Lodged by the Supreme Administrative Court
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
1/ Can Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States be interpreted as permitting the source State, by virtue of a decision under Article 1(12), to grant an exemption from tax also for a period prior to the time when the certificates and supporting information which the source State may reasonably require are submitted or when the decision itself is issued?
2/ If the answer to Question 1 is in the affirmative, does the Directive or any other rule of EU law, directly or indirectly
(a) any time limit for the production of certificates and supporting information that the source State may reasonably require for the purposes of issuing a decision granting an exemption under Article 1(12), or
(b) any time limitation on the period of time for which exemption may be granted prior to the submission of such certificates and supporting information as the source State may reasonably require?
The text of the reference for the preliminary ruling (order of 26. November 2024, no. 2 Afs 140/2022 - 43 can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-828/24.
The Supreme Administrative Court referred the following preliminary question to the Court of Justice:
Does Article 34 TFEU, having regard to Article 36 TFEU and Article 9(7) of Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products, preclude national legislation that imposes on a recipient of food supplements from another Member State the general obligation to report, no later than 24 hours in advance of their arrival at their place of destination, and provide the information required for carrying out a risk analysis and planning official controls?
The text of the reference for the preliminary ruling (order of 17 September 2024, no. 8 As 259/2023-119) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-626/24.
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
1) Does Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests permit:
a) National legislation which, within the meaning of Article 3(3) of the Regulation, sets a longer time limit for a decision about a case (here of 10 years) than that based on the fourth subparagraph of Article 3(1) of the regulation, without, at the same time, expressly laying down a separate time limit for the initiation of proceedings, as provided for by the first subparagraph of Article 3(1) of Regulation No 2988/95?
b) A Member State to establish, as the start of the time limit for the adoption of a decision, the first day of the next calendar year, instead of the time when the irregularity occurred?
2) If the answer to part (a) of the first question is affirmative, does Regulation 2988/95 permit a Member State that has exercised its right under Article 3(3) of the regulation to commence proceedings within a time limit that is longer than that based on the first subparagraph of Article 3(1) of Regulation 2988/95? Or is it necessary – in the event that national legislation does not provide for a special time limit for the commencement of proceedings – to proceed in line with the first subparagraph of Article 3(1) of Regulation 2988/95 and commence the proceedings within the time limit laid down therein?
3) Where irregularities, within the meaning of Article 1(1) of Regulation 2988/95, have arisen in the financing of projects related to an EU policy and in relation to subsidies provided in part from EU resources and in part from resources of the Member State’s budget, is it necessary to proceed solely in line with Regulation 2988/95 (including the time limits and definitions), and hence, to apply the regulation to the irregularity in full? Or is it necessary to proceed in that way only in relation to a severable portion of the subsidy that is provided from EU resources and, by contrast, to proceed in line with national legislation in relation to the severable portion provided from a Member State’s budget?
The text of the reference for the preliminary ruling (order of 31 July 2024, No. 10 Afs 82/2024-52) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-539/24.
The Supreme Administrative Court referred the following preliminary question to the Court of Justice:
Must Article 173(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax be interpreted as meaning that, where a transaction in respect of which VAT is deductible depends on the possession of a licence to carry out transactions in respect of which VAT is not deductible (in this case, health services), do the goods and the services relating thereto, which constitute, under national legislation, the minimum technical and material equipment for healthcare facilities, on which the provision of healthcare services depends, correspond to general (overhead) costs directly and immediately linked to the overall economic activity of the taxable person, and hence, give rise to a right to deduct a proportion of the tax?
The text of the reference for the preliminary ruling (order of 15 July 2024, no. 8 Afs 39/2023-90) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-513/24.
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
(1) Is Article 1(b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council concerning the supplementary protection certificate for medicinal products to be interpreted as meaning that a substance expressly designated as an excipient, in the authorisation for a medicinal product, cannot be regarded as an active ingredient?
(2) If the answer to question 1 is in the negative, is Article 1(b) of Regulation No 469/2009 to be interpreted, in the light of Article 8(1) and Article 10(1) to (3) of that regulation, as meaning that a substance must be deemed to constitute an active ingredient if it has a therapeutic effect of its own which is included in the therapeutic indications of the marketing authorisation and which is also demonstrably identifiable from the basic patent and the documents mandatorily presented with the application for a certificate?
(3) If the answers to questions 1 and 2 are negative, is Article 1(b) of Regulation No 469/2009 to be interpreted as meaning that a substance must be deemed to constitute an active ingredient if it has a therapeutic effect of its own which is included in the therapeutic indications of the marketing authorisation and that a person skilled in the art would identify as documented as of the date of the basic patent application or the date of priority of that patent?
(4) Is Article 1(b) of Regulation No 469/2009 to be interpreted as meaning that, inter alia, an excipient must be deemed to constitute an active ingredient with a therapeutic effect of its own which is included in the therapeutic indications in the authorisation of a medicinal product for treating breast cancer, if it breaks down another substance that occurs naturally in the human body, thereby facilitating the effects of the product’s main active ingredient on cancerous cells in breast cancer, if, according to certain studies and scientific articles, that excipient or a substance related thereto has resulted, in and of itself, in vitro or in animal models, in arresting the growth of tumours of the same as well as another type, or to the shrinkage thereof, and if other scientific articles confirm its potentially similar
effect in humans?
(5) Is Article 3(a) of Regulation No 469/2009, in conjunction with Article 1(b) thereof, to be interpreted as meaning that a product protected by a basic patent must also be deemed to include a combination of two active ingredients, if the subject of the invention to which the basic patent applies is only one of the two ingredients and the patent claims include its potential combination with othe alternatively specified categories of active ingredients, one of which may include the other active ingredient, according to the opinion of a person skilled in the art based on the state of knowledge as at the date of the basic patent application or the priority date of that same patent?
(6) If the answer to question five is negative, is Article 3(a) of Regulation No 469/2009, in conjunction with Article 1(b) of that regulation, to be interpreted HALOZYME as meaning that a product protected by the basic patent may be considered as including a combination of two active ingredients, if the subject of the invention to which the basic patent applies is only one of the two substances and the patent claims include its potential combination with other alternatively specified categories of active ingredients, one of which included the only active ingredient that was the subject of the authorisation for the medicinal product, regardless of whether there were, as at that date, other substances falling into that same category?
The text of the reference for the preliminary ruling (order of 18 June 2024, No. 8 As 158/2022-164) can be found here (only in Czech).
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-456/24.
The Supreme Administrative Court referred the following preliminary question to the Court of Justice:
Is the term 'error' in Article 116(7) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Customs Code of the European Union to be interpreted as meaning that the customs debt is recovered only if the repayment of duty was unintentionally caused by an unintended act of the customs authority, or can an error under that Article also be regarded as an incorrect decision by the customs authority as to the tariff classification of the goods?
The text of the reference for the preliminary ruling (order of 25 April 2024, no. 9 Afs 197/2023-20) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-330/24.
The Supreme Administrative Court referred the following preliminary question to the Court of Justice:
Does Article 205 of Council Directive 2006/112/EC on the common system of value added tax, in conjunction with the proportionality principle, preclude a national practice whereby the liability for the payment of value added tax by a supplier of a taxable transaction may be applied to the recipient of that transaction, even though the recipient of the taxable transaction has already been denied a right to a tax deduction due to its involvement in tax fraud?
The text of the reference for the preliminary ruling (order of 10 April 2024, no. 2 Afs 157/2023-80) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-276/24.
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
1) Must Article 155 of Directive 2009/138/EC (Solvency II) be interpreted such that it also applies to cases of supervision by the supervisory authority of a host State over compliance, by an insurance undertaking from another Member State, with the obligations laid down by Regulation No 1286/2014 (PRIIPs) or based on Directive 2016/97 (IDD)?
2) If so, does Article 155 of the Solvency II Directive imply priority powers for the supervisory authority of the home State, and the obligation on the part of the supervisory authority of the host State to first exhaust the notification and remedial procedures under paragraphs 1, 2, and 3 of that article of the directive, even in the case of imposing administrative sanctions under paragraphs 5 and 6 of that article of the directive?
The text of the reference for the preliminary ruling (order of 29 December 2023, no. 6 Afs 251/2022-34) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-18/24.
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
1) Is the situation in which, pursuant to special national value added tax arrangements for ‘societies’ (associations of persons that do not have legal personality), a ‘designated partner’ is liable for the payment of the VAT for the entire society, despite the fact that another partner had dealt with the end customer in relation to the supply of services, compatible with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular with Article 9(1) and Article 193 of the Directive?
2) Does the compatibility of the situation with Directive 2006/112/EC depend on whether the other partner had overstepped the rules of representing the society and dealt in his, her or its own name with the end customer?
The text of the reference for the preliminary ruling (order of 29 November 2023, no. 10 Afs 66/2023-70) can be found here.
The Court of Justice has not ruled yet. The proceedings is being carried out under case number C-796/23.
The Supreme Administrative Court referred the following question to the Court of Justice of the European Union for a preliminary ruling:
Does the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union preclude national legislation that prevents a court from ruling in judicial proceedings concerning the consultation of classified documents or records that were – in the proceedings before an administrative authority concerning the issue of a single permit – within the meaning of Article 4 of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work – kept separately, outside of the administrative file?
The text of the reference for the preliminary ruling by order of 23. 11. 2023, No. 10 Azs 53/2022-46.
The Court of Justice ruled as follows:
Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with the principle of equivalence, must be interpreted as not precluding national legislation which does not allow a national court reviewing the lawfulness of a residence decision adopted on the basis of Directive 2011/98/EU of the European Parliament and of the Council of 13 April 2011 to review the lawfulness of a residence decision. December 2011 on a uniform procedure for processing applications for a single permit to reside and work in the territory of a Member State by third-country nationals and on a common set of rights for third-country workers legally residing in a Member State, and which is based on classified information, prohibits it from allowing the person concerned to have access to that information himself, if it considers that there is no justification for not disclosing that information to that person, whereas, in proceedings which do not concern the right of residence of foreign nationals, the court has such jurisdiction.
(Unauthorised translation, not available in English)
The order of 4. 10. 2024 in Case C-761/23 (N.V.N. v. Commission for the Decision-making in Matters of Residence of Foreigners) is available here (only in French).
Subsequent decision in the case: Judgment of the Supreme Administrative Court of 7. 11. 2024, no. 10 Azs 53/2022 - 104 (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice of the European Union for a preliminary ruling:
Does Article 8(1) of Council Directive 2001/55/EC, having regard also to the Member States’ agreement not to apply Article 11 of that directive, preclude national legislation under which an application for a residence permit for the purpose of giving temporary protection is inadmissible if the foreign national has applied for a residence permit in another Member State or has already been granted a permit in another Member State?
Does a person enjoying temporary protection under Council Directive 2001/55/EC have the right to an effective remedy before a tribunal under Article 47 of the Charter of Fundamental Rights of the European Union against the failure of a Member State to grant a residence permit within the meaning of Article 8 (1) of Council Directive 2001/55/EC?
The text of the reference for the preliminary ruling by order of 30. 11. 2023, čj. 8 Azs 93/2023-37.
The Court of Justice did not grant the request of the Supreme Administrative Court to hear the case under the urgent preliminary ruling procedure by decision of 20. 12. 2023.
The Court of Justice ruled as follows:
1. Article 8(1) of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof must be interpreted as precluding national legislation under which the granting of a residence permit is to be refused to a person enjoying temporary protection, referred to in Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, where that person has already applied for, but has not yet obtained, such a permit in another Member State.
2. Article 8(1) of Directive 2001/55, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a person enjoying temporary protection under that directive has a right to an effective remedy before a tribunal against a decision to reject as inadmissible an application for a residence permit, within the meaning of Article 8 thereof.
The judgement of 27. 2. 2025 in case C-753/23 (Krasiliva) is available here.
Subsequent decision in the case: not yet delivered
The Supreme Administrative Court referred the following questions to the Court of Justice of the European Union for a preliminary ruling:
1. Does the disclosure of the first name, surname, signature and contact information of a natural person as the director or responsible representative of a legal person, made exclusively for the purpose of identification of the (person authorised to represent a certain) legal person still constitute processing of ‘personal data’ of the natural person concerned, pursuant to Article 4, point (1), GDPR, and thus fall within the scope of GDPR?
2. Can national law, including settled case-law, render the application by an administrative authority of a directly applicable EU regulation, namely Article 6(1)(c) or (e) GDPR, conditional on compliance with other conditions that do not follow from the text of the regulation itself but which, nevertheless, essentially extend the level of protection of personal data subjects, namely the obligation of a public authority to inform the data subject in advance of the submission of a request for the provision of his or her personal data to a third party?
The text of the reference for the preliminary ruling by order of 1. 11. 2023, No. 10 As 102/2023-43.
The Court of Justice ruled as follows:
1. Points 1 and 2 of Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
must be interpreted as meaning that the disclosure of the first name, surname, signature and contact details of a natural person representing a legal person constitutes processing of personal data. The fact that that disclosure is made for the sole purpose of enabling the identification of the natural person authorised to act on behalf of that legal person is irrelevant in that regard.
2. Article 6(1)(c) and (e) of Regulation 2016/679, read in conjunction with Article 86 of that regulation,
must be interpreted as not precluding national case-law which requires a controller, being a public authority responsible for reconciling public access to official documents with the right to the protection of personal data, to inform and consult the natural person concerned prior to the disclosure of official documents containing such data, provided that such an obligation is not impossible to implement and that it does not require disproportionate effort and, therefore, it does not result in a disproportionate restriction on public access to those documents.
The judgment of 3. 4. 2025 in Case C-710/23 (L.H. v Ministry of Health) is available here.
Subsequent decision in the case: the Supreme Administrative Court has not decided yet.
The Grand Chamber of the Supreme Administrative Court referred the following question to the Court of Justice of the European Union for a preliminary ruling:
Must Article 54(1) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 be interpreted as meaning that the Member State’s authorisation to request recovery of undue payments from the beneficiary lapses upon the expiry of the 18-month time limit laid down that provision?
The text of the reference for the preliminary ruling by order of 4. 10. 2023, No. 5 Afs 205/2021-80.
The Court of Justice ruled as follows:
Article 54(1) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008, read in conjunction with the first subparagraph of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests,
must be interpreted as not precluding the initiation of the recovery procedure for the amounts wrongly paid of a European Agricultural Fund for Rural Development (EAFRD) grant from its beneficiary after the expiry of the time limit of 18 months after the approval and, where applicable, reception, by the paying agency or body responsible for the recovery, of a control report or similar document, stating that an irregularity has taken place.
The judgment of 10. 4. 2025 in Case C-657/23 (M.K. v Ministry of Agriculture) is available here.
Subsequent decision in the case: Not yet decided
The Supreme Administrative Court referred the following question to the Court of Justice of the European Union for a preliminary ruling:
Are the factual circumstances and legal situation in which the contract for the original performance, on which the follow-on public contracts are based, was concluded to be taken into account in assessing whether the substantive condition for the use of the negotiated procedure without prior publication has been fulfilled, that is to say, whether or not the contracting authority has created a state of exclusivity by its action, for the purposes of Article 31(1)(b) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts?
The text of the reference for the preliminary ruling by order of 12. 9. 2023, čj. 8 As 314/2021-50.
The Court of Justice ruled as follows:
Article 31(1)(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contractsmust be interpreted as meaning that in order to justify the use of the negotiated procedure without prior publication of a contract notice, within the meaning of that provision, the contracting authority may not invoke the protection of exclusive rights where the reason for such protection is attributable to it. The attributing of such a reason is to be assessed on the basis not only of the factual and legal circumstances surrounding the conclusion of a contract for an initial service, but also of all those which characterise the period between the date of concluding that contract and the date on which the contracting authority chooses the procedure to be followed for the award of a subsequent public contract.
The judgment of the Court of Justice of 9 January 2025, C-578/23 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 6. 2. 2025, No. 8 As 314/2021-123, only in Czech).
The Supreme Administrative Court referred the following question to the Court of Justice of the European Unionfor a preliminary ruling:
Should indent five of Article 2(4) of Council Directive 2003/96 be interpreted to the effect that electricity used to power machines used in the processing of quarried limestone, in the form of multi-stage grinding and crushing down to specific grain size, both in the quarry where the quarrying takes place, and in nearby processing facilities, constitutes electricity used for mineralogical processes?
The text of the reference for the preliminary ruling by order of 27 February 2023, no. 8 Afs 297/2021-43 can be found here.
The Court of Justice ruled as follows:
The fifth indent of Article 2(4)(a) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, must be interpreted as meaning that the use of electricity for the operation of machines used for the processing of limestone extracted from a quarry consisting of several stages of grinding and crushing thereof until obtaining fine and coarse limestone fillers does not constitute a use of electricity for mineralogical processes. By contrast, the use of electricity for the operation of machines used to obtain fine limestone fillers whose surface is treated constitutes a use of electricity for the purposes of such processes.
The judgment of the Court of Justice of 18 April 2024, C-127/18 can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 28. 5. 2024, No. 8 Afs 297/2021 - 84, only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice of the European Union for a preliminary ruling:
1) Can an electric mobility vehicle whose maximum speed exceeds 10 km/hr, and which is equipped with a separate adjustable steering column, be classified under heading 8713 of the Combined Nomenclature, despite the Explanatory Notes to the Combined Nomenclature of 6 May 2011 and 4 March 2015?
2) Does Commission Regulation (EC) No 718/2009 apply – aside from the vehicles directly described therein – also to an electric mobility vehicle with the following characteristics:
- Four wheels (the rear pair of wheels are anti-tip);
- An adjustable and rotating seat with armrests,
- A horizontal platform between the front and rear sections of the mobility vehicle;
- An 800 W electric motor, enabling the attainment of a speed of up to 16 km/hr and a range of up to 45 km,
- An electromagnetic brake on the rear wheels;
- Closed handlebars mounted on a separate steering column that can be folded down and equipped with levers for speed selection?
The text of the reference for the preliminary ruling by order of 19 January 2023, no. 10 Afs 134/2020-114 can be found here.
The Court of Justice ruled as follows:
Heading 8713 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013, Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014, and Commission Implementing Regulation (EU) 2020/1577 of 21 September 2020, must be interpreted as meaning that it does not cover a product such as a four-wheel vehicle with an electric motor, which has one seat, which is adjustable and rotating and fitted with armrests, a separate steering column and an automatic electro-magnetic brake on the rear wheels, which are designed to prevent tipping, which is controlled with the use of handlebars of an oval, closed shape, mounted on the steering column, and of which the maximum speed is over 10 km/h, without however, surpassing 16 km/h.
The judgment of 28. 11. 2024 in Joined Cases C-129/23 and C-567/23 (BG Technik v General Directorate of Customs) is available here.
Subsequent decision in the case: Judgment of the Supreme Administrative Court of 21 February 2025, No. 10 Afs 134/2020-161 (available only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1. What degree of distinction between individual data subjects is required by Article 4(1)(c) or Article 6 in conjunction with Article 10 of Directive
2016/680? Is it compliant with the obligation to minimise personal data processing, and with the obligation to distinguish between various categories of data subjects, for national law to permit the collection of genetic data inespect of all persons suspected or accused of having committed an
intentional criminal offence?
2. Is it in accordance with Article 4(1)(e) of Directive 2016/680 if the necessity of continued retention of a DNA profile is assessed, with a reference to the general prevention, investigation, and detection of criminal activity, by Police authorities on the basis of their internal regulations, which frequently means in practice that sensitive personal data is retained for an unspecified period without a maximum limit for the duration of the retention of that personal data being set? If not, by what criteria should the proportionality of the period of the retention of the personal data collected and retained for that purpose be assessed?
3. In the case of particularly sensitive personal data falling under Article 10 of Directive 2016/680, what is the minimal scope of the substantive or procedural conditions for obtaining, retaining, and deleting such data that must be regulated by a ‘provision of general application’ in the law of a
Member State? Can judicial case-law qualify as ‘Member State law’ within the meaning of Article 8(2) in conjunction with Article 10 of Directive 2016/680?
The text of the reference for the preliminary ruling by order of 26 January 2023, no. 7 As 172/2022-49 can be found here.
The Court of Justice has not yet ruled. The proceedings is being carried out under case number C-57/23.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Must Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax be interpreted in the light of the judgment of the Court of Justice of the European Union of 9 December 2006? 2021 in Case C-154/20 Kemwater ProChemie, to the effect that the claim for exemption from value added tax (VAT) on the supply of goods to another Member State of the European Union must be denied without the tax authorities being obliged to prove that the supplier of the goods was involved in VAT fraud, where the supplier has not proved that the goods were supplied to a specific recipient in another EU Member State in the capacity of the taxable person indicated on the tax documents, even though, in the light of the facts and the information provided by the taxable person, the information necessary to verify that the actual recipient in the other EU Member State had that capacity is available?
Preliminary question was raised by order of 26 October 2022, No 4 Afs 291/2021-34.
Court of Justice ruled as follows:
Article 138(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the exemption from value added tax of a supplier established in one Member State, having supplied goods to another Member State, must be refused where that supplier has not shown that the goods were supplied to a recipient having the status of a taxable person in that Member State and that, in the light of the factual circumstances and evidence provided by the supplier, the information necessary to verify that the recipient had that status is lacking.
The judgment of the CJEU of 29 February 2024, C-676/22 can be found here.
The subsequent decision of the Supreme Administrative Court: judgment of 25. 4. 2024, No. 4 Afs 291/2021-84 (only in Czech).
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
When verifying the validity of the interoperable vaccination, test and recovery certificates in relation to the covid-19 disease issued pursuant to Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 April 2005 on the protection of human health. 2021 on a framework for the issuance, validation and recognition of interoperable certificates on vaccination, test and recovery in relation to COVID-19 (EU COVID digital certificate) to facilitate free movement during the COVID-19 pandemic, which are used by the Czech Republic for national purposes, the national application "čTečka" for automated processing of personal data within the meaning of Art. 4, indent 2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and is thus within the material scope of the General Data Protection Regulation pursuant to Article 2(1) thereof?
Preliminary question was raised by order of 12. 10. 2022, No 8 Ao 7/2022-71.
Court of Justice ruled as follows:
The concept of ‘processing’ personal data referred to in Article 4(2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) must be interpreted as including the verification, using a national mobile application, of the validity of interoperable COVID-19 vaccination, test and recovery certificates issued pursuant to Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic, and used by a Member State for national purposes.
The judgment of the Court of Justice of 5 October 2023, Case C-659/22 can be found here.
The subsequent decision of the Supreme Administrative Court: judgment of 30. 11. 2023, No. 8 Ao 7/2022-132 (only in Czech).
The Supreme Administrative Court has referred to the Court of Justice the following question:
Does Article 2 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, in conjunction with Article 12(a) and (c) thereof, preclude [the application of] national case-law according to which a CEO of a trading company is not deemed to be an ‘employee’ for the purpose of the satisfaction of pay claims pursuant to Directive 2008/94/EC, for the sole reason that the CEO as an employee is, at the same time, a member of the statutory body of the same trading company?
Preliminary question was raised by order of 11. 2. 2021 No. 10 Ads 262/2020-34.
Court of Justice ruled as follows:
Article 2(2) and Article 12(a) and (c) of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, as amended by Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015, must be interpreted as precluding national case-law according to which a person who, on the basis of a valid contract of employment under national law, performs concurrently the duties of chief executive officer and of a member of a statutory body of a trading company cannot be regarded as an employee within the meaning of that directive and, therefore, cannot benefit from the guarantees provided for by that directive.
The judgment of the CJEU of 5 May 2022, Case C-101/21 can be found here.
The subsequent decision of the Supreme Administrative Court: judgment of 20. 7. 2022 No. 10 Ads 262/2020-98 (č. 4402/2022 Sb. NSS) only in Czech.
The Supreme Administrative Court has referred to the Court of Justice the following question:
Should Article 3(9) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) be interpreted such that a ‘substantial change’ of a plant includes an extension of the duration of waste disposal at a landfill without the maximum approved dimensions of the landfill or its total potential capacity changing at the same time?
Preliminary question was raised by order of 20.1.2021 No.10 As 322/2020-69.
The Court of Justice ruled that:
Article 3(9) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) must be interpreted as meaning that the mere extension of the duration of waste disposal at a landfill, without any change in the maximum approved dimensions of the installation or its total capacity, does not constitute a ‘substantial change’ within the meaning of that provision.
The judgment of the Court of Justice of 2 June 2022, Case C-43/21 FCC Česká republika v Ministry of Environment can be found here.
The subsequent decision of the Supreme Administrative Court: judgment of 27. 7. 2022, No. 10 As 322/2020-128 (č. 4383/2022 Sb. NSS) only in Czech.
The Supreme Administrative Court has referred to the Court of Justice the following questions:
1. Are products that are subject to excise duty transported pursuant to a suspension arrangement within the meaning of Article 4(c) of Council Directive 92/12/EEC in a situation where a customs office of one Member State agreed to the movement of products under a duty-suspension arrangement from a tax warehouse to a registered trader established in another Member State, even though the conditions for the movement of those products under the duty-suspension arrangement were objectively not met, it having been established at a subsequent stage of the procedure that the registered trader had no knowledge of the movement of the products, due to fraud by third parties?
2. Does the provision of an excise duty guarantee, as provided for by Article 15(3) of Council Directive 92/12/EEC, issued for a purpose other than the movement of products under a duty-suspension arrangement between a tax warehouse and a registered trader established in another Member State preclude the due commencement of movement under a duty-suspension arrangement, if the provision of the guarantee was recorded in the accompanying documents for the movement of the products under the duty-suspension arrangement for the registered trader and confirmed by the customs authority of the Member State?
Preliminary questions were raised by order of 16.12.2020, No. 8 Afs 313/2018-56.
Court of Justice ruled that:
Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 94/74/EC of 22 December 1994, must be interpreted as meaning that the dispatch of excise goods by an authorised warehousekeeper using an accompanying document and with the provision of a compulsory security constitutes the transport of products under a duty suspension arrangement within the meaning of Article 1(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for the holding, movement and monitoring of excise goods, as amended by Council Directive 94/74/EC of 22 December 1994. 4(c) of that Directive, even though, by reason of fraudulent conduct by third parties, the consignee indicated on that accompanying document and in that security is unaware that those products are being dispatched to him until that fact or any other irregularity or infringement is detected by the competent authorities of the Member State concerned.
The fact that the compulsory security lodged by the authorised warehousekeeper for the purposes of that dispatch indicates the name of the authorised consignee but not his status as a registered economic operator shall not affect the regularity of that transport.
The judgement of the Court of Justice of 24 March 2022, C-711/20, Tanquid Polska v General Directorate of Customs can be found here (in French).
The subsequent decision of the Supreme Administrative Court: Judgement of 31. 5. 2022, No. 8 Afs 313/2018-105 (only in Czech)
The Supreme Administrative Court has referred to the Court of Justice the following questions:
1. Does ‘breeding stock’, as defined by Commission Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, include specimens that are the parents of specimens bred by a given breeder, even though that breeder never owned or kept them?
2. If the answer to the first question is that such parent specimens do not constitute a part of the breeding stock, are competent bodies authorised to verify, in examining compliance with the condition set in Article 54(2) of Commission Regulation (EC) No 865/2006, consisting of the establishment of stock legally and, at the same time, in a manner not detrimental to the survival of wild specimens, the origin of those parent specimens and to infer on that basis whether the breeding stock has been established in accordance with the rules set out in Article 54(2) of the Regulation?
3. In examining compliance with the condition set out in Article 54(2) of Commission Regulation (EC) No 865/2006, consisting of the establishment of stock legally and, at the same time, in a manner not detrimental to the survival of wild specimens, can further circumstances of the case be taken into consideration (in particular, good faith in the transfer of the specimens and the legitimate expectation that trading in their potential offspring will be permitted, and potentially also the less stringent legislation applicable in the Czech Republic prior to the country’s accession to the European Union)?
Preliminary questions were raised by order of 25 November 2020, No. 8 As 175/2018-45.
The Court of Justice ruled that:
1. Article 1(3) of Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein, must be interpreted as meaning that the concept of ‘breeding stock’, within the meaning of that provision, does not include the ancestors of specimens bred in a breeding operation which have never been owned or kept by that operation.
2. Article 54(2) of Regulation No 865/2006, read in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union and the principle of protection of legitimate expectations, must be interpreted as precluding a specimen, kept by a breeder, of a species of animal referred to in Annex A to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, from being regarded as having been born and bred in captivity, within the meaning of Article 8(3) of that regulation, where the ancestors of that specimen, which do not form part of the breeding stock of that breeder, were acquired by a third party before the entry into force of those regulations in a manner which is detrimental to the survival of the species concerned in the wild.
The judgment of the Court of Justice of 8 September 2022, Case C-659/20 can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 17. 10. 2022, No. 8 As 175/2018-135). Only in Czech.
The Extended Chamber of Supreme Administrative Court has referred to the Court of Justice the following questions:
1. Is it compatible with Directive 2006/112/EC (1) for exercise of the right to deduct input value added tax to be conditional on the taxable person fulfilling the obligation to prove that the taxable supply received was made by another specific taxable person?
2. If the first question is answered in the affirmative and the taxable person fails to fulfil that evidentiary obligation, can the right to deduct input tax be refused without it being established that that taxable person knew or could have known that by acquiring the goods or services in question he was participating in tax fraud?“
Preliminary questions were raised by order of 11 March 2020, No. 1 Afs 334/2017-54.
The Court of Justice ruled that:
Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the right to deduct input value added tax (VAT) must be refused, without the tax authorities having to prove that the taxable person committed VAT fraud or that he or she knew, or ought to have known, that the transaction relied on to establish the right of deduction was connected with such fraud, where, the true supplier of the goods or services concerned not having been identified, that taxable person fails to adduce proof that that supplier had the status of taxable person, provided that, taking into account the factual circumstances and the evidence produced by that taxable person, the information needed to verify that the true supplier had that status is lacking.
The judgment of the Court of Justice of 9 December 2018, C-154/20 Kemwater ProChemie v. Appellate Tax Directorate can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of the Extended Chamber of 23. 3. 2022 No. 1 Afs 334/2017-208 (4336/2022 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court has referred to the Court of Justice the following question:
1. Does Article 56 et seq. of the Treaty on the Functioning of the European Union apply to national legislation (a binding measure of general application in the form of a municipal decree) prohibiting a certain service in part of one municipality, simply because some of the customers of a service provider affected by that legislation may come or do come from another Member State of the European Union?
2. If so, is a mere assertion of the possible presence of customers from another Member State sufficient to trigger the applicability of Article 56 of the Treaty on the Functioning of the European Union, or is the service provider obliged to prove the actual provision of services to customers who come from other Member States?
Is it of any relevance to the answer to the first question that:
(a) the potential restriction on the freedom to provide services is significantly limited in both geographical and substantive terms (potential applicability of a de minimis exception);
(b) it does not appear that the national legislation regulates in a different manner, in law or in fact, the position of entities providing services primarily to citizens of other Member States of the European Union, on the one hand, and that of entities focusing on a domestic clientele, on the other?
The Court of Justice ruled that:
Article 56 TFEU must be interpreted as meaning that it applies to the situation of a company established in a Member State which has lost its licence to operate games of chance following the entry into force, in that Member State, of legislation determining the places in which it is permitted to organise such games, which is applicable without distinction to all service providers operating in that Member State, regardless of whether those services are provided to nationals of that Member State or to those of other Member States, where some of its customers come from a Member State other than the Member State in which it is established.
The judgment of the Court of Justice of 3. 12. 2020 in case C-311/19 (BONWER WIN proti Ministerstvu financí) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of extended chamber of 10. 2. 2021, No. 5 As 177/2016-139 and judgement of Supreme Administrative Court of 19. 3. 2021, No. 5 As 177/2016-161). Both only in Czech.
The Supreme Administrative Court has referred to the Court of Justice the following question:
Is it consistent with European Union law and in particular with the principle of VAT neutrality for a Member State to adopt a measure which makes the assessment and payment of part of a VAT deduction claimed conditional on the completion of a procedure applying to all taxable transactions in a given tax period?
The Court of Justice ruled that:
Articles 179, 183 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in the light of the principle of fiscal neutrality, must be interpreted as not precluding national legislation which does not allow the tax authority, before the end of a tax inspection procedure relating to a value added tax (VAT) return showing an excess for a given tax period, to refund that part of the excess relating to transactions which are not covered by that procedure at the time it was initiated, provided that it is not possible to establish in a clear, precise and unequivocal manner that a VAT excess, the amount of which may potentially be lower than the amount relating to the transactions not covered by that procedure, will exist regardless of the outcome of that procedure, which is a matter for the referring court to ascertain.
The judgement of the Court of Justice of 14 May 2020, C-446/18, can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 13. 8. 2020, čj. 1 Afs 271/2017-191 (č. 4163/2021 Sb. NSS)) can be found here.
The Supreme Administrative Court has referred to the Court of Justice the following question:
Can the concept of freedom of establishment within the meaning of Article 49 TFEU be held to cover a simple transfer of the place of a company’s management from one Member State to another Member State?
If so, is it contrary to Article 49, Article 52 and Article 54 TFEU for national law not to allow an entity from another Member State, when relocating its place of business or place of management to the Czech Republic, to claim a tax loss incurred in that other Member State?
The Court of Justice ruled that:
1. Article 49 TFEU must be interpreted as meaning that a company incorporated under the law of a Member State, which transfers its place of effective management to another Member State without that transfer affecting its status as a company incorporated under the law of the first Member State, may rely on that article for the purposes of contesting a refusal in the second Member State to defer losses prior to that transfer.
2. Article 49 TFEU must be interpreted as not precluding legislation of a Member State which excludes the possibility for a company, which has transferred its place of effective management and, as a result, its tax residency to that Member State, from claiming a tax loss incurred, prior to that transfer, in another Member State, in which it has retained its registered seat.
The judgment of the Court of Justice of 27 February 2020, C-405/18, can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 13. 3. 2020, No. 5 Afs 138/2017-79 (č. 4014/2020 Sb. NSS)) can be found here(only in Czech).
The Supreme Administrative Court lodged a request for a preliminary ruling concerning the interpretation of Articles 131 and 146 of Council Directive 2006/112/EC on the common system of value-added tax in a case concerning the refusal of the tax authorities to exempt from value-added tax various supplies of goods to a destination outside the European Union by the resolution No. 8 Afs 252/2016-60 of 28 March 2018.
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
Is it permissible to render the right to a tax exemption from value added tax on the exportation of goods (Article 146 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax) (‘the Directive’) conditional on the fact that the goods must first be placed under a particular customs procedure (§ 66 zákona č. 235/2004 Sb., o dani z přidané hodnoty) (Paragraph 66 of Law No 235/2004 on Value Added Tax)?
The full text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 146(1)(a) in conjunction with Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding a national legislative provision from making the exemption from value added tax for goods intended to be exported outside the European Union conditional on the goods being placed under the export customs procedure, in a situation in which it is established that the substantive conditions of exemption, in particular the condition that the goods concerned actually leave the territory of the European Union, are satisfied.
The judgment of the Court of Justice of 28 March 2019, C-275/18 can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 25. 6. 2019 No. 8 Afs 252/2016-96) can be found here (only in Czech).
The Supreme Administrative Court lodged a request for a preliminary ruling concerning the interpretation of the principles of fiscal neutrality and proportionality, and of Article 90 of Council Directive 2006/112/EC on the common system of value-added tax in a case concerning the Appellate Finance Directorate's refusal to grand A-PACK CZ an adjustment of the amount of value-added tax paid in respect of unpaid debts considered to be irrecoverable as a result of the debtor's insolvency.
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1. Can Article 90(2) of Council Directive 2006/112/EC 1 of 28 November 2006 on the common system of value added tax be interpreted, having regard to the principle of fiscal neutrality and the principle of proportionality, in such a way that it allows Member States by way of derogation to lay down conditions which for certain cases exclude a reduction of the taxable amount in the event of total or partial non-payment of the price?
2. If the answer to Question 1 is in the affirmative, is national legislation contrary to the purpose of Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax if it does not allow payers of value added tax to make a correction to the amount of tax where tax became chargeable on a taxable supply to another taxpayer who paid for it only in part or not at all, and who subsequently ceased to be a value added tax payer?
The full text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
"Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a taxable person cannot correct the value added tax (VAT) taxable amount, in the case of total or partial non-payment, by its debtor, of a sum due in respect of a transaction subject to that tax, if the debtor is no longer a taxable person for the purposes of VAT."
The judgment of the Court of Justice of 8 May 2019, C-127/18 can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 27. 6. 2019, No. 10 Afs 71/2016-102 (č. 3912/2019 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court has referred to the Court of Justice the following question:
Does the interpretation of Article 9 of Directive 2013/33/EU of the European Parliament and of the Council (OJ 2013 L 180, p. 96) in conjunction with Articles 6 and 47 of the Charter of Fundamental Rights of the European Union preclude national legislation which does not allow the Nejvyšší správní soud (Supreme Administrative Court) to review a judicial decision concerning detention of a foreign national after the foreign national has been released from detention?
The Supreme Administrative Court withdrew the request for preliminary ruling by the resolution No. 10 Azs 252/2017-68 of 31 January 2019. The Constitutional Court repealed the contentious provisions of the Asylum Act and the Act on the Residence of Foreign Nationals in the Czech Republic. The judgment of the Constitutional Court No. Pl. ÚS 41/17 of 27 November 2018 can be found here (only in Czech).
The President of the Court of Justice has ordered that the case be removed from the register.
The Supreme Administrative Court lodged a request for a preliminary ruling in a case concerning excise duties by the resolution No. 9 Afs 137/2016-60 of 29 June 2017.
The request for a preliminary ruling has been made in proceeding concerning the deduction of value-added tax in respect of purchases of fuel, form Czech suppliers, which was transported under an excise duty suspension arrangement from Austria to the Czech Republic.
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1. Must any taxable person be regarded as a taxable person within the meaning of Article 138(2)(b) of Council Directive 2006/112/EC on the common system of value added tax (‘the VAT Directive’)? If not, to which taxable persons does that provision apply?
2. If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive applies to a situation such as that in the main proceedings (that is, the acquirer of the products is a taxable person registered for tax), must that provision be interpreted as meaning that, where the dispatch or transport of those products takes place in accordance with the relevant provisions of Council Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (‘the Excise Duty Directive’), a supply connected with a procedure under the Excise Duty Directive must be regarded as a supply entitled to exemption under that provision, even though the conditions for exemption under Article 138(1) of the VAT Directive are not otherwise satisfied, having regard to the assignment of the transport of goods to another transaction?
3. If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive does not apply to a situation such as that in the main proceedings, is the fact that the goods are transported under an excise duty suspension arrangement decisive for deciding the question of which of several successive supplies the transport is to be ascribed to for the purposes of the right to exemption from VAT under Article 138(1) of the VAT Directive?
The full text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
1. Article 2(1)(b)(iii) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that it applies to intra-Community acquisitions of excise goods, in respect of which the excise duty is chargeable in the Member State of destination of the dispatch or transport of those goods, carried out by a taxable person whose other acquisitions are not subject to value added tax pursuant to Article 3(1) of that directive.
2. Article 2(1)(b)(iii) of Directive 2006/112 must be interpreted as meaning that, in a chain of successive transactions which gave rise only to a single intra-Community transport of excise goods under an excise duty suspension arrangement, the acquisition carried out by the trader liable for payment of the excise duty in the Member State of destination of the dispatch or transport of those goods cannot be classified as an intra-Community acquisition subject to value added tax under that provision, where that transport cannot be ascribed to that acquisition.
3. Article 2(1)(b)(i) of Directive 2006/112 must be interpreted as meaning that, where there is a chain of successive acquisitions concerning the same excise goods and which gave rise only to a single intra-Community transport of those goods under an excise duty suspension arrangement, the fact that those goods are transported under that arrangement does not constitute a decisive factor in determining to which acquisition the transport is to be ascribed for the purposes of applying value added tax under that provision.
The judgment of the Court of Justice of 19 December 2018 AREX CZ v Apellate tax directorate (C-414/17) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 30. 5. 2019, No. 9 Afs 137/2016-176 (č. 3901/2019 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning freedom of establishment and approximation of laws by the resolution No. 9 As 176/2016-50 of 2 December 2016.
The request for a preliminary ruling has been made in proceeding concerning an inspection initiated by the latter in respect of Corporate Companies’ compliance with the requirements set out in the national law transposing Directive 2005/60.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Do persons who, by way of their business activity, sell companies already entered in the Register of Companies and formed for the purposes of sale (‘ready-made companies’), whose sale is realised by the transfer of a holding in the subsidiary company which they are selling, fall within the scope of Article 2(1), point 3(c) of Directive 2005/60/EC of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing in conjunction with Article 3(7)(a) thereof?
The text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 2(1), point 3(c) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, read in conjunction with Article 3, point 7(a) of that directive, must be interpreted as meaning that a person, such as that at issue in the main proceedings, whose commercial activity consists in selling companies which it formed itself, without any prior request on the part of its potential clients, for the purposes of sale to those clients, by means of a transfer of its shares in the capital of the company being sold, falls within the scope of those provisions.
The judgment of the Court of Justice of 17 January 2018 CORPORATE COMPANIES s. r. o. v Ministry of Finance (C-676/16) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 25. 1. 2018, čj. 9 As 176/2016-121) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning asylum policy by the resolution No. 5 Azs 189/2015-36 of 16 June 2016.
The request for a preliminary ruling has been made in proceeding between M and the Ministry of Interior concerning the decision revoking his right to asylum.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Is Article 14(4) and (6) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted invalid on the grounds that it infringes Article 18 of the Charter of Fundamental Rights of the European Union, Article 78(1) of the Treaty on the Functioning of the European Union and the general principles of EU law under Article 6(3) of the Treaty on European Union?
The text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Consideration of Article 14(4) to (6) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, has disclosed no factor of such a kind as to affect the validity of those provisions in the light of Article 78(1) TFEU and Article 18 of the Charter of Fundamental Rights of the European Union.
The judgment of the Court of Justice (Grand Chamber) of 14 May 2019, M. v Ministerstvo vnitra (C-391/16) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 23. 4. 2020, No. 5 Azs 189/2015-127 (č. 4084/2020 Sb. NSS)). can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning excise duty by the resolution No. 5 Afs 26/2015–29 of 29 October 2015.
The request for a preliminary ruling has been made in proceeding concerning the confiscation of goods considered to be manufactured tobacco subject to excise duty.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Where dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof which have undergone primary drying and controlled dampening and in which the presence of glycerine is detected are capable of being smoked after simple preparation (by means of crushing or hand-cutting), can they be regarded as manufactured tobacco within the meaning of Article 2(1)(c)(ii) or, as the case may be, Article 5(1)(a) of Council Directive 2011/64/EU on the structure and rates of excise duty applied to manufactured tobacco (codification)?
If the answer to the first question is in the negative, does Article 5, in conjunction with Article 2, of Council Directive 2011/64/EU on the structure and rates of excise duty applied to manufactured tobacco (codification) preclude national legislation of a Member State which extends excise duty on manufactured tobacco to tobacco that is not referred to in Articles 2 and 5 of Council Directive 2011/64/EU on the structure and rates of excise duty applied to manufactured tobacco (codification) and that, while not intended for smoking, can be smoked (is capable of and appropriate for being smoked) and has been prepared for sale to the final consumer?
The text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 2(1)(c) and Article 5(1) of Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as meaning that dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof which have undergone primary drying and controlled dampening, which contain glycerine and which are capable of being smoked after simple processing by means of crushing or hand-cutting, fall within the definition of ‘smoking tobacco’ for the purpose of those provisions.
The judgment of the Court of Justice of 6 April 2017, Eko-Tabak s. r. o. v Generální ředitelství cel (C-638/15) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 24. 8. 2017, No. 5 Afs 26/2015-103) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning the evaluation of the risk of absconding of a foreigner by the resolution No. 10 Azs 122/2015–88 of 24 September 2015.
The request for a preliminary ruling has been made in an appeal on o point of law brought by the Police Force of the Czech Republic, Regional Police Directorate of the Ústí nad Labem Region, Foreigners Police Section, concerning the annulment, by a lower court, of the decision taken by Foreigners Police Section to detain “Al Chodors” for 30 days to transfer them to Hungary.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Does the sole fact that a law has not defined objective criteria for assessment of a significant risk that a foreign national may abscond (Article 2(n) of Regulation No 604/2013) render detention under Article 28(2) of that regulation inapplicable?
The text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 2(n) and Article 28(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction, must be interpreted as requiring Member States to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. The absence of such a provision leads to the inapplicability of Article 28(2) of that regulation.
The judgment of the Court of Justice of 5 March 2017, Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v A. Ch. (C-528/15) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 20. 4. 2017, No. 10 Azs 122/2015-150 (č. 3602/2017 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning value-added tax by the resolution No. 8 Afs 96/2013-42 of 7 July 2015.
The request has been made in proceedings regarding the imposition of the amount of VAT borne directly by the various cost components.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
1 a) Is the supply of a horse by its owner (who is a taxable person) to a race organiser for the purpose of the horse's participation in a race a supply of services for consideration within the meaning of Article 2(1)(c) of Directive 2006/112/EC1 on the common system of value added tax and therefore a supply subject to VAT?
1 b) If so, is the consideration to be regarded as a prize for placing in a race (which is not received by every horse taking part in the race) or the receipt of a service consisting in the opportunity for a horse to take part in a race, which is provided by the race organiser to the owner of the horse, or other consideration?
1 c) If the answer is in the negative, is that fact in itself a reason for reducing the input VAT deduction on the taxable supplies received which are spent on the preparation of the person's own horses for racing, or is the participation of the horse in the race to be regarded as part of the economic activity of a person who is engaged in the business of breeding and training racehorses, both his own and others', and the costs of breeding his own horses and their participation in races to be included in the general expenses related to the economic activity of that person? If the answer to this sub-question is in the affirmative, is the cost of the placement to be included in the tax base and output VAT to be paid, or is it income which does not affect the VAT base at all?
2 a) If several partial services are to be regarded as a single supply for VAT purposes, what are the criteria for determining their relationship to each other, i.e. for determining whether they are equivalent to each other or whether they are a supply in the relationship between the main and ancillary services? Is there any hierarchy between those criteria in terms of their order and weighting?
2 b) Is Article 98 of Directive 2006/112/EC, read in conjunction with Annex III to that directive, to be interpreted as precluding the classification of a service at the reduced rate where it consists of two partial supplies which are to be regarded as a single supply for VAT purposes, and at the same time those supplies are equivalent in relation to each other, one of which cannot in itself be classified in any of the categories listed in Annex III to Directive 2006/112/EC?
2 c) If the answer to Question 2(b) is in the affirmative, does the combination of the sub-service of authorisation to use sporting facilities with the sub-service of a racehorse trainer, in circumstances such as those in the present case, preclude that service as a whole from being included in the reduced rate of VAT referred to in point 14 of Annex III to Directive 2006/112/EC?
2 d) If the application of the reduced rate is not excluded by the answer to question 2(c), what effect will the fact that the taxable person provides, in addition to the service of use of the sporting facilities and the service of trainer, stabling, feeding and other care of the horses have on the classification at the relevant VAT rate? Should all these sub-supplies be treated as a single unit sharing a common tax regime for VAT purposes?
The text of the request for preliminary ruling can be found here.
The Court of Justice ruled:
1. Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that the supply of a horse by its owner, who is a taxable person for value added tax purposes, to the organiser of a horse race for the purpose of the horse’s participation in that race does not constitute a supply of services for consideration within the meaning of that provision where it does not give rise to a payment awarded for participation or any other direct remuneration and where only the owners of horses which are placed in the race receive a prize, even if that prize is determined in advance. On the other hand, such a supply of a horse for the purposes of its participation in the race constitutes a supply of services for consideration where it gives rise to the payment, by the organiser, of remuneration irrespective of whether or not the horse in question is placed in the race.
2. Directive 2006/112 must be interpreted to the effect that a taxable person, who breeds and trains his own race horses and those of other owners, has the right to deduct input value added tax on the transactions relating to the preparation for horse races of his own horses and the participation of his own horses in races, on the ground that the costs pertaining to those transactions are part of the general costs linked to his economic activity, provided that the costs incurred in each of those transactions have a direct and immediate link with that overall activity. That may be the case if the costs thus incurred pertain to race horses actually intended for sale or if the participation of those horses in races is, from an objective point of view, a means of promoting the economic activity, this being a matter for the referring court to determine.
In a situation where such a right to deduct exists, any prize won by the taxable person on account of the placing of one of his horses in a race is not to be included in the taxable amount for value added tax purposes.
3. Article 98 of the Directive 2006/112, read in conjunction with point 14 of Annex III thereto, must be interpreted to the effect that the reduced rate of value added tax may not be applied to a single composite supply of services, made up of several components relating, inter alia, to the training of horses, the use of sporting facilities and the stabling, feeding and other care provided to the horses where the use of the sporting facilities, within the meaning of point 14 of Annex III to that directive, and the training of the horses constitute two components of that composite supply having equal status or where the training of the horses constitutes the main component of that supply, this being a matter for the referring court to assess.
The judgment of the Court of Justice of 11 November 2016, Odvolací finanční ředitelství v Baštová (C-432/15) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 29. 3. 2017, No, 8 Afs 96/2013-111) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning electronic communication services by the resolution No. 7 As 131/2013-86 of 23 October 2014 as subsequently amended by the rectifying resolution No. 7 As 131/2013-99 of 9 December 2014.
Are Articles 12 and 13 of Directive 2002/22/EC1 of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services ('the Directive') to be interpreted as precluding the principle of the 'net cost' of the provision of that service, as set out therein, from precluding the inclusion of a 'reasonable profit' of the provider of that service in the price of the net cost of that service?
If the answer to the first question is in the affirmative, do those provisions of the Directive (Articles 12 and 13) have direct effect? If Articles 12 and 13 of the Directive have direct effect, can that effect be invoked against a company in which a Member State holds (controls) 51 % of the shares - here O2 Czech Republic a.s. (a 'state entity') - or not?If the answers to questions 1 to 3 are in the affirmative, can the Directive also be applied to relations arising in the period prior to the Czech Republic's accession to the European Union (from 1 January 2004 to 30 April 2004)?
The text of a request for preliminary ruling can be found here.
The Court of Justice ruled as follows:
1. Articles 12 and 13 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding the net cost of the universal service obligation including the ‘reasonable profit’ of the provider of that service, fixed at the rate of return on equity capital that would be required by an undertaking comparable to the universal service provider considering whether or not to provide the service of general economic interest for the whole duration of the period of entrustment, taking into account the level of risk.
2. Articles 12 and 13 of Directive 2002/22 must be interpreted as having direct effect and they may be relied on directly before a national court by individuals to challenge a decision of a national regulatory authority.
3. Directive 2002/22 must be interpreted to the effect that it is not applicable for the purpose of determining the amount of the net cost of the obligations relating to the universal service provided by the designated undertaking during the period prior to the Czech Republic’s accession to the European Union, that is to say, for the year 2004, between 1 January and 30 April 2004.
The judgment of the Court of Justice of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C-508/14) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 29. 2. 2016, No. 7 As 131/2013-156 (č. 3404/2016 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court requested a preliminary ruling in a case concerning charges for public radio broadcasting by the decision No. 5 Afs 124/2014-79 of 18 December 2014.
The request has been made in proceeding between the Appellate Tax Directorate and Český rozhlas (Czech Radio) concerning value-added tax (VAT) for which it was a liable connection with its public broadcasting activity.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Can public sector broadcasting, financed by compulsory statutory charges of the amount set by the law, on the basis of ownership of a radio receiver, possession thereof or entitlement to use it on other legal grounds, be regarded as the ‘provision of a service against payment’ within the meaning of Article 2(1) of the Sixth Council Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, which must be exempted from VAT in accordance with Article 13A(1)(q) of that directive, or is it a non-economic activity which is not subject to VAT at all under Article 2 of the Sixth Directive, and to which exemption from VAT in accordance with Article 13A(1)(q) of that directive does not therefore apply?
The text of the request for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 2(1) of Sixth Council Directive 77/388/EEC 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 must be interpreted as meaning that public broadcasting activities, such as those at issue in the main proceedings, funded by a compulsory statutory charge paid by owners or possessors of a radio receiver and carried out by a radio broadcasting company created by law, do not constitute a supply of services ‘effected for consideration’ within the meaning of that provision and therefore fall outside the scope of that directive.
The judgement of Court of Justice of 22 June 2016, Odvolací finanční ředitelství v Český rozhlas (C-11/15) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 30. 8. 2016, No. 5 Afs 124/2014-178 (č. 3506/2017 Sb. NSS)) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning freedom of establishment by the resolution No. 2 Afs 51/2014-73 of the 13th August 2014.
The reference has been made in proceedings concerning a decision refusing to reimburse PST CLC customs duty that PSTCLC has paid for the importation products intended for use in computers consisting of a heat sink and a fan to release these products for free circulation.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Was Commission Regulation (EC) No 384/2004 of 1 March 2004 concerning the classification of certain goods in the Combined Nomenclature valid at the time of its effectiveness from 22 March 2004 to 22 December 2009 insofar as point 2 of the annex thereto is concerned, which specifies that products consisting of a heat sink and a fan fall within CN Code 8414 59 30, and was it thus applicable to the present case?
The text of the request for a preliminary ruling can be found here.
The Courtof Justice ruled as follows:
1. Point 2 of the table in the annex to Commission Regulation (EC) No 384/2004 of 1 March 2004 concerning the classification of certain goods in the Combined Nomenclature was invalid during the time in which it was in force, namely from 22 March 2004 to 22 December 2009.
2. In so far the products at issue in the main proceedings consist of a heat sink and a fan and are intended exclusively for use in computers, which is a matter to be ascertained by the national court, they must be classified for tariff purposes on the basis of the general rules for the interpretation of the Combined Nomenclature provided for in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1214/2007 of 20 September 2007.
The full text order of the Court of Justice of 11 June 2015, PST CLC, a.s. v. Generální ředitelství cel (C-405/14) can be found here (only in French).
The order (information) of the Court of Justice of 11 June 2015, PST CLC (C-405/15) can be found here.
The subsequent decision of the Supreme Administrative Court can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning freedom of establishment and operation of bus town transport by the resolution No. 4 As 148/2013-94 of the 6. 6. 2014.
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
Must Article 49 in conjunction with Article 52 of the Treaty on the Functioning of the European Union be interpreted as precluding the application of national provisions which require a carrier whose seat is in another Member State and is established in the Czech Republic by means of an organisational unit to obtain, in addition to the licences and concessions authorising a carrier with its seat in the Czech Republic to operate domestic scheduled services (urban public transport), in order to pursue the same activity, also a special authorisation, the issue of which is at the discretion of the administrative authorities?
Is it relevant for the answer to Question 1 that this is a case of urban public transport operated under the public service obligation system on the basis of a public service contract for consideration paid from public funds within the meaning of Regulation (EC) No 1370/2007 1 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70?
May Article 3(3) of Council Regulation (EC) No 12/98 2 of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State, in conjunction with Article 91 of the Treaty on the Functioning of the European Union, be interpreted as allowing a Member State to restrict the operation of urban public transport services by a carrier whose seat is in another Member State in the manner described in Question 1?
The text of a reference for a preliminary ruling can be found here.
The Court of Justice ruled as follows:
Article 49 SFEU must be interpreted as precluding legislation of a Member State requiring only foreign carriers which have a branch office in that Member State to obtain special authorisation issued on a discretionary basis by the competent authorities in order to operate an urban public transport service by road in the territory of that Member State alone.
The order of the Court of Justice of 21 May 2015, Slovenská autobusová doprava Trnava a.s. v Krajský úřad Olomouckého kraje (C-318/14) can be found here.
The subsequent decision of the Supreme Administrative Court can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning taxation of emission allowances by the resolution No. 1 Afs 6/2013-46 of the 18th December 2013.
The request has been made in proceedings concerning the payment of a tax on allocation of greenhouse gas emission allowance for the years 2011 and 2012.
The Supreme Administrative Court referred the following question to the Court of Justice for a preliminary ruling:
Must Article 10 of Directive 2003/87/EC 1 of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC be interpreted as preventing the application of provisions of national law which make the allocation free of charge of emission allowances in the relevant period subject to gift tax?
The text of the reference for a preliminary ruling can be found here.
The Court of Justice ruled that:
Article 10 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC must be interpreted as precluding the imposition of a gift tax such as that at issue in the main proceedings if it does not respect the 10% ceiling on the allocation of emission allowances for consideration laid down in that article, which is a matter for the referring court to determine.
The judgment of the the Court of Justice of 26 February 2015, ŠKO-ENERGO, s. r. o. v. Appellate Financial Directorate (C-43/14) can be found here.
The subsequent decision of the Supreme Administrative Court (judgement of 9. 7. 2015, No. 1 Afs 6/2013 - 184) can be found here (only in Czech).
The Supreme Administrative Court lodged a reference for a preliminary ruling in a case concerning coordination of social security systems No. 6 Ads 1/2012-38 of the 2. 5. 2013.
The reference has been made in proceedings concerning a decision withdrawing entitlement of claimant to family benefits on the ground that the Czech Republic does not have the competence to grant such benefits.
Should Article 76 of Council Regulation (EEC) No 1408/71 1 on the application of social security schemes to employed persons and their families moving within the Community be interpreted to mean that the Czech Republic is a state competent to provide a family benefit – the parental allowance – in circumstances such as those of the present case, i.e. where the applicant and her husband and child live in France, the husband works there, it is the place in which their interests are centred, and the applicant has drawn fully on the PAJE (prestation d’accueil du jeune enfant) family benefit in France?
If the answer to the first question is in the affirmative:
Should the transitional provisions of Regulation (EC) No 883/2004 2 of the European Parliament and of the Council on the coordination of social security systems be interpreted to mean that they require the Czech Republic to provide the family benefit after 30 April 2010 even though the competence of a state may be affected, as of 1 May 2010, by the new definition of residence under Regulation (EC) No 987/2009 3 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (Article 22 et seq.)?
If the answer to the first question is in the negative:
Should Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems (in particular Article 87) be interpreted to mean that, in circumstances such as those of the present case, the Czech Republic is the state competent to provide a family benefit as of 1 May 2010?
The text of the reference for a preliminary ruling can be found here.
The Court of Justice ruled that:
1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008, in particular Article 13 thereof, must be interpreted as precluding a Member State from being regarded as the competent State for the purpose of granting a family benefit to a person on the sole ground that the person concerned is registered as being permanently resident in its territory, where neither that person nor the members of his family work or habitually reside in that Member State. Article 13 of that regulation must be interpreted as also precluding a Member State which is not the competent State in so far as concerns the person in question from granting family benefits to such a person unless there are specific and particularly close connecting factors between the situation at issue and the territory of that first Member State.
2) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, in particular Article 11 thereof, must be interpreted as precluding a Member State from being regarded as the competent State for the purpose of granting a family benefit to a person on the sole ground that the person concerned is registered as being permanently resident in its territory, where neither that person nor the members of his family work or habitually reside in that Member State.
The judgment of the Court of Justice of 11 September 2014, K. B. v. Ministerstvo práce a sociálních věcí (C-394/13) can be found here.
The subsequent decision of the Supreme Administrative Court can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owners of the home be classified as the processing of personal data ‘by a natural person in the course of a purely personal or household activity’ within the meaning of Article 3(2) of Directive 95/46/EC, even though such a system monitors also a public space?
The text of the reference for the preliminary ruling (order of 20 March 2013, no. 1 As 113/2012-59) can be found here.
The Court of Justice ruled as follows:
The second indent of Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.
The judgment of the Court of Justice of 11 December 2014 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 25 February 2015, no. 1 As 113/2012-133) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Do Articles 18, 45, 49 and 56 of the Treaty on the Functioning of the European Union preclude provisions under which an employer established in one Member State is obliged to make advance payments of tax on the income of workers (nationals of another Member State) temporarily assigned to the employer by a temporary work agency established in another Member State through a branch established in the first Member State?
2) Do Articles 18, 45, 49 and 56 of the Treaty on the Functioning of the European Union preclude provisions under which the basis of assessment of such workers is set at a flat rate of at least 60% of the amount invoiced by the temporary work agency in cases where the intermediation fee is included in the amount invoiced?
3) If the answer to the first or second question is yes in the affirmative, is it possible, in a situation such as the present case, to restrict the said fundamental freedoms for reasons of public policy, public security or public health, or for the effectiveness of fiscal supervision?
The text of the reference for the preliminary ruling (order of 17 January 2013, no. 1 Afs 38/2012-53) can be found here.
The Court of Justice joined this case with case C-53/13 (Strojírny Prostějov v Odvolací finanční ředitelství), in which a similar preliminary question was raised by order of the Regional Court in Ostrava of 16 January 2013, no. 22 Af 159/2011-41. Subsequently, the Court of Justice ruled as follows:
Article 56 TFEU precludes legislation, such as that at issue in the main proceedings, under which companies established in one Member State using workers employed and seconded by temporary employment agencies established in another Member State, but operating in the first Member State through a branch, are obliged to withhold tax and to pay to the first Member State an advance payment on the income tax due by those workers, whereas the same obligation is not imposed on companies established in the first Member State which use the services of temporary employment agencies established in that Member State.
The judgment of the Court of Justice of 19 June 2014 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 24 July 2014, no. 1 Afs 38/2012-127) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Is the following health claim: 'The preparation also contains calcium and Vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures', a reduction of disease risk claim within the meaning of Article 2(2)(6) of Regulation (EC) No 1924/2006 of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, even though it is not expressly implied in this claim that the consumption of that preparation would significantly reduce a risk factor in the development of disease mentioned?
2) Does the concept of a trade mark or brand name within the meaning of Article 28(2) of Regulation (EC) No 1924/2006 of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, also include a commercial communication on the packaging of the product?
3) Should the transitional provision in Article 28(2) of Regulation (EC) No 1924/2006 of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, be interpreted to refer to (any) foods which existed prior to 1 January 2005, or to refer to foods to which a trade mark or brand name was affixed and which existed in that form before that date?
The text of the reference for a preliminary ruling (order of 10 May 2012, no. 6 Ads 167/2011-82) can be found here.
The Court of Justice ruled as follows:
1) Article 2(2)(6) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, must be interpreted as meaning that, in order to be considered a ‘reduction of disease risk claim’ within the meaning of that provision, a health claim need not necessarily expressly state that the consumption of a category of food, a food or one of its constituents ‘significantly’ reduces a risk factor in the development of a human disease.
2) Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as meaning that a commercial communication appearing on the packaging of a food may constitute a trade mark or brand name, within the meaning of that provision, provided that it is protected, as a mark or as a name, by the applicable legislation. It is for the national court to ascertain, having regard to all the legal and factual considerations of the case before it, whether that communication is indeed a trade mark or brand name thus protected.
3) Article 28(2) of Regulation No 1924/2006, as amended by Regulation No 116/2010, must be interpreted as referring only to foods bearing a trade mark or brand name which must be considered a nutrition or health claim within the meaning of that regulation and which, in that form, existed before 1 January 2005.
The judgment of the Court of Justice of 18 July 2013 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 17 October 2013, no. 6 Ads 167/2011-151) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Does Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community 2 (Regulation (EC) No 883/2004 of the European Parliament and of the Council on the coordination of social security systems) exclude from its scope ratione personae a citizen of the Czech Republic who, in circumstances such as those of the present case, before 1.1.1993 was subject to the legislation governing pensions insurance of a former State (the Czech and Slovak Federal Republics) and those periods, in accordance with Article 20 of the Agreement on social security concluded on 29.10.1992 between the Czech [Republic] and the Slovak Republic referred to in Annex III to Regulation (EEC) No 1408/71 of the Council (Annex II to Regulation (EC) No 883/2004 of the European Parliament and of the Council), are regarded as periods under the Slovak Republic and, under the national rules established by the Constitutional Court of the Czech Republic, simultaneously also as periods under the Czech Republic?
If the answer to question (1) is in the negative:
2) Does Article 18 of the Treaty on the Functioning of the European Union in conjunction with Article 4(2) of the Treaty on European Union and with Article 3(1) of Regulation (EEC) No 1408/71 of the Council (or Article 4 of Regulation (EC) No 883/2004 of the European Parliament and of the Council) prevent the authorities in the Czech Republic, in circumstances such as those of the present case, from offering preferential treatment (a supplement to old age benefit where the amount of that benefit granted under Article 20 of the Agreement on social security concluded on 29.10.1992 between the Czech [Republic] and the Slovak Republic and under Regulation (EEC) No 1408/71 of the Council (Regulation No 883/2004) is lower than the benefit which would have been received if the retirement pension had been calculated according to the legislation of the Czech Republic) only to citizens of the Czech Republic, where the fundamental right to security in old age interpreted by the Constitutional Court of the Czech Republic specifically in relation to periods of pension benefit acquired in the former CSFR, and perceived as a part of the national identity, leads to that treatment, and where that treatment is not such as to interfere with the right of freedom of movement for workers as a basic right of the Union, in the situation where offering similar treatment to all other citizens of Member States of the EU who also acquired similar periods of pension benefit in the former CSFR would lead to a significant threat to the financial stability of the Czech Republic's system of pensions insurance?
If the answer to question (2) is in the affirmative:
3) Does European Union law prevent the national court, which is the highest court in the State in the field of administrative law and against whose decision there is no right of appeal, from being, in accordance with national law, bound by the legal assessment of the Constitutional Court of the Czech Republic where that assessment seems not to be in accordance with Union law as interpreted by the Court of Justice of the European Union?
The text of the reference for the preliminary ruling (order of 9 May 2012, no. 6 Ads 18/2012-82) can be found here.
The request for a preliminary ruling was withdrawn by order of 23 January 2012 (no. 6 Ads 18/2012-191), as the complainant withdrew the cassation complaint in its entirety. The order can be found here.
By order of 8 March 2019, the case was removed from the register of the Court of Justice. The order can be found here.
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Does it follow from European Union law that a taxpayer has the right to be informed of a decision of the tax authorities to make a request for information in accordance with Directive 77/799/EEC? Does the taxpayer have the right to take part in formulating the request addressed to the requested Member State? If the taxpayer does not derive such rights from European Union law, is it possible for domestic law to confer similar rights on him?
2) Does a taxpayer have the right to take part in the examination of witnesses in the requested State in the course of dealing with a request for information under Directive 77/799/EEC? Is the requested Member State obliged to inform the taxpayer beforehand of when the witness will be examined, if it has been requested to do so by the requesting Member State?
3) Are the tax authorities in the requested Member State obliged, when providing information in accordance with Directive 77/799/EEC, to observe a certain minimum content of their answer, so that it is clear from what sources and by what method the requested tax authorities have obtained the information provided? May the taxpayer challenge the correctness of the information thus provided, for example on grounds of procedural defects of the proceedings in the requested State which preceded the provision of the information? Or does the principle of mutual trust and cooperation apply, according to which the information provided by the requested tax authorities may not be called in question?
The text of the reference for the preliminary ruling (order of 3 April 2012, no. 1 Afs 73/2011-90) can be found here.
The Court of Justice ruled as follows:
1) European Union law, as it results in particular from Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums, as amended by Council Directive 2006/98/EC of 20 November 2006, and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State.
2) Directive 77/799, as amended by Directive 2006/98, does not govern the question of the circumstances in which the taxpayer may challenge the accuracy of the information conveyed by the requested Member State, and it does not impose any particular obligation with regard to the content of the information conveyed.
The judgment of the Court of Justice of 22 October 2013 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 21 January 2014, no.1 Afs 73/2011-167) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) May non-organised, unsystematic and recreational sporting activities which can be carried on in that manner in an open-air swimming-pool complex (for instance, recreational swimming, recreational playing of ball games, etc.) be regarded as the exercise of sport or physical education within the meaning of Article 132(1)(m) of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax?
2) In the event of an affirmative answer to Question 1, is the supply for consideration of access to such an open-air swimming-pool complex, which offers its visitors the above-mentioned opportunity of exercising sporting activities, although alongside other kinds of amusement or recreation, to be regarded as a service closely linked to sport or physical education supplied to persons taking part in sporting or physical education activities within the meaning of that provision of Directive 2006/112/EC, and hence as a service exempted from value added tax in so far as it is supplied by a non-profit-making organisation and the other conditions under that directive are satisfied?
The text of the reference for the preliminary ruling (order of 15 December 2011, no. 5 Afs 1/2011-58) can be found here.
The Court of Justice ruled as follows:
1) Article 132(1)(m) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that non-organised and unsystematic sporting activities which are not aimed at participation in sports competitions may be categorised as taking part in sport within the meaning of that provision.
2) Article 132(1)(m) of Directive 2006/112 must be interpreted as meaning that access to an aquatic park offering visitors not only facilities for engaging in sporting activities but also other types of amusement or rest may constitute a supply of services closely linked to sport. It is for the referring court to determine whether, in the light of the interpretative guidance provided by the Court of Justice of the European Union in the present judgment and having regard to the specific circumstances of the case in the main proceedings, that is the position in that case.
The judgment of the Court of Justice of 21 February 2013 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 31 May 2013, no. 5 Afs 1/2011-140) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Should Article 2(1), in conjunction with recital 9 of the preamble, of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals be interpreted to mean that this Directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status?
2) If the answer to the first question is in the affirmative, must the detention of a foreign national for the purpose of return be terminated if he applies for international protection within the meaning of Directive 2005/85/EC and there are no other reasons to keep him in detention?
The text of the reference for the preliminary ruling (order of 22 September 2011, no. 1 As 90/2011-59) can be found here.
The Court of Justice ruled as follows:
1) Article 2(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known.
2) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers and Directive 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return.
The judgment of the Court of Justice of 30 May 2013 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 31 July 2013, no.1 As 90/2011-124) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) On a proper interpretation of Article 4a(1) of Council Regulation (EC) No 320/2006, as inserted by Council Regulation (EC) No 1261/2007, does the commitment to cease delivery of a certain amount of quota beet to the undertaking with which he has concluded a delivery contract in the preceding marketing year mean a unilateral declaration of the grower that he will not deliver sugar beet in the marketing year 2008/2009, or does that commitment mean the written termination of the contractual relationship of the grower with the sugar company concerning deliveries of sugar beet for the said marketing year?
2) May the fact that a contractual party uses a step provided for by a directly binding EU legal provision result in the unenforceability of an obligation of that contractual party under a valid private law contract, on condition that, as a result of that fact, the other contractual party is granted funds from the public budget?
The text of the reference for the preliminary ruling (order of 8 July 2011, no. 2 As 49/2011-83) can be found here.
The Court of Justice ruled as follows:
1) Article 4a(1) of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the European Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy, as amended by Council Regulation (EC) No 1261/2007 of 9 October 2007, must be interpreted as meaning that the undertaking to cease delivery of a certain quantity of sugar beet during the marketing year 2008/2009 may take the form of a unilateral declaration by the producer.
2) Article 4a(1) of Regulation No 320/2006, as amended by Regulation No 1261/2007, must be interpreted as meaning that the unilateral undertaking of the producer to cease delivery of a certain quantity of sugar beet during the marketing year 2008/2009 does not as such entail the inapplicability of its contractual obligations towards the sugar company.
The judgment of the Court of Justice of 4 October 2012 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment 16 January 2013, no. 2 As 49/2011-170) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) May the concept of 'normal retirement age' at the time of transfer of a farm under Article 11 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations be interpreted as 'the age required for entitlement to a retirement pension' by a particular applicant under national legislation?
2) If the answer to the first question is in the affirmative, is it in accordance with European Union law and the general principles of European Union law for 'normal retirement age' at the time of transfer of a farm to be determined differently for individual applicants depending on their sex and the number of children they have brought up?
3) If the answer to the first question is in the negative, what criteria should the national court take into account when interpreting the concept of 'normal retirement age' at the time of transfer of a farm under Article 11 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations?
The text of the reference for the preliminary ruling (order of 12 April 2011, no. 8 As 8/2010-94) can be found here.
The Court of Justice ruled as follows:
It is incompatible with European Union law and the general principles of equal treatment and non-discrimination for ‘normal retirement age’, for the purposes of the second indent of Article 11(1) of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations, to be determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, under the provisions of the national retirement scheme of the Member State concerned relating to the age required for entitlement to an old-age pension.
The judgment of the Court of Justice of 11 April 2013 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 11 September 2013, no. 8 As 8/2010-233) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Does Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax refer only to supplies made by travel agents to end users of a travel service (travellers) or also to supplies made to other persons (customers)?
2) Should a transport company which merely provides transport of persons by providing bus transport to travel agencies (not directly to travellers) and which does not provide any other services (accommodation, information, consultancy etc.) be regarded as a travel agent for the purposes of Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax?
The text of the reference for the preliminary ruling (order of 28 April 2011, no. 1 Afs 103/2010-68) can be found here.
The Court of Justice ruled as follows:
A transport company which merely carries out the transport of persons by providing coach transport to travel agents and does not provide any other services such as accommodation, tour guiding or advice does not effect transactions falling within the special scheme for travel agents in Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.
The judgment of the Court of Justice of 1 March 2012 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 11 July 2012, no. 1 Afs 103/2010-274) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Must point 6 in Part A of Annex III in connection with Article 7(2)(c) of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, according to which the criterion for determining the successor state competent to take into account the insurance period completed by employed persons up to 31 December 1992 in the social security system of the former Czech and Slovak Federal Republic is to remain applicable, be interpreted as precluding the application of a rule of national law according to which a Czech social security institution is to take into account fully, with regard to the entitlement to a benefit and the fixing of the amount thereof, the insurance period completed in the territory of the former Czech and Slovak Federal Republic up to 31 December 1992, even though, according to the above mentioned criterion, it is a social security institution of the Slovak Republic which is competent to take it into account?
2) If the first question is answered in the negative, must Article 12 of the Treaty establishing the European Community in conjunction with Articles 3(1), 10 and 46 of the Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community be interpreted as precluding that the insurance period completed in the social security system of the former Czech and Slovak Federal Republic up to 31 December 1992, which has already been taken into account once to the same extent for benefit purposes in the social security system of the Slovak Republic, be, pursuant to the above mentioned national rule, taken fully into account, with regard to the entitlement to old age benefit and the fixing of the amount thereof, only in respect of nationals of the Czech Republic resident in its territory?
The text of the reference for the preliminary ruling (order of 23 September 2009, no. 3 Ads 130/2008-107) can be found here.
The Court of Justice ruled as follows:
1) The provisions of point 6 of Annex III(A) to Council Regulation (EC) No 1408/71 read in conjunction with Article 7(2)(c) thereof, do not preclude a national rule, which provides for payment of a supplement to old age benefit where the amount of that benefit, granted pursuant to Article 20 of the bilateral agreement between the Czech Republic and the Slovak Republic signed on 29 October 1992 as a measure to regulate matters after the dissolution of the Czech and Slovak Federal Republic, is lower than that which would have been received if the retirement pension had been calculated in accordance with the legal rules of the Czech Republic.
2) The combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71, as amended by Regulation No 629/2006, preclude a national rule, which allows payment of a supplement to old age benefit solely to Czech nationals residing in the territory of the Czech Republic, but it does not necessarily follow, under European Union law, that an individual who satisfies those two requirements should be deprived of such a payment.
The judgment of the Court of Justice of 22 June 2011 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 25 August 2011, no. 3 Ads 130/2008-204) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Should Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase the expression in any form of a computer program' also includes the graphic user interface of the computer program or part thereof?
2) If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?
The text of the reference for the preliminary ruling (order of 16 September 2009, no. 5 As 38/2008-182) can be found here.
The Court of Justice ruled as follows:
1) A graphic user interface is not a form of expression of a computer program within the meaning of Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society if that interface is its author’s own intellectual creation.
2) Television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.
The judgment of the Court of Justice of 22 December 2010 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 2 February 2011, no. 5 As 38/2008-288) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
Must goods labelled as 'red dessert wine Kagor VK', contained in 0.75 litre bottles with an alcohol content of 15.8% - 16.1% by volume, to which beet sugar and corn alcohol have been added during their manufacture, those substances not originating from fresh grapes, be classified under heading 2204 or heading 2206 of the combined nomenclature of the customs tariff?
The text of the reference for the preliminary ruling (order of 2 September 2009, no. 7 Afs 11/2008-75) can be found here.
The Court of Justice ruled as follows:
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles, with an alcohol content of 15.8% to 16.1% by volume, to which beet sugar and corn alcohol have been added during the course of its production, must be classified under heading 2206 of the Combined Nomenclature in Annex I to that regulation.
The judgment of the Court of Justice of 16 December 2010 can be found here.
The subsequent decision of the Supreme Administrative Court (judgment of 24 January 2011, no. 7 Afs 11/2008-109) can be found here (only in Czech).
The Supreme Administrative Court referred the following questions to the Court of Justice for a preliminary ruling:
1) Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00, Commission v Luxembourg, for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste?
2) If the answer to that question is in the affirmative, under what conditions may the operation be regarded in such a case as the recovery of waste?
(a) May the aspect of payment for the waste operation be disregarded altogether, or is it necessary at the very least, for it to be possible to regard the operation as the recovery of waste, that the income of the operator of the installation from the sale of the thermal or electrical energy obtained by the incineration of a certain quantity of waste exceeds the income of the operator of the installation from the payment for receiving the waste?
(b) As regards the nature of the installation of the recipient of waste, may it be regarded as a sufficient factor testifying to a waste recovery operation that in the decision authorising the operation of the installation it is formally classified as an installation for the recovery of waste for energy purposes and that the operator of the installation has contractually bound himself to feeding a certain quantity of thermal energy into the network and would face a contractual penalty if that obligation were breached, or is it a minimum condition for assessing the operation as the recovery of waste that the operator of the installation would from the legal, technical and economic point of view actually be capable of operating the installation, at least temporarily, on the basis of fuels other than waste?
The text of the reference for the preliminary ruling (order of 8 July 2009, no. 5 As 49/2009-138) can be found here.
The request for a preliminary ruling was withdrawn by order of 8 April 2010 (no. 5 As 49/2009-160), as the complainant withdrew the cassation complaint in its entirety. The order can be found here.
By order of 25 May 2010, the case was removed from the register of the Court of Justice. The order can be found here.
The need to submit the request for a preliminary ruling first arose in 2008, in a case involving the delivery and enforcement of customs and tax assessments issued by other Member States of the EU and the recovery of claims resulting from enforceable payment orders in customs and tax matters.
The Supreme Administrative Court referred the following preliminary questions to the Court of Justice:
1) Must Article 12(3) of Council Directive of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures be interpreted as meaning that, where measures for enforcement of a claim are contested before the court of a Member State in which the requested authority has its seat, that court is entitled, in accordance with the legislation of that Member State, to review whether the instrument permitting enforcement (enforcement order) is enforceable and has been properly served on the debtor?
2) Does it follow from general legal principles of Community law, in particular from the principles of a right to a fair trial, sound administration and the rule of law, that service of the instrument permitting enforcement (enforcement order) on the debtor in a language other than one he understands, which, moreover, is not an official language of the State in which it is served on the debtor, constitutes a defect which makes it possible to refuse to enforce on the basis of such an instrument permitting enforcement (enforcement order)?
The text of the reference for the preliminary ruling (order of 5 May 2008, no. 5 Afs 48/2007-107) can be found here.
The Court of Justice ruled as follows:
1) Article 12(3) of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, as amended by Council Directive 2001/44/EC of 15 June 2001, must be interpreted as meaning that the courts of the Member States where the requested authority is situated do not, in principle, have jurisdiction to review the enforceability of an instrument permitting enforcement. Conversely, where a court of that Member State hears a claim against the validity or correctness of the enforcement measures, such as the notification of the instrument permitting enforcement, that court has the power to review whether those measures were correctly effected in accordance with the laws and regulations of that Member State.
2) In the framework of the mutual assistance introduced pursuant to Directive 76/308, as amended by Directive 2001/44, in order for the addressee of an instrument permitting enforcement to be placed in a position to enforce his rights, he must receive the notification of that instrument in an official language of the Member State in which the requested authority is situated. In order to ensure compliance with that right, it is for the national court to apply national law while taking care to ensure the full effectiveness of Community law.
The judgement of the Court of Justice of 14 January 2010 can be found here.
The subsequent decision of the Supreme Administrative Court Court (judgment of 25 February 2010, no. 5 Afs 48/2007-172) can be found here (only in Czech) .