19.12.2009   

EN

Official Journal of the European Union

C 312/22


Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 14 October 2009 — Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S v Skatteministeriet

(Case C-398/09)

2009/C 312/37

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicants: Lady & Kid A/S, Direct Nyt ApS, A/S Harald Nyborg Isenkram- og Sportsforretning and KID-Holding A/S

Defendant: Skatteministeriet

Questions referred

1.

Is the Court’s judgment of 14 January 1997 in Joined Cases C-192/95 (1) to C-218/95 Comateb and Others to be interpreted as meaning that the passing-on of an unlawful levy on a product presupposes that the levy is passed on to the buyer of the product in the individual transaction, or may the passing-on in the prices also take place in the prices of other products in completely different transactions, either before or after the relevant sale of products, for example, with the result that an overall assessment is made of the passing-on over a four-year period involving a large number of product groups, including both imported and non-imported products?

2.

Is the Community law concept of ‘passing-on’ to be understood as meaning that an unlawful levy on a sale of products may be regarded as passed on only if the price of the product is higher than that price which applied immediately before the levy was introduced, or may the levy also be regarded as passed on where the undertaking subject to the levy, at the same time as the introduction of the unlawful levy, saved on other levies charged on other bases, and the undertaking therefore maintained its prices unchanged?

3.

Is the Community law concept of ‘unjust enrichment’ to be understood as meaning that the reimbursement of an unlawful levy on a sale of products may be regarded as giving rise to unjust enrichment, where the undertaking, before or after the sale of the taxable product, has made a saving as a result of the abolition of other levies charged on other bases, if it is assumed that that abolition of other levies also benefits other undertakings, including undertakings which did not pay the unlawful levy or only paid it to a lesser extent?

4.

If it is assumed that an unlawful levy, as a result of its structure, has had the effect that proportionately more has been paid in levies by undertakings which imported products than by undertakings which to a greater extent purchased domestic products, and, at the same time as the unlawful levy was introduced, another lawful levy was charged on another basis which proportionately affected both undertakings to the same extent, irrespective of the composition of the undertaking’s purchases, then guidance is sought on the following:

(i)

whether Community law allows for whole or partial refusal to reimburse the unlawful levy to an undertaking which imports products on grounds of passing-on and unjust enrichment, in so far as the refusal leads to a situation where the undertaking, as a result of having paid relatively more of the unlawful levy than a corresponding undertaking which purchased equivalent goods domestically, will thereby, all other things being equal, be placed in a worse position as a result of the tax restructuring and the refusal to reimburse than corresponding undertakings which to a greater extent purchased domestic goods;

(ii)

whether the reimbursement of the unlawful levy in the relevant situation may conceptually give rise to ‘unjust enrichment’ and may therefore be refused, if the reimbursement — even if the levy is regarded as having been passed on — is necessary in order to achieve a situation in which the effect of the tax restructuring, after any reimbursement, all other things being equal, remains the same for undertakings which imported products as for undertakings which purchased domestic products;

(iii)

whether refusal to reimburse in such a situation, which leads to undertakings which to a greater extent purchased domestic products and thus obtained an advantage in relation to undertakings which to a greater extent imported products, is otherwise contrary to Community law, including the principle of equal treatment; and

(iv)

whether the answer to question 3 means that it is not justified to refuse reimbursement of an unlawfully charged levy on grounds of unjust enrichment, to the extent that such reimbursement merely cancels out the advantage for those undertakings which purchased domestic products in relation to undertakings which to a greater extent imported products.


(1)  ECR [1997] I-165