# C_2022340EN.01001702.xml

| 5.9.2022 | EN | Official Journal of the European Union | C 340/17 |
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5.9.2022

EN

Official Journal of the European Union

C 340/17

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Request for a preliminary ruling from the Rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent (Belgium) lodged on 1 June 2022 — BV Osteopathie Van Hauwermeiren v Belgische Staat

(Case C-355/22)

(2022/C 340/22)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent

Parties to the main proceedings

Applicant: BV Osteopathie Van Hauwermeiren

Defendant: Belgische Staat

Questions referred

| 1. | Should the judgment of the Court of Justice of 8 April 1976 in Case 43/75 Defrenne v SABENA (1) be interpreted as granting the national court autonomous power — sua sponte and without submitting a request for a preliminary ruling under Article 267 TFEU — to maintain, on the basis of a purely internal legal provision, the effects, as regards the past, of national legislation concerning the VAT exemption for medical and paramedical services in respect of which the same court (having previously, in the same dispute, submitted three requests for a preliminary ruling under Article 267 TFEU to the Court of Justice, which the Court answered by judgment of 27 June 2019 in Case C-597/17) (2) subsequently found that the contested provision is contrary to European Union law and partially annulled that contested provision of national law, while maintaining the effects, as regards the past, of that provision of national law found to be contrary to EU law, thereby completely denying taxable persons liable for VAT the right to a refund of VAT levied in breach of EU law? |
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1.

Should the judgment of the Court of Justice of 8 April 1976 in Case 43/75 Defrenne v SABENA (1) be interpreted as granting the national court autonomous power — sua sponte and without submitting a request for a preliminary ruling under Article 267 TFEU — to maintain, on the basis of a purely internal legal provision, the effects, as regards the past, of national legislation concerning the VAT exemption for medical and paramedical services in respect of which the same court (having previously, in the same dispute, submitted three requests for a preliminary ruling under Article 267 TFEU to the Court of Justice, which the Court answered by judgment of 27 June 2019 in Case C-597/17) (2) subsequently found that the contested provision is contrary to European Union law and partially annulled that contested provision of national law, while maintaining the effects, as regards the past, of that provision of national law found to be contrary to EU law, thereby completely denying taxable persons liable for VAT the right to a refund of VAT levied in breach of EU law?

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

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

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(1)  EU:C:1976:56.

(2)  EU:C:2019:544.

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