Judgment;Summary — ECLI:EU:T:2025:682
Date: 2025-07-09
Language of the case: Croatian
Procedure: Reference for a preliminary ruling
Origin: Croatia

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Translation T-534/24 – 1 
Case T-534/24 [Gotek] i 
Request for a preliminary ruling 
Date lodged:  
8 October 2024 
Referring court:  
Upravni sud u Osijeku (Croatia) 
Date of the decision to refer:  
30 September 2024 
Applicant:  
MK 
Defendant:  
Ministarstvo financija Republike Hrvatske, Samostalni sektor za 
drugostupanjski upravni postupak 
  
[…] Request to the Court of Justice for the European Union 
for preliminary ruling 
pursuant to the second paragraph of Article 267 of the Treaty on the Functioning 
of the European Union, in conjunction with subparagraph (b) of the first 
paragraph thereof 
Parties to the main proceedings: 
Applicant: MK […] 
      
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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Defendant: Ministarstvo financija Republike Hrvatske, Samostalni sektor za 
drugostupanjski upravni postupak (Ministry of Finance of the Republic of Croatia, 
Independent Sector for Second-Instance Administrative Procedure) […] 
Question referred for a preliminary ruling: 
Must Council Directive 2008/118/EC of 16 December 2008 concerning the 
general arrangements for excise duty and repealing Directive 92/12/EEC, in 
particular Articles 7 and 8 thereof, and/or Council Directive (EU) 2020/262 of 
19 December 2019 laying down the general arrangements for excise duty (recast), 
be interpreted as precluding national practice (and legislation) which provides for 
an obligation to pay excise duty on energy products where the excise goods have 
not been used and an excise duty liability has been established in respect of goods 
stated in falsified invoices for the purchase of energy products which, precisely 
because they have been falsified, do not give rise to the right to deduct input VAT 
because there are fictitious supplies of energy products, as has also been finally 
established in criminal proceedings? 
I. Subject matter of the dispute 
1 The subject matter of the dispute is the obligation to pay excise duty on energy 
products on the basis of falsified invoices for the period of activity from 
10 October 2016 to 31 December 2017. 
II. Facts 
2 The applicant runs a craft business […]. That business involves tree felling and 
ancillary forestry services. The applicant’s business was the subject of an 
inspection on which the Carinska uprava, Područni carinski ured Osijek (Customs 
Directorate, Osijek Regional Customs Office) compiled a report […] of 7 October 
2019. That report shows that during 2019, the applicant’s business was the subject 
of an inspection by customs and tax officials of the Ministarstvo financija 
Republike Hrvatske (Ministry of Finance of the Republic of Croatia). 
3 The subject matter of the tax inspection carried out by officials of the Porezna 
uprava (tax directorate) was the correct calculation and payment of value added 
tax (VAT). During that inspection, the tax authorities found that the applicant had 
deducted VAT on the basis of falsified invoices from the trading company INA 
d.d. for supplies of petroleum products in the period from 1 October 2016 to 
31 December 2017. That is to say, it was found that no supply of petroleum 
products had actually taken place, and consequently the applicant was denied the 
right to deduct input VAT. Finally, the Porezna uprava, Područni ured Virovitica 
(Tax Directorate, Virovitica Regional Office) adopted a decision on 1 July 2019 
[…], which established the amount of the applicant’s value added tax liability in 
the amount of HRK 135 603.57, plus default interest. According to the 
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information available to the referring court, the tax decision of 1 July 2019 in 
question has become final. 
4 Subsequently, in the administrative proceedings preceding these administrative 
court proceedings, customs officials of the Carinska uprava (customs directorate) 
carried out an inspection of the payment of excise duty pursuant to the Zakon o 
trošarinama (Law on excise duty) (Narodne novine, No 106/18) and the Pravilnik 
o trošarinama (Regulation on excise duty) (Narodne novine, No 1/19). During that 
inspection, it was found that, for the purpose of carrying out the registered 
activity, the applicant buys the energy product Eurodiesel, used to power means of 
transport (road motor vehicles and machinery). Customs officials carried out an 
inspection of the turnover and consumption of petroleum products by accessing 
the applicant’s commercial documents (purchase invoices from suppliers, INA 
d.d., Zagreb and PETROL d.o.o., Zagreb). It was found that during the period 
covered by the inspection, the applicant purchased 226 139.54 litres of petroleum 
products, namely Eurodiesel ED BS fuel, from the suppliers referred to, having a 
total value of HRK 2 187 662.62. It was further found that the 36 invoices from 
2016 and 119 invoices from 2017, which the applicant submitted to customs 
officials as invoices for fuel that he had put into his own means of transport, did 
not constitute authentic accounting documents. That is to say it was established 
that of the total quantity of Eurodiesel ED BS fuel purchased from the supplier 
INA d.d. (205 338.03 litres) as much as 63 435.23 litres was attributable to the 
quantities of fuel stated in the falsified invoices and that the stated deliveries had 
not taken place. In the view of the customs authorities, by entering the inauthentic 
invoices in his accounts, the applicant – in an attempt to conceal the inappropriate 
and unlawful use of energy products in his means of transport, which he used to 
carry out registered road transport activities and forestry work – falsified the 
invoices in question as proof of the purchase of Eurodiesel fuel in 2016 and 2017. 
5 Thus, in the view of the customs authorities, the applicant had abused the right to 
move excise goods – petroleum products in the amount of 63 435.23 litres – that is 
to say he entered in his accounts economic events on the basis of inauthentic 
invoices and infringed Article 124(2) of the Zakon o trošarinama (Law on excise 
duty). Therefore, the Carinska uprava, Područni carinski ured Osijek (Customs 
Directorate, Osijek Regional Customs Office), by decision […] of 22 October 
2019, determined his excise duty liability for energy products for the period from 
10 October 2016 to 31 December 2017 in the amount of HRK 194 111.80, which, 
together with default interest due, amounted to HRK 226 837.09. 
6 By decision […] of 31 March 2022, the Ministarstvo financija, Samostalni sektor 
za drugostupanjski upravni postupak (Ministry of Finance, Independent Sector for 
Second-Instance Administrative Procedure), dismissed the appeal lodged by the 
applicant against the first-instance decision of 22 October 2019. 
7 However, before the abovementioned decisions were adopted, the applicant 
(together with another defendant […]) was found guilty by a final judgment of the 
Općinski sud u Virovitici (Municipal Court, Virovitica) […] of 19 March 2019 of 
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committing a continuous offence – falsification of documents, as set out in and 
punishable under Article 278(1) of the Kazneni zakon (Criminal Code) (Narodne 
novine, Nos 125/11, 144/12, 56/15, 61/15, 101/17 and 118/18), in conjunction 
with Article 52 thereof, and a continuous offence of an economic nature – evasion 
of tax or customs duties, as set out in and punishable under Article 256(1) of the 
Kazneni zakon (Criminal Code), in conjunction with Article 52. Therefore, 
pursuant to Article 278(1) of the Kazneni zakon (Criminal Code), in conjunction 
with Article 52 thereof, the applicant was sentenced to a suspended prison 
sentence. 
8 According to the abovementioned criminal judgment, the applicant, as the owner 
and responsible person in the craft business […], benefited, on the basis of 
falsified invoices unlawfully showing the delivery of fuel and other goods from 
the trading company INA d.d., from the deduction of input VAT in the amount of 
HRK 68 913.18 in 2015, HRK 108 080.59 in 2016 and HRK 106 744.89 in 2017, 
which was withheld from the Državni proračun Republike Hrvatske (State budget 
of the Republic of Croatia). At the same time, on account of the incorrectly stated 
basis for the calculation of tax, income tax was also not paid. Thus, in total the 
defendants withheld from the Državni proračun Republike Hrvatske (State budget 
of the Republic of Croatia) HRK 623 369.09 and from the budget of Općina Nova 
Bukovica (Municipality of Nova Bukovica) HRK 20 369.09. 
9 Furthermore, according to the abovementioned criminal judgment, pursuant to 
Article 158(2) of the Zakon o kaznenom postupku (Code of Criminal Procedure) 
(Narodne novine, Nos 152/08, 76/09, 80/11, 121/11, 91/12, 143/12, 56/13, 145/13, 
152/14, 70/17 and 101/17), the defendants are obliged to pay jointly and severally 
to the Republic of Croatia by way of a claims for damages the amount of 
HRK 623 123.56, which also includes the amount of unlawfully declared input 
VAT from the falsified invoices, within one year. 
10 In addition, by a misdemeanour order of the Carinska uprava, Područni carinski 
ured Osijek (Customs Directorate, Osijek Regional Customs Office) […] of 
21 April 2021, the applicant was found guilty of dealing unlawfully with excise 
goods from 10 October 2016 to 31 December 2017, on the grounds that he entered 
in his accounts the purchase of an energy product, namely a petroleum product 
(Eurodiesel BS), which did not take place, in the amount of 63 435.23 litres, on 
the basis of 155 false or inauthentic invoices. On account of the abuse of the right 
to move excise goods [Article 124(2) of Zakon o trošarinama (Law on excise 
duty)], the applicant had therefore committed a misdemeanour under 
Article 102(1)(4) of Zakon o trošarinama (Law on excise duty) (Narodne novine, 
Nos 22/13, 32/13, 81/13, 100/15, 120/15 and 115/16) and was fined 
HRK 45 000.00. 
11 At the same time, the Visoki prekršajni sud Republike Hrvatske (High 
Misdemeanour Court of the Republic of Croatia), in its judgment […] of 7 July 
2021, varied the abovementioned misdemeanour order and dismissed the charges 
on the ground of infringement of the ne bis in idem principle as the applicant had 
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essentially already been convicted of the same offence by a final judgment of the 
Općinski sud u Virovitici (Municipal Court, Virovitica) […] of 19 March 2019. 
III. Legal background 
III.a. European Union law 
12 Article 7 of Council Directive 2008/118/EC of 16 December 2008 concerning the 
general arrangements for excise duty: 
‘1. Excise duty shall become chargeable at the time, and in the Member State, of 
release for consumption. 
2. For the purposes of this Directive, “release for consumption” shall mean any 
of the following: 
(a) the departure of excise goods, including irregular departure, from a duty 
suspension arrangement; 
(b) the holding of excise goods outside a duty suspension arrangement where 
excise duty has not been levied pursuant to the applicable provisions of 
Community law and national legislation; 
(c) the production of excise goods, including irregular production, outside a 
duty suspension arrangement; 
(d) the importation of excise goods, including irregular importation, unless the 
excise goods are placed, immediately upon importation, under a duty suspension 
arrangement. 
3. The time of release for consumption shall be: 
(a) in the situations referred to in Article 17(1)(a)(ii), the time of receipt of the 
excise goods by the registered consignee;  
(b) in the situations referred to in Article 17(1)(a)(iv), the time of receipt of the 
excise goods by the consignee; 
(c) in the situations referred to in Article 17(2), the time of receipt of the excise 
goods at the place of direct delivery. 
4. The total destruction or irretrievable loss of excise goods under a duty 
suspension arrangement, as a result of the actual nature of the goods, of 
unforeseeable circumstances or force majeure, or as a consequence of 
authorisation by the competent authorities of the Member State, shall not be 
considered a release for consumption. 
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For the purpose of this Directive, goods shall be considered totally destroyed or 
irretrievably lost when they are rendered unusable as excise goods. 
The total destruction or irretrievable loss of the excise goods in question shall be 
proven to the satisfaction of the competent authorities of the Member State where 
the total destruction or irretrievable loss occurred or, when it is not possible to 
determine where the loss occurred, where it was detected. 
5. Each Member State shall lay down its own rules and conditions under which 
the losses referred to in paragraph 4 are determined’. 
13 Article 8 of that directive provides: 
‘1. The person liable to pay the excise duty that has become chargeable shall be: 
(a) in relation to the departure of excise goods from a duty suspension 
arrangement as referred to in Article 7(2)(a): 
(i) the authorised warehousekeeper, the registered consignee or any other 
person releasing the excise goods or on whose behalf the excise goods are 
released from the duty suspension arrangement and, in the case of irregular 
departure from the tax warehouse, any other person involved in that departure; 
(ii) in the case of an irregularity during a movement of excise goods under a duty 
suspension arrangement as defined in Article 10(1), (2) and (4): the authorised 
warehousekeeper, the registered consignor or any other person who guaranteed 
the payment in accordance with Article 18(1) and (2) and any person who 
participated in the irregular departure and who was aware or who should 
reasonably have been aware of the irregular nature of the departure; 
(b) in relation to the holding of excise goods as referred to in Article 7(2)(b): the 
person holding the excise goods and any other person involved in the holding of 
the excise goods; 
(c) in relation to the production of excise goods as referred to in Article 7(2)(c): 
the person producing the excise goods and, in the case of irregular production, any 
other person involved in their production; 
(d) in relation to the importation of excise goods as referred to in 
Article 7(2)(d): the person who declares the excise goods or on whose behalf they 
are declared upon importation and, in the case of irregular importation, any other 
person involved in the importation.  
2. Where several persons are liable for payment of one excise duty debt, they shall 
be jointly and severally liable for such debt’. 
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III.b. Law of the Republic of Croatia 
14 Article 7 of the Zakon o trošarinama (Law on excise duty) (Narodne novine, 
No 106/18), which the customs authorities applied in the present case, provides: 
‘(1) The excise duty shall become chargeable at the time the excise goods are 
released for consumption in the territory of the Republic of Croatia, unless 
otherwise provided for in this Law, namely: 
1. at the time of departure of excise goods from a duty suspension arrangement, 
which means:  
(a) consumption of the excise goods for own needs in a tax warehouse 
(b) the shipment of the excise goods from a tax warehouse to a person who was 
not authorised to receive excise goods under a suspension arrangement  
(c) when the registered consignee receives excise goods under a duty 
suspension arrangement, except where he, she or it also has the status of an 
exempt user  
(d) the receipt of excise goods at the place of direct delivery, except where they 
have been received by an authorised warehousekeeper for direct delivery to the 
premises of an exempt user  
(e) interruption in movement’. 
( ) 
15 Under Article 12 of the Zakon o trošarinama (Law on excise duty): 
‘(1) The excise duty shall also become chargeable where it is established that 
1. the taxable items have been dealt with unlawfully  
2. the excise goods have been unlawfully released for consumption in the 
territory of the Republic of Croatia, and  
3. the excise goods have been consigned or used by an exempted user for 
purposes for which he, she or it has not been granted permission.  
(2) For the purposes of this Law, dealing with taxable items unlawfully means: 
the production, processing, storage, receipt, consignment, importation, 
introduction, transport, use, sale, purchase or possession of taxable items on which 
excise duty has not been calculated and paid pursuant to this Law or on which 
excise duty has not been calculated and paid in full, and any other abuse of the 
right to move or dispose of taxable items. Any dealing with goods which is 
expressly defined as unlawful in this Law shall also be considered to be unlawful. 
Taxable items shall be considered to have been dealt with unlawfully where the 
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person dealing with the taxable items is unable prove the correctness of the 
acquisition, possession and any other actual or legal disposition thereof, and it is 
clear from the circumstances of the case that the taxable items have been dealt 
with unlawfully. 
(3) The obligation to calculate and pay excise duty pursuant to this article shall 
be determined by a means of a decision.  
(4) The person obliged to pay excise duty shall be obliged to pay the excise duty 
due within ten days from the date of service of the decision referred to in 
paragraph 3 of this article. 
(5) If an excise debt has arisen as a result of taxable items being dealt with 
unlawfully in the territory of the Republic of Croatia, a person not entered in the 
register of taxable persons for the purpose of excise tax may fulfil the obligation 
to calculate and pay the excise tax by submitting an excise duty declaration form 
and paying the excise duty due within eight days of the day on which the 
inspection was carried out. 
(6) The Minister for Finance shall determine the content of the excise duty 
declaration in a regulation’. 
16 Under Article 124 of the Zakon o trošarinama (Law on excise duty): 
‘(1) Any conduct of persons who in any way directly or indirectly participate in 
the movement or disposal of taxable items with the following purposes shall be 
considered to constitute abuse of the right to move or dispose of taxable items: 
1. concealing the actual intention, purpose or basis for the movement or disposal 
of taxable items: 
2. avoiding the payment of excise duty or other public contributions including 
creating the conditions for avoiding the payment of excise duty or other public 
contributions. 
(2) Persons who in any way directly or indirectly participate in the movement or 
disposal of taxable items shall be considered to abuse the right to move or dispose 
of taxable objects where they: 
1. carry out fictitious or sham legal transactions in connection with the 
movement or disposal of taxable items or participate in the conclusion of such 
legal transactions in any capacity whatsoever, 
2. organise fictitious supplies, receipts, movements or disposals of taxable 
items or participate directly or indirectly therein, 
3. abuse the Excise Movement and Control System to show fictitious 
movements or fictitious disposals 
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4. participate directly or indirectly in the falsification of commercial, transport 
or other documentation in relation to the movement or disposal of taxable items or 
in the use of such falsified documentation  
5. make unauthorised or arbitrary use of the data of other natural or legal 
persons with a view to carrying out transactions in relation to dealing with, 
moving or disposing of taxable items, or to creating the conditions for doing so 
6. through abuse of trust, fraudulent, false or misleading actions, carry out 
actions in relation to dealing with, moving or disposing of taxable items or create 
the conditions for doing so. 
(3) Disposal of taxable items shall be considered to be any actual or legal 
disposal, including the exclusive performance of financial transactions or acts 
which require the issuance, confirmation or certification of any accounting or 
bookkeeping document, the conclusion of a contract or participation in a 
contractual relationship, or the issuance, confirmation or certification of a 
shipping or other document in the capacity of buyer, seller, broker, carrier, 
consignee or consignor in relation to taxable items’. 
17 Article 125 of the Zakon o trošarinama (Law on excise duty) provides: 
‘(1) If the basis for determining the obligation to calculate and pay excise duty is 
the abuse of the right to move or dispose of taxable items and if, consequently, the 
existence of a fictitious or sham legal act or a fictitious supply, receipt, movement 
or disposal of taxable items is established, the basis for establishing the excise 
duty liability is a fictitious or sham legal act, that is say, a fictitious supply, 
receipt, movement or disposal of taxable items. Any person who participates 
directly or indirectly in the abuse of a right in carrying out or performing a 
fictitious or sham legal act or a fictitious supply, receipt, movement or disposal of 
taxable items shall be liable as a joint and several debtor in respect of the excise 
duty liability incurred. 
(2) Any person in respect of whom it is clear from objective circumstances that 
he, she or it knew, or must have known, that, by his, her or its actions or failure to 
act as required, they were participating in an abuse of the right to displace or 
dispose of taxable items, shall be liable as a joint and several debtor in respect of 
the excise duty liability incurred. 
(3) If the basis for determining the obligation to calculate and pay excise duty is 
the abuse of the right to move or dispose of taxable items, partners of trading 
companies and persons managing companies cannot claim that they are not liable 
for the obligations of the company by law and such persons shall be liable for the 
excise debt personally, jointly and severally and without limitation in respect of 
all their assets. Any person who uses other persons acting as his, her or its trustees 
in such a way that someone else acts as a partner in the company, but does so on 
the instructions and directions of that person, shall also be liable for the excise 
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debt personally, jointly and severally and without limitation in respect of all their 
assets. 
(4) The Carinska uprava (customs directorate) shall use all types of evidence to 
establish facts relevant to taxation in proceedings to establish the abuse of the 
right to move or dispose of taxable items, including notifications and information 
obtained pursuant to acts governing administrative cooperation and exchange of 
information with other countries’. 
IV. Essential arguments of the parties 
18 Both in the proceedings before the referring court and in the administrative 
proceedings, the applicant submits that it was found in the course of the inspection 
that the case concerns fictitious – falsified invoices for goods which had not 
actually been issued to the buyer, meaning that the applicant had never received 
the Eurodiesel fuel. In that regard, there can be no excise duty liability and excise 
duty payment obligation arising from excise goods being dealt with unlawfully 
since the dealing with excise goods must be real, whereas in the present case it is 
common ground that the applicant never purchased and took delivery of 63 435.23 
litres of Eurodiesel fuel from the trading company INA d.d. In that case, it is also 
not possible to charge excise duty on Eurodiesel fuel which has not been released 
for consumption. There may have been a criminal offence in respect of which 
criminal proceedings have been instituted, or the unlawful exercise of the right to 
deduct input VAT, but not an excise duty liability. Otherwise, it can be inferred 
that the applicant is charged excise duty precisely because he did not possess and 
consume the excise goods, which is contrary to the Zakon o trošarinama (Law on 
exercise) and is not logical. Since fictitious invoices cannot form the basis for an 
excise duty liability when it is common ground that the excise goods never 
existed, which was also established in the criminal proceedings, the applicant 
asked the referring court to annul both decisions, namely that of the second 
instance of 31 March 2022 and that of the first instance of 22 October 2019. 
19 On the other hand, the defendant contends that the applicant abused his right to 
move excise goods, namely Eurodiesel BS petroleum products, in the amount of 
63 535.23 litres, because he dealt with that energy product in breach of 
Article 124(2) of the Zakon o trošarinama (Law on excise duty), that is to say he 
entered in his accounts an economic event based on inauthentic invoices, using 36 
inauthentic invoices of the trading company INA d.d. in 2016 and 119 in 2017 as 
authentic accounting documents in his own accounts during the period in question, 
even though he knew, or must have known, that the invoices in question were 
falsified and that they were fictitious supplies of Eurodiesel fuel. By doing so, the 
applicant infringed the Zakon o trošarinama (Law on excise duty). He was found 
to be liable for excise duty. 
20 As regards the simultaneous conduct of criminal/misdemeanour proceedings and 
proceedings for payment of excise duty, the defendant points out that the purpose 
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of levying the excise duty due is to compensate for the underpayment of excise 
duty, that is to say to compensate in full for the unpaid amount of excise duty due 
as revenue for the Državni proračun (State budget), and not to impose a penalty 
with a view to general prevention. Therefore, in the present case, the principle of 
ne bis in idem has not been infringed because the administrative (tax) and criminal 
proceedings are separate and independent proceedings and thus the course and 
outcome of one set of proceedings does not affect the other. 
V. Reasoning behind the question referred 
21 At the sitting held on 10 September 2015, the Hrvatski sabor (Croatian 
Parliament) adopted the Zakon o izmjenama i dopunama Zakona o trošarinama 
(Law amending and supplementing the Law on excise duty). The law was 
published in Narodne novine No 100/15. According to the explanatory 
memorandum to the Prijedlog Zakona o izmjenama i dopunama Zakona o 
trošarinama (Proposal for a Law amending and supplementing the Law on excise 
duty), together with the Konačni prijedlog zakona (Final proposal for the law), 
which was submitted to the Speaker of the Hrvatski sabor (Croatian Parliament) 
by the Vlada Republike Hrvatske (Government of the Republic of Croatia) by act 
of 1 September 2015, one of the reasons for additional normative interventions is 
the protection of the fiscal interests of the Republic of Croatia, it being necessary 
to lay down additional instruments which will make it possible to prevent the 
abuse of certain excise arrangements and large-scale tax fraud, in particular in 
relation to the movement of excise goods in the European single market. 
22 In accordance with the abovementioned objectives of the legislature, the Zakon o 
izmjenama i dopunama Zakona o trošarinama (Law amending and supplementing 
the Law on excise duty) (Narodne novine, No 100/15) contains provisions on 
abuse of the right to move excise goods (Article 20.a). In that regard, the 
provisions of the Opći porezni zakon (Tax Code) concerning the procedure for 
determining the abuse of the right to move excise goods apply mutatis mutandis in 
the procedure for determining abuse of the right in a tax-debt relationship. 
23 In essence, the same provisions are also contained in the Zakon o trošarinama 
(Law on excise tax) (Articles 124 and 125) in force, which were applied by the 
customs authorities in the present case. Those provisions, according to 
administrative practice and case-law [see, for example, the judgment of the Visoki 
upravni sud Republike Hrvatske (High Administrative Court of the Republic of 
Croatia) […] of 18 March 2021, which was delivered in an essentially similar 
factual situation]), establish the basis for the excise duty liability on energy 
products regardless of the general rules on the payability of excise duty and 
regardless of the general rules on the abuse of rights referred to in the Opći 
porezni zakon (Tax Code), and thus also in situations such as the one at issue in 
the main proceedings, where there was undoubtedly no trade in excise goods and 
the invoices issued were falsified in order unlawfully to exercise the right to 
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deduct input VAT, as established in both tax and criminal proceedings, with the 
applicant being ordered to pay the VAT due. 
24 Since excise duty is a tax which relates to the consumption of individual goods, 
there is doubt as to whether the manner in which the excise duty liability is 
determined, as described, is compatible with EU law, that is, with the EU rules on 
excise duty. Therefore, the referring court, after making its order […] of 
27 September 2024 staying the administrative court proceedings in question, 
decided, with reference to the second paragraph of Article 267 of the Treaty on 
the Functioning of the European Union, in conjunction with subparagraph (b) of 
the first paragraph thereof, to refer the question set out in the first page of this 
request to the Court of Justice of the European Union for a preliminary ruling. 
[…]