Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

5 October 2023 (*)

(Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Maintenance of the effects of national legislation incompatible with EU law)

In Case C‑355/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium), made by decision of 30 May 2022, received at the Court on 1 June 2022, in the proceedings

Osteopathie Van Hauwermeiren BV

v

Belgische Staat,

THE COURT (Sixth Chamber),

composed of P.G. Xuereb, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, and I. Ziemele, Judge,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Osteopathie Van Hauwermeiren BV, by B. Hermans, S. Lippens and L. Van Lembergen, advocaten,

–        the Belgian Government, by P. Cottin, J.-C. Halleux and C. Pochet, acting as Agents,

–        the Spanish Government, by I. Herranz Elizalde, acting as Agent,

–        the European Commission, by J. Jokubauskaitė and W. Roels, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 267 TFEU.

2        This request has been made in proceedings between Osteopathie Van Hauwermeiren BV and the Belgische Staat (Belgian State) concerning a report and a collection and recovery notice for value added tax (VAT) due for the period from 2013 to 2019, a fine and interest.

 Legal context

 European Union law

3        Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), provides:

‘Member States shall exempt the following transactions:

…

(c)      the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned’.

 Belgian law 

4        Article 44 of the Value Added Tax Code (Belgisch Staatsblad, 17 July 1969, p. 7046, ‘the VAT Code’), provides that certain supplies of services are exempt from VAT.

5        Article 8 of the Special Law of 6 January 1989 on the Constitutional Court (Belgisch Staatsblad, 7 January 1989, p. 315) empowers the Constitutional Court to maintain certain effects of a provision it annuls.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

6        Osteopathie Van Hauwermeiren is a limited liability company which was subject to VAT from 1 January 2006 to 30 September 2020 for its economic activity ‘other activities for human health’.

7        By decision of 28 September 2017, the Grondwettelijk Hof (Constitutional Court, Belgium) referred questions for a preliminary ruling to the Court relating, inter alia, to the national tax regime applicable to the activities of osteopaths and concerning the interpretation of, inter alia, Article 132(1)(c) of Directive 2006/112 as well as the possibility for a national court to make use of a national provision empowering it to maintain certain effects of a measure which has been annulled in order to maintain temporarily the effect of national provisions which it has found incompatible with that directive until they are made to comply with that directive.

8        The Court responded to those questions in its judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others (C‑597/17, EU:C:2019:544).

9        Following that judgment, the Grondwettelijk Hof (Constitutional Court), in its judgment of 5 December 2019, annulled Article 44(1) of the VAT Code, in so far as that provision did not allow exemption from VAT for chiropractic or osteopathic services to be granted to practitioners of medical and paramedical professions other than those referred to in that provision, where those practitioners had the necessary qualifications to provide personal care services of a sufficiently high standard to be considered similar to those offered by members of a regulated medical or paramedical profession.

10      In that judgment, that court also decided to make use of the power granted to it by Article 8 of the Special Law of 6 January 1989 on the Constitutional Court and to maintain the effects of Article 44(1) of the VAT Code for taxable events prior to 1 October 2019. In that respect, it specified that overriding considerations of legal certainty relating to all the interests at stake, both public and private, in particular the impossibility in practice of refunding the VAT wrongly levied to the customers of the supplies of goods or services made by the taxable person or of reclaiming payment from them in the event of non-taxation being wrongly applied, particularly where a large number of unidentified persons are involved, or where the persons liable for the tax do not have an accounting system enabling them to identify those supplies of goods or services and their value, preclude retroactive application of the judgment annulling a measure.

11      On 19 July 2020, Osteopathie Van Hauwermeiren filed its VAT return for the second quarter of 2020, in which it entered an amount of EUR 45 355.81 in the section relating to VAT adjustments in its favour and requested a refund of this amount.

12      On 2 September 2020, a report was drawn up by the Belgian tax authority stating that Osteopathie Van Hauwermeiren was liable for this amount of VAT, a fine and interest.

13      According to that authority, since the Constitutional Court has decided to maintain the effects of Article 44(1) of the VAT Code for taxable events prior to 1 October 2019, the transactions of Osteopathie Van Hauwermeiren for which VAT was due before 1 October 2019 do not fall within the scope of the exemption provided for by that provision. Osteopathie Van Hauwermeiren is therefore not entitled to a refund of the VAT paid on those transactions.

14      On 12 January 2021, Osteopathie Van Hauwermeiren brought an action before the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division, Belgium), which is the referring court, for a declaration that, first, the report of 2 September 2020 was unlawful and unfounded and, second, it is not liable for the amounts stated therein, namely VAT of EUR 45 355.81, a fine of EUR 4 530 and interest of EUR 382.63.

15      In that regard, Osteopathie Van Hauwermeiren claimed that the judgment of the Grondwettelijk Hof (Constitutional Court) of 5 December 2019 should be set aside as contrary to EU law. As a result, it submits that it is entitled to a refund of the VAT it had paid for the period prior to 1 October 2019.

16      In those circumstances, the rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Court of First Instance, East Flanders, Ghent Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should the judgment of the Court of Justice of 8 April 1976, [Defrenne (43/75, EU:C:1976:56)], be interpreted as granting the national court autonomous power – sua sponte and without submitting a request for a preliminary ruling under Article 267 TFEU – to maintain, on the basis of a purely internal legal provision, the effects, as regards the past, of national legislation concerning the VAT exemption for medical and paramedical services in respect of which the same court (having previously, in the same dispute, submitted three requests for a preliminary ruling under Article 267 TFEU to the Court of Justice, which the Court answered by judgment of 27 June 2019[, Belgisch Syndicaat van Chiropraxie and Others (C‑597/17, EU:C:2019:544)] subsequently found that the contested provision is contrary to European Union law and partially annulled that contested provision of national law, while maintaining the effects, as regards the past, of that provision of national law found to be contrary to EU law, thereby completely denying taxable persons liable for VAT the right to a refund of VAT levied in breach of EU law?

(2)      Is the national court entitled to maintain – autonomously and without submitting a request for a preliminary ruling under Article 267 TFEU – the effects, as regards the past, of a national provision held to be contrary to [Directive 2006/112], on the basis of a general reference to “important considerations of legal certainty affecting all the interests involved, both public and private” and an alleged “practical impossibility of refunding unduly collected VAT to the recipients of the supplies or services provided by the taxable person or of claiming payment from them in the event of an erroneous failure to charge them, particularly where a large number of unidentified persons is involved, or where the taxable persons do not have an accounting system that enables them subsequently to identify the supplies or services in question and their value” when the taxable persons have not even been given the possibility of demonstrating that such a “practical impossibility” does not exist?’

 Consideration of the questions referred

 The second question

17      It should be noted at the outset that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (judgment of 25 May 2023, Danish Fluid System Technologies, C‑368/22, EU:C:2023:427, paragraph 31 and the case-law cited).

18      As is clear from the order for reference, the second question asked by the referring court concerns, in particular, the assumption that non-liability to VAT has been wrongly applied.

19      It should be noted, however, that such a circumstance is extraneous to the case at issue in the main proceedings. Indeed, it is clear from the order for reference that this case concerns the opposite situation, that is to say, a tax liability which, according to the applicant in the main proceedings, was wrongly applied.

20      In those circumstances, it must be held that, by its second question, which it is necessary to consider first, the referring court asks, in essence, whether a national court may make use of a national provision empowering it to maintain certain effects of a provision of national law which it has found to be incompatible with Directive 2006/112, on the basis of an alleged impossibility of refunding the VAT wrongly levied to the customers of the services provided by a taxable person, in particular by reason of the large number of persons concerned or where those persons do not have an accounting system enabling them to identify those services and their value.

 Admissibility

21      The Belgian Government submits that the second question is inadmissible.

22      First, by this question the referring court is ruling on the grounds set out by the Grondwettelijk Hof (Constitutional Court) in its judgment of 5 December 2019, whereas it is not, under national procedural rules, entitled to review those grounds. Second, the answer to that question requires an assessment of the facts and therefore exceeds the jurisdiction conferred on the Court by Article 267 TFEU.

23      In that respect, should be recalled that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 61 and the case-law cited).

24      Accordingly, it is not for the Court, in proceedings for a preliminary ruling under Article 267 TFEU, to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of courts and their procedure (see, to that effect, judgment of 29 March 2022, Getin Noble Bank,  C‑132/20, EU:C:2022:235, paragraph 70).

25      Furthermore, while it is true that, in the context of those proceedings, the national court alone has jurisdiction to find and assess the facts of the dispute in the main proceedings (judgment of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 61 and the case-law cited), it is clear from the wording of the second question that, by that question, the national court is asking the Court to interpret EU law, without seeking an application of that law to the facts at issue in the main proceedings.

26      It follows that the second question is admissible.

 Substance

27      As a preliminary point, it is clear from the settled case-law of the Court that, under the principle of cooperation in good faith laid down in Article 4(3) TEU, Member States are required to nullify the unlawful consequences of a breach of European Union law, and that such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 54 and the case-law cited).

28      Therefore, where the authorities of the Member State concerned find that national legislation is incompatible with EU law, while they retain the choice of the measures to be taken, they must ensure that national law is brought into line with EU law as soon as possible, and that the rights which individuals derive from EU law are given full effect (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 55 and the case-law cited).

29      In that context, it is for the national courts hearing an action against national legislation that is incompatible with Directive 2006/112 to adopt measures, on the basis of their national law, to avoid the implementation of that legislation (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 56).

30      Only the Court may, in exceptional cases, on the basis of overriding considerations of legal certainty, allow the temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto. Such a restriction on the temporal effects of the interpretation of that law, made by the Court, may be granted only in the actual judgment ruling upon the interpretation requested (judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 216 and the case-law cited).

31      The primacy and uniform application of EU law would be undermined if national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily (judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 217 and the case-law cited).

32      It should also be borne in mind that a judgment delivered in the context of the preliminary ruling procedure provided for in Article 267 TFEU is binding on the national court as regards the interpretation of EU law for the purposes of resolving the dispute before it (see, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 74).

33      In addition, since the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines where necessary the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time at which it entered into force, it must be found that an ordinary court is required, in order to ensure the full effectiveness of the rules of EU law, to disregard, in a dispute before it, the rulings of a national constitutional court which refuses to give effect to a judgment given by way of a preliminary ruling by the Court of Justice, even where that judgment does not arise from a request for a preliminary ruling made, in connection with that dispute, by that ordinary court (judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 77).

34      In that context, it should be noted that the Court held, in paragraph 63 of the judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others (C‑597/17, EU:C:2019:544), in circumstances such as those which gave rise to that case, a national court may not make use of a national provision empowering it to maintain certain effects of a measure which has been annulled in order to maintain temporarily the effect of national provisions which it has found incompatible with Directive 2006/112 until they are made to comply with that directive, with a view, in particular, to limiting the risks of legal uncertainty resulting from the retroactive effect of that annulment.

35      The factors referred to by the referring court in the present case cannot justify a different conclusion.

36      It is thus claimed that it is impossible to refund unduly collected VAT to customers for services provided by a taxable person, particularly when a large number of persons are involved or when those persons do not have an accounting system that enables them to identify the services and their value. That being so, such a consideration falls within the scope of administrative and practical problems which may be faced by the competent national authorities and economic operators in the context of refunding unduly paid VAT to customers of the services.

37      The Court has stated that, even assuming that overriding considerations of legal certainty were capable of leading, by way of exception, to a provisional suspension of the ousting effect which a directly applicable rule of EU law has on national law that is contrary thereto, merely referring to the budgetary and administrative problems which might arise from the annulment of the contested provisions is not sufficient to establish overriding considerations of legal certainty (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraphs 59 and 60 and the case-law cited).

38      Furthermore, it is clear from the Court’s case-law that the administrative and practical difficulties which the competent national authorities or economic operators may face in identifying, in particular, the persons eligible for reimbursement are not capable, in themselves, of establishing a risk of serious difficulty and, consequently, the existence of overriding considerations of legal certainty (see, to that effect, judgments of 5 October 2006, Nádasdi and Németh, C‑290/05 and C‑333/05, EU:C:2006:652, paragraphs 65 and 70, and of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraphs 63 and 64).

39      Having regard to all of the foregoing considerations, the answer to the second question is that a national court may not make use of a national provision empowering it to maintain certain effects of a provision of national law which it has found to be incompatible with Directive 2006/112, on the basis of an alleged impossibility of refunding the VAT wrongly levied to the customers of the services provided by a taxable person, in particular by reason of the large number of persons concerned or where those persons do not have an accounting system enabling them to identify those services and their value.

 The first question

40      In view of the answer to the second question, it is not necessary to answer the first question, which seeks to determine the procedural conditions under which a national court could, where appropriate, make use of a provision of its national law enabling it to maintain temporarily the effects of a provision of national law which it annuls on the grounds of its incompatibility with EU law.

 Costs

41      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

A national court may not make use of a national provision empowering it to maintain certain effects of a provision of national law which it has found to be incompatible with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the basis of an alleged impossibility of refunding the value added tax (VAT) wrongly levied to the customers of the services provided by a taxable person, in particular by reason of the large number of persons concerned or where those persons do not have an accounting system enabling them to identify those services and their value.

[Signatures]

*      Language of the case: Dutch.

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