Judgment;Summary — ECLI:EU:C:2023:737
Date: 2023-10-05
Language of the case: Dutch
Court formation: Sixth Chamber
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-355/22 – 1 
Case C-355/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
1 June 2022 
Referring court:  
Rechtbank van eerste aanleg Oost-Vlaanderen, afdeling Gent 
(Belgium) 
Date of the decision to refer:  
30 May 2022 
Applicant:  
BV Osteopathie Van Hauwermeiren 
Defendant:  
Belgische Staat 
  
Subject matter of the main proceedings 
The dispute concerns a refusal to refund the VAT charged on the services of 
osteopaths on the basis of a provision of national law which has since been 
partially annulled because it was found to be contrary to European Union law.  
Subject matter and legal basis of the request for a preliminary ruling 
The request concerns the question of the possibility of the national court 
maintaining, of its own motion and without a prior reference for a preliminary 
ruling, the effects, as regards the past, of a provision of national law under which 
the services of osteopaths are not eligible for the VAT exemption, a provision 
which that court partially annulled on the ground that it was contrary to EU law.  
Article 267 TFEU 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-355/22 
 
2  
Questions referred for a preliminary ruling 
‘I Should the judgment of the Court of Justice of 8 April 1976 in Case 43/75 
Defrenne v SABENA 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) 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?  
II 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?’  
Provisions of EU law and national law relied on 
EU law: Council Directive 2006/112 of 28 November 2006 on the common 
system of [VAT], Article 132(1)(c) 
Belgian law: Wetboek van de btw (the VAT Code; ‘the btw-wetboek’), Articles 2, 
4, 26, 28, 44, 70, § 1 bis, and 91, § 1. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Initially, there was uncertainty as to whether or not osteopathic services were 
eligible for the VAT exemption. Consequently, the applicant paid VAT on those 
services and proposed to the tax authorities that the time-barring of its right to a 
refund of that VAT should be interrupted by means of inclusion in an amended 
VAT return, an approach which the tax authorities rejected.  
OSTEOPATHIE VAN HAUWERMEIREN 
 
3 
2 By judgment No 194/2019 of 5 December 2019, the Grondwettelijk Hof 
(Constitutional Court) partially annulled certain provisions of Article 44 of the 
btw-wetboek as being contrary to EU law, with the result that the services of 
osteopaths fall within the scope of the VAT exemption in so far as the service 
providers concerned possess the necessary qualifications to provide medical care 
of a sufficiently high level of quality as to be comparable to the care provided by 
members of a regulated medical or paramedical profession.  
3 However, the Grondwettelijk Hof has maintained the effects of the annulled 
provisions as regards taxable events that occurred before 1 October 2019. The 
Grondwettelijk Hof based the limitation of the retroactivity of its ruling on 
important considerations of legal certainty affecting all the interests involved, both 
public and private, in particular the 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. In that regard, the Grondwettelijk Hof refers to the judgment of the Court of 
8 April 1976, Case 43/75, Defrenne v SABENA, paragraph 74.  
4 On the basis of the above-mentioned judgment of the Grondwettelijk Hof, the tax 
authorities took the view that the applicant was not entitled to a VAT refund in 
respect of the period prior to 1 October 2019.  
5 However, the applicant continues to contest that tax and to claim a refund of the 
VAT paid before 1 October 2019. Thus, in its periodic VAT return for the second 
quarter of 2020, it included a VAT adjustment in its favour in the amount of 
EUR 45 355.81. 
6 Subsequently, the tax authorities imposed a fine on the applicant of 10% of that 
amount, rounded to EUR 4 530, which they regard as tax due.  
7 Following the rejection by the tax authorities of its request for the remission or 
reduction of that fine, the applicant brought an action before the referring court 
seeking a declaration that the abovementioned amount and fine, including the 
interest thereon, are not due. 
The essential arguments of the parties in the main proceedings 
8 The applicant submits that the restriction by the Grondwettelijk Hof of the 
retroactive effect of its judgment No 194/2019 of 5 December 2019 is contrary to 
the principle of effectiveness of EU law, as it amounts to maintaining, as regards 
the past, a national provision that is potentially contrary to Article 132(1)(c) of 
Directive 2006/112.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-355/22 
 
4  
9 In addition, according to the applicant, that judgment is also manifestly contrary to 
the settled case-law of the Court of Justice on the right to a refund of charges or 
indirect taxes levied in breach of EU law, the exclusive jurisdiction of that Court 
to limit retroactivity and the criteria developed by that Court for refusing a refund 
in very exceptional cases, in which case the matter must, in any event, be brought 
before the Court and it is incumbent on the Member State concerned to prove that 
the criteria developed by the Court have been fulfilled, inter alia, as regards any 
alleged unjust enrichment.  
10 Consequently, the applicant asks the referring court to refrain from applying the 
judgment of the Grondwettelijk Hof of 5 December 2019.  
11 The defendant bases its refusal to refund the VAT paid on the aforementioned 
judgment of the Grondwettelijk Hof.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court justifies the reference by the fact that it is not satisfied that it 
has the power to set aside judgment No 194/2019 of the Grondwettelijk Hof of 
5 December 2019.