph of Article 256(3) TFEU, the General Court has jurisdiction to give preliminary rulings only in specific areas laid down by the Statute of the Court. It is also apparent from the first subparagraph of Article 50b of the Statute of the Court that those preliminary ruling cases always come exclusively within one or several of the areas listed therein, including the common system of VAT. Moreover, the transfer of jurisdiction to give preliminary rulings is expressly excluded, pursuant to the second subparagraph of Article 50b of the Statute of the Court, where a case raises independent questions relating to the interpretation of primary law, public international law, general principles of EU law or the Charter of Fundamental Rights. It follows that the preliminary ruling cases transferred to the General Court are, in principle, not likely to raise cross-cutting issues or points of law falling outside the scope of one of the technical matters concerned. If, however, any error of law on the part of the General Court were required to affect the unity or consistency of EU law as a whole, the scope of the review by the Court of Justice would risk being virtually nullified.

75. Secondly, one of the essential functions of the review mechanism is to eliminate significant tensions or divergences in case-law which might arise, (43) in a specific area, between the Court of Justice and the General Court, or even within the General Court itself, since such tensions or divergences may create legal uncertainty and undermine the authority and reputation of the EU courts as a whole. It is reasonable to consider that this aspect will be a central concern whenever a decision of the General Court given as a preliminary ruling is referred to the Court of Justice for review.

76. It is, admittedly, true that all the reviews carried out to date by the Court of Justice in the related area of appeal cases, on the basis of the second subparagraph of Article 256(2) TFEU, (44) have, in one way or another, concerned general, fundamental or cross-cutting principles capable of affecting EU law as a whole, and not only a specific area. This does not, however, preclude a review from also being carried out, and an adverse effect on the unity or consistency of EU law from being found, where the error of law made by the General Court concerns only a specific technical area of EU law. To rule out such a possibility would be to deprive the review mechanism of a large part of its raison d’être. (45)

77. Consequently, I consider that the concept of EU law for the purposes of the third subparagraph of Article 256(3) TFEU must be understood to mean that even a technical point of law falling within one of the specific areas of EU law subject to the General Court’s jurisdiction in preliminary rulings may justify the initiation of review proceedings and, ultimately, a finding that the unity or consistency of EU law has been affected.

The finding that the unity or consistency of EU law is affected

78. Next, it remains to be assessed whether the judgment under review does in fact affect the unity or consistency of EU law.

79. In the review judgments handed down to date – admittedly all under Article 256(2) TFEU, regarding decisions of the General Court relating to appeals concerning the European civil service – the Court of Justice has relied in particular on the fact that the General Court had misinterpreted an important principle for EU law. (46) In some of those review judgments, it was also emphasised that the General Court had departed from the established case-law of the Court of Justice (47) or that the decision under review could constitute a precedent for future cases. (48)

80. Those criteria, which are not exhaustive, (49) can easily be applied, mutatis mutandis, to the context of a review in the area of preliminary rulings under the third subparagraph of Article 256(3) TFEU. Applied to the present case, they demonstrate without difficulty that the judgment under review affects the unity and, above all, the consistency of EU law on VAT.

81. As described in more detail above, (50) the General Court departed from the established case-law of the Court of Justice, as laid down in the judgment in Terra Baubedarf-Handel (51) and subsequently confirmed in the judgments in Senatex, (52) in A. (Exercise of the right of deduction) (53) and in Aptiv Services Hungary. (54)

82. It is true that the development of the case-law relating to VAT is now, in principle, entrusted to the General Court (55) and that any correction by the Court of Justice in the context of review proceedings is necessarily of an exceptional nature. (56) The Court of Justice cannot therefore systematically substitute its own legal assessment of a reference for a preliminary ruling for that of the General Court. This notwithstanding, the review mechanism must allow the Court of Justice occasionally to rectify a preliminary ruling by the General Court, in particular where such a ruling may create legal uncertainty or establish a new line of case-law which is inconsistent with the fundamental principles governing the area concerned.

83. That is precisely the situation here. The error of law made by the General Court concerns the right to deduct input tax and thus goes to the very heart of the common system of VAT. The correct framework for that right to deduct is of paramount importance, since that right – a keystone of the common system of VAT (57) – is an expression of VAT neutrality, (58) which in turn constitutes one of the fundamental principles of the area concerned. (59)

84. What is more, the coexistence of the judgment under review with the established case-law of the Court of Justice to the contrary, which the Court of Justice has, moreover, confirmed after the judgment under review was delivered, (60) is likely to create legal uncertainty and cause confusion in the minds of litigants and practitioners, all the more so since the solution proposed by the General Court raises significant questions as to its day-to-day practicability. (61)

85. In the light of all those considerations, I consider that the judgment under review affects the unity and consistency of EU law, for the purposes of the third subparagraph of Article 256(3) TFEU.

VI. Consequences for the pending preliminary ruling proceedings

86. Since the judgment under review is vitiated by a significant error of law which affects the unity and consistency of EU law, it is appropriate to note that fact and to formulate, moreover, a new answer to the question referred for a preliminary ruling, which would be substituted for that adopted by the General Court (last sentence of the second subparagraph of Article 62b of the Statute of the Court of Justice).

87. Specifically, and in order to dispel any doubts which may remain in the minds of litigants and practitioners, the new answer to the question referred for a preliminary ruling should also make reference to Article 179 of the VAT Directive – which the General Court did not include – and could be divided into two parts:

– a first, more general part could draw inspiration from the judgment in Terra Baubedarf-Handel and clarify that the right to deduct input tax must be exercised in respect of the period during which the two conditions required are satisfied for the first time, namely, on the one hand, that the goods have been delivered or the services performed and, on the other, that the taxable person is in possession of the relevant invoice;

– a second, more specific part could reproduce the answer given by the General Court in the judgment under review, whilst adding to it a negation to the effect that the provisions and principles in question do not preclude national legislation such as the Polish legislation at issue in the main proceedings.

VII. Conclusion

88. In the light of all the foregoing considerations, I propose that the Court of Justice should rule as follows:

(1) The judgment of the General Court of the European Union of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113), affects the unity and consistency of EU law.

(2) Articles 167, 168(a), 178(a) and the first subparagraph of Article 179 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT), as amended by Council Directive 2010/45/EU of 13 July 2010, and the principle of VAT neutrality and the principle of proportionality

must be interpreted as meaning that:

(a) the right to deduct input tax must be exercised in respect of the period during which the two conditions required are satisfied for the first time, namely that the goods have been delivered or the services performed and that the taxable person is in possession of the relevant invoice;

(b) those provisions and principles do not preclude national legislation under which a taxable person may not assert his or her right to deduct input tax in a return submitted for a period in which he or she satisfied the substantive conditions for exercising that right if, during that period, he or she had not yet received the corresponding invoice, even though he or she did receive the invoice before submitting the return.

1 Original language: French.

2 The first of those review cases is D (Air traffic management decision, C‑108/26 RX), in which Advocate General Norkus is also delivering his Opinion today.

3 Judgment of 11 February 2026 (T‑689/24, EU:T:2026:113).

4 Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2010/45/EU of 13 July 2010 (OJ 2010 L 189, p. 1).

5 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268).

6 Judgment of 12 March 2026 (C‑521/24, EU:C:2026:191).

7 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraph 47 and operative part).

8 Decision of 26 March 2026, Dyrektor Krajowej Informacji Skarbowej (C‑167/26 RX, EU:C:2026:288).

9 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268).

10 Judgment of 12 March 2026 (C‑521/24, EU:C:2026:191).

11 Judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804); of 28 February 2013, Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134); of 19 September 2013, Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:570); of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX-II, EU:C:2015:588); and of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232).

12 See also judgment of 25 May 2023, Dyrektor Izby Administracji Skarbowej w Warszawie (VAT – Fictitious acquisition) (C‑114/22, EU:C:2023:430, paragraph 31).

13 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraphs 25 and 27).

14 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraphs 31 and 32).

15 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraphs 42, 47 and operative part).

16 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraphs 34, 38 and operative part).

17 Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1); the relevant provisions of that directive have been reproduced, in essence, by the current VAT Directive.

18 It is worth noting that the opposite approach, now advocated by the General Court in the judgment under review, had already been put forward and discussed at the time of the judgment in Terra Baubedarf-Handel (see the Opinion of Advocate General Stix-Hackl of 16 October 2003 in Terra Baubedarf-Handel (C‑152/02, EU:C:2003:557, points 44, 45, 54 and 55), but was clearly not adopted by the Court of Justice.

19 Judgment of 29 April 2004, Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268, paragraph 37).

20 Judgment of 15 September 2016 (C‑518/14, EU:C:2016:691, paragraph 35).

21 Judgment of 18 March 2021 (C‑895/19, EU:C:2021:216, paragraph 40).

22 Judgment of 12 March 2026 (C‑521/24, EU:C:2026:191, paragraphs 56 and 58).

23 Judgments of 27 March 1980, Denkavit italiana (61/79, EU:C:1980:100, paragraph 16); of 2 February 1988, Barra and Others (309/85, EU:C:1988:42, paragraph 11), and of 12 March 2026, Magyar Telekom (C‑514/24, EU:C:2026:184, paragraph 38).

24 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraphs 34, 38 and operative part).

25 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraph 35).

26 The General Court’s interpretation of the judgment in Terra Baubedarf-Handel was no doubt distorted by a lack of terminological precision in the judgment of the Court of Justice of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 39), which states – incorrectly, in my view – that the case which gave rise to the judgment in Terra Baubedarf-Handel ‘concerned an undertaking which did not hold an invoice at the time when it exercised the right of deduction’ (emphasis added). In fact, the Terra Baubedarf-Handel case concerned an undertaking which indeed had an invoice at the time it exercised its right to deduct input tax, but had not had such an invoice during the preceding tax period in respect of which it sought to exercise that right of deduction.

27 Judgment of 29 April 2004, Terra Baubedarf-Handel (C‑152/02, EU:C:2004:268, paragraph 9).

28 In the judgment under review, the General Court refers, in particular, to the judgments of 26 April 2018, Zabrus Siret (C‑81/17, EU:C:2018:283); of 14 October 2021, Finanzamt N and Finanzamt G (Communication of the allocation decision) (C‑45/20 and C‑46/20, EU:C:2021:852); and of 16 February 2023, DGRFP Cluj (C‑519/21, EU:C:2023:106). Moreover, the General Court cites, in wider support of its reasoning, the judgments of 21 March 2018, Volkswagen (C‑533/16, EU:C:2018:204); of 18 March 2021, A. (Exercise of the right of deduction) (C‑895/19, EU:C:2021:216); and of 21 October 2021, Wilo Salmson France (C‑80/20, EU:C:2021:870).

29 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraphs 30 to 34).

30 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraph 31).

31 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraph 32).

32 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraphs 34, 38 and operative part).

33 Judgment of 15 September 2016 (C‑518/14, EU:C:2016:691, paragraph 35).

34 Judgment of 18 March 2021 (C‑895/19, EU:C:2021:216, paragraph 40).

35 Judgment of 12 March 2026 (C‑521/24, EU:C:2026:191, paragraphs 56 and 58).

36 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraphs 37 and 38).

37 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraph 35, second sentence).

38 Judgment of 15 September 2016 (C‑518/14, EU:C:2016:691, in particular paragraph 43 and operative part).

39 Judgment of 11 February 2026, Dyrektor Krajowej Informacji Skarbowej (T‑689/24, EU:T:2026:113, paragraph 41).

40 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraphs 34, 38 and operative part).

41 Point 43 of this Opinion.

42 See, in that regard, judgment of 18 March 2021, A. (Exercise of the right of deduction) (C‑895/19, EU:C:2021:216).

43 Accordingly, in the judgment of 19 September 2013, Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:570, paragraph 58), the Court of Justice found, in essence, that the General Court had affected the consistency of EU law by departing from the case-law of the Court of Justice.

44 Judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804); of 28 February 2013, Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134); of 19 September 2013, Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:570); of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX-II, EU:C:2015:588); and of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232).

45 See, to that effect, my View of 11 June 2013 in Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:573, points 22 and 23), albeit in a somewhat different context.

46 Judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 65); of 28 February 2013, Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134, paragraph 53); of 19 September 2013, Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:570, paragraph 58); of 10 September 2015, Review Missir Mamachi di Lusignano v Commission (C‑417/14 RX-II, EU:C:2015:588, paragraph 57); and of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraphs 57, 71 and 86).

47 Judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 63), and of 28 February 2013, Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134, paragraph 51).

48 Judgments of 17 December 2009, Review M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 62); of 28 February 2013, Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2013:134, paragraph 50); and of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 85).

49 See, to that effect, View of Advocate General Mengozzi of 21 November 2012 in Review Arango Jaramillo and Others v EIB (C‑334/12 RX-II, EU:C:2012:733, point 70), as well as my View of 11 June 2013 in Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:573, point 59).

50 See above, point 43 et seq. of this Opinion.

51 Judgment of 29 April 2004 (C‑152/02, EU:C:2004:268, paragraphs 34, 38 and operative part).

52 Judgment of 15 September 2016 (C‑518/14, EU:C:2016:691, paragraph 35).

53 Judgment of 18 March 2021 (C‑895/19, EU:C:2021:216, paragraph 40).

54 Judgment of 12 March 2026 (C‑521/24, EU:C:2026:191, paragraphs 56 and 58).

55 See, by analogy, the decision of 8 February 2011, Review Commission v Petrilli (C‑17/11 RX, EU:C:2011:55, paragraph 4).

56 See the actual wording of the third subparagraph of Article 256(3) TFEU: ‘exceptionally’.

57 See, to that effect, judgments of 6 July 1995, BP Soupergaz (C‑62/93, EU:C:1995:223, paragraph 18); of 10 February 2022, Grundstücksgemeinschaft Kollaustraße 136 (C‑9/20, EU:C:2022:88, paragraph 47); and of 12 September 2024, NARE-BG (C‑429/23, EU:C:2024:742, paragraph 45).

58 Judgments of 21 September 1988, Commission v France (50/87, EU:C:1988:429, paragraph 15); of 15 September 2016, Senatex (C‑518/14, EU:C:2016:691, paragraph 27); of 18 March 2021, A. (Exercise of the right of deduction) (C‑895/19, EU:C:2021:216, paragraph 33); and of 12 March 2026, Aptiv Services Hungary (C‑521/24, EU:C:2026:191, paragraph 48).

59 Judgments of 19 September 2000, Schmeink & Cofreth and Strobel (C‑454/98, EU:C:2000:469, paragraph 59, second sentence); of 12 March 2026, Aptiv Services Hungary (C‑521/24, EU:C:2026:191, paragraph 61); and of 12 March 2026, Harry et Associés (C‑527/24, EU:C:2026:192, paragraph 44).

60 Judgment of 12 March 2026, Aptiv Services Hungary (C‑521/24, EU:C:2026:191, paragraphs 56 and 58).

61 See, in that regard, the explanations set out above (in particular points 64 to 66 of this Opinion).

Opinion of Advocate General Kokott delivered on 10 September 2026.###

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