Case C‑662/13

Surgicare — Unidades de Saúde SA

v

Fazenda Pública

(Request for a preliminary ruling from the Supremo Tribunal Administrativo)

‛Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Deduction of input tax — Transactions constituting an abusive practice — National tax law — Special national procedure where the existence of abusive practices is suspected in the field of taxation — Principles of effectiveness and equivalence’

Summary — Judgment of the Court (Ninth Chamber), 12 February 2015

1. Questions referred for a preliminary ruling — Admissibility — Request not identifying precisely the provisions of EU law requiring interpretation — Possibility for the Court of identifying those provisions

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Statement of the reasons for requiring a answer to the questions for a preliminary ruling

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the national court — Determination of the legislation applicable ratione temporis

   (Art. 267 TFEU)

4. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — National law prohibiting the deduction of value added tax in the event of fraud or abuse — Measures to prevent the distortion of competition and fiscal fraud — Absence of EU law on the matter — Application of national law — Special national procedure where abusive practices in fiscal matters are suspected — Respect for the principles of equivalence and effectiveness — Determination by the national court

   (Council Directive 2006/112, Arts 273 and 342)

1.  Where there is a lack of precision, in a request for a preliminary ruling, as to the provisions of EU law of which an interpretation is requested, the Court must extract from all the factors provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of EU law requiring an interpretation, having regard to the subject-matter of the dispute.

   (see para. 17)

2.  See the text of the decision.

   (see paras 21, 22)

3.  See the text of the decision.

   (see para. 22)

4.  Directive 2006/112 on the common system of value added tax must be interpreted as meaning that it does not preclude the mandatory preliminary application of a national administrative procedure, in the event that the revenue authorities suspect the existence of an abusive practice, provided that such rules are not less favourable than those governing similar domestic actions and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order. Such is the case for a preliminary procedure that, on the one hand, is favourable to the person suspected of having committed an abuse of rights, inasmuch as it seeks to guarantee the observance of certain fundamental rights, in particular the right to be heard, and which, on the other hand, is not contrary to the objective of the prevention of tax evasion, avoidance and abuse, recognised in the case-law of the Court of Justice.

   (see paras 26, 29, 32, 34, operative part)

Case C‑662/13

Surgicare — Unidades de Saúde SA

v

Fazenda Pública

(Request for a preliminary ruling from the Supremo Tribunal Administrativo)

‛Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Deduction of input tax — Transactions constituting an abusive practice — National tax law — Special national procedure where the existence of abusive practices is suspected in the field of taxation — Principles of effectiveness and equivalence’

Summary — Judgment of the Court (Ninth Chamber), 12 February 2015

1. Questions referred for a preliminary ruling — Admissibility — Request not identifying precisely the provisions of EU law requiring interpretation — Possibility for the Court of identifying those provisions

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Statement of the reasons for requiring a answer to the questions for a preliminary ruling

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the national court — Determination of the legislation applicable ratione temporis

   (Art. 267 TFEU)

4. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — National law prohibiting the deduction of value added tax in the event of fraud or abuse — Measures to prevent the distortion of competition and fiscal fraud — Absence of EU law on the matter — Application of national law — Special national procedure where abusive practices in fiscal matters are suspected — Respect for the principles of equivalence and effectiveness — Determination by the national court

   (Council Directive 2006/112, Arts 273 and 342)

1.  Where there is a lack of precision, in a request for a preliminary ruling, as to the provisions of EU law of which an interpretation is requested, the Court must extract from all the factors provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of EU law requiring an interpretation, having regard to the subject-matter of the dispute.

   (see para. 17)

2.  See the text of the decision.

   (see paras 21, 22)

3.  See the text of the decision.

   (see para. 22)

4.  Directive 2006/112 on the common system of value added tax must be interpreted as meaning that it does not preclude the mandatory preliminary application of a national administrative procedure, in the event that the revenue authorities suspect the existence of an abusive practice, provided that such rules are not less favourable than those governing similar domestic actions and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order. Such is the case for a preliminary procedure that, on the one hand, is favourable to the person suspected of having committed an abuse of rights, inasmuch as it seeks to guarantee the observance of certain fundamental rights, in particular the right to be heard, and which, on the other hand, is not contrary to the objective of the prevention of tax evasion, avoidance and abuse, recognised in the case-law of the Court of Justice.

   (see paras 26, 29, 32, 34, operative part)