The ECJ repeated in its Biosafe decision (judgment of 12.04.2018 – C-8/17), the reasoning contained in the case Volkswagen AG, namely that a national regulation, regarding a limitation period is not applicable in certain circumstances. Whereas the case Volkswagen AG considered an input VAT refund claim according to Directive 2008/9/EU, the case Biosafe concerned the regular taxation procedure. This decision may also have an impact on the German regulation regarding the Statute of Limitations, sec. 169 ff. German General Fiscal Code.

Member States must pay the total amount of the reim-bursement interest regulated in their legislation. In the view of the European Court of Justice, this also applies if the interest is higher in a particular case than the actual financial disadvantage suffered by the taxpayer (judgment of 28 February 2018 – C-387/16 – Nidera). This decision may impact on the discussion concerning the lawfulness of the German interest on arrears (6% p.a.).

Where a taxable person subsequently invoices VAT in invoices for supplies, which previously he had treated as being VAT exempt, this does not result in the recipient’s input VAT deduction, by means of a VAT refund, being disallowed. Any possible limitation periods are irrelevant in cases where the recipient was unable to claim the refund within time, due to the fact that he did not have an invoice and was unaware of the VAT liability (ECJ, decision of 21.03.2018 - C- 533/16 Volkswagen AG). Here, substantive law prevails over procedural law.