Published on 17 April 2023

FIFTH SECTION

Application no. 46821/16 KIMBERLI-KLARK UKRAYINA, TOV against Ukraine lodged on 28 July 2016 communicated on 28 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the impossibility for the applicant company to rectify its VAT declaration, submitted in the context of legislative changes, and have the allegedly overpaid amounts returned to it.

In particular, the applicant company’s request to have the VAT rate changed from 20% to 7% in view of the nature of goods it imported (medical goods) was refused by the tax authorities as i) the applicant had itself defined the rate in its declaration, therefore it was considered “settled” and there was no issue of unlawfulness of the customs authorities’ actions, and ii) the goods the applicant imported could not be considered “medical” according to the new legislation.

By its final decision of 28 January 2015, the High Administrative Court of Ukraine endorsed the above reasoning. The court also noted that the applicant company failed to submit documents that would necessitate the rectification of its declaration. The applicant company’s requests to have its case reviewed by the Supreme Court based on the divergent application of domestic law (in the light, inter alia , of two cases of other importers in which the courts would acknowledge their right to import similar goods at 7%) were rejected as unfounded.

The applicant company complains under Article 1 of Protocol No. 1 that the domestic law which led to the interference with its property rights lacked stability and clarity.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

2. If so, was it lawful, in particular as regards the quality of the applicable legislation and/or the case law of the domestic courts?