OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 22 November 2018 ( 1 )

Case C‑695/17

Metirato Oy, in liquidation

v

Suomen valtio/Verohallinto

Eesti Vabariik/Maksu- ja Tolliamet

(Request for a preliminary ruling from the Helsingin käräjäoikeus (District Court, Helsinki, Finland))

(Reference for a preliminary ruling — Mutual assistance for the recovery of claims relating to taxes, duties and other measures — Disputes concerning enforcement measures taken in the requested Member State — Determination of the defendant)

I. Introduction

1. In 2012, the Estonian authorities asked the Finnish authorities, pursuant to mutual assistance rules under Directive 2010/24/EU, ( 2 ) to recover taxes owed to the Estonian State from Metirato Oy, a Finnish company (‘Metirato’). Acting upon that request, the Finnish authorities opened a procedure of forced recovery against Metirato. In the course of that same procedure, the Finnish authorities also sought to recover taxes owed by Metirato to the Finnish State. Metirato paid a sum of money to the Finnish authorities. The latter transferred the appropriate part of that sum to the Estonian authorities.

2. In 2013, insolvency proceedings concerning Metirato were opened in Finland. The insolvency administrator in those proceedings subsequently brought an action before the Helsingin käräjäoikeus (District Court, Helsinki, Finland) (‘the referring court’), seeking restitution of the payment previously made by Metirato in the course of the Finnish forced recovery procedure.

3. It is in the context of that action, as far as the restitution of the sum of money transferred to the Estonian authorities is concerned, that the referring court has doubts as to the interpretation of Directive 2010/24. In particular, it asks whether the directive determines which Member State should be the defendant in the action for restitution of that sum: Finland or Estonia?

II. Legal framework

A. EU law

1. Directive 2010/24

4. Article 13(1) of Directive 2010/24 reads as follows: ‘For the purpose of the recovery in the requested Member State, any claim in respect of which a request for recovery has been made shall be treated as if it was a claim of the requested Member State, except where otherwise provided for in this Directive. The requested authority shall make use of the powers and procedures provided under the laws, regulations or administrative provisions of the requested Member State applying to claims concerning the same or, in the absence of the same, a similar tax or duty, except where otherwise provided for in this Directive. … The requested Member State shall not be obliged to grant other Member States’ claims preferences accorded to similar claims arising in that Member State, except where otherwise agreed between the Member States concerned or provided in the law of the requested Member State. A Member State which grants preferences to another Member State’s claims may not refuse to grant the same preferences to the same or similar claims of other Member States on the same conditions. The requested Member State shall recover the claim in its own currency.’

5. According to Article 13(5) of the directive, ‘the requested authority shall remit to the applicant authority the amounts recovered with respect to the claim and the interest referred to in paragraphs 3 and 4 of this Article’.

6. Article 14 of the directive sets out: ‘1. Disputes concerning the claim, the initial instrument permitting enforcement in the applicant Member State or the uniform instrument permitting enforcement in the requested Member State and disputes concerning the validity of a notification made by a competent authority of the applicant Member State shall fall within the competence of the competent bodies of the applicant Member State. If, in the course of the recovery procedure, the claim, the initial instrument permitting enforcement in the applicant Member State or the uniform instrument permitting enforcement in the requested Member State is contested by an interested party, the requested authority shall inform that party that such an action must be brought by the latter before the competent body of the applicant Member State in accordance with the laws in force there. 2. Disputes concerning the enforcement measures taken in the requested Member State or concerning the validity of a notification made by a competent authority of the requested Member State shall be brought before the competent body of that Member State in accordance with its laws and regulations. …’

B. Finnish law

1. Law on the restitution of assets to the insolvency estate

7. According to the first subparagraph of Paragraph 5 of the laki takaisinsaannista konkurssipesään (758/1991) (Law on the restitution of assets to the insolvency estate (758/1991)), a legal transaction is to be set aside, inter alia, if alone or in combination with other measures it unfairly benefits one creditor to the detriment of the other creditors. The requirements for setting aside a transaction are that the debtor was insolvent when the legal transaction was concluded or that that legal transaction contributed to the debtor’s insolvency.

8. Paragraph 10 of that law provides, inter alia, that the payment of a debt later than three months prior to the due date is to be set aside if the amount of the debt paid, in relation to the assets of the insolvency estate, appears to be substantial.

9. According to Paragraph 23 of that law, the insolvency administrator and certain creditors can make a request for the restitution of assets. The restitution of assets is carried out by instituting legal proceedings or by challenging the filing of a claim. That action can be brought before the käräjäoikeus (district court) which opened the insolvency proceedings.

III. Facts, national proceedings and the questions referred

10. The Eesti Maksu- ja Tolliamet (Tax and Customs Board of the Republic of Estonia) sought recovery of tax and interest on that tax from Metirato in the amount of EUR 28 754.50. On 18 April 2012, the Estonian Tax and Customs Board submitted a request for recovery of that sum to the Suomen Verohallinto (Finnish Tax Authority) on the basis of Directive 2010/24.

11. Acting upon that request, the Finnish Tax Authority sent details of the amount to be recovered for the Estonian Tax and Customs Board, as well as an indication of a sum of tax owed by Metirato to the Finnish Tax Authority, to the Finnish enforcement authorities responsible for the implementation of procedures for the forced recovery of debts.

12. On 12 February 2013, Metirato made a voluntary payment ( 3 ) of EUR 17500 to the Finnish enforcement authorities. EUR 15 837.67 was transferred to the Finnish Tax Authority. Pursuant to Estonia’s request for recovery, the Finnish Tax Authority transferred EUR 15 541.67 to Estonia.

13. On 23 April 2013, Metirato paid another EUR 17803 to the Finnish enforcement authorities.

14. On 8 May 2013, the Helsingin käräjäoikeus (District Court, Helsinki, Finland) ordered the liquidation of Metirato, further to an application made by the company itself.

15. On 8 May 2014, the insolvency administrator brought proceedings before the referring court against the Finnish Tax Authority seeking restitution of payments totalling EUR 33 707.67, including the sum of EUR 15 541.67 transferred to Estonia. The insolvency administrator argued, relying on Paragraph 5 of the Law on the restitution of assets to the insolvency estate, that the Finnish Tax Authority was unfairly given priority to the detriment of other creditors by the payment of long overdue taxes, at a time when Metirato was already insolvent. On the basis of Paragraph 10 of that law, the insolvency administrator further claimed that, during the critical period from 25 January to 8 May 2013, Metirato paid a sum in respect of tax debts which was substantial in relation to the assets of the estate.

16. The claim for restitution of payments was primarily directed against the Finnish Tax Authority. However, in the event that that authority was not considered to be the correct defendant with respect to the sum of EUR 15 541.67 transferred to Estonia, the insolvency administrator also brought a claim against the Estonian Tax and Customs Board.

17. The Finnish Tax Authority challenged the proceedings brought by the insolvency administrator, inter alia, on the ground that it is not the correct defendant, as the action seeks the restitution of payments received by Estonia. It argued that it merely acted as the representative of the Estonian authorities that requested mutual assistance in accordance with Directive 2010/24, and that that duty ended once the recovery of tax claims had been carried out. It also maintained that, since the assets recovered never became the property of the Finnish State, the action must be brought against the Estonian Tax and Customs Board.

18. The Estonian Tax and Customs Board also challenged the proceedings brought by the insolvency administrator on the ground that it cannot be a defendant in this case. It held that, on the basis of Article 13(1) and Article 14(2) of the directive, only the Finnish Tax Authority can be the defendant in such an action.

19. The referring court notes that it is not disputed that it is competent to deal with this action for restitution of assets. However, before examining the substance of the dispute it must decide whether the Finnish Tax Authority or the Estonian Tax and Customs Board is to be treated as the defendant with regard to the sum recovered by Finland and transferred to Estonia on the basis of Directive 2010/24.

20. In those circumstances, the Helsingin käräjäoikeus (District Court, Helsinki) decided to stay the proceedings and refer the following questions to the Court: ‘(1) Must the provisions of Article 13(1) of [Directive 2010/24], according to which debts to be recovered pursuant to a request for recovery are to be treated by the requested State as being the debts of that State, be interpreted as meaning that (a) the requested Member State is also a party to the legal proceedings concerning the restitution to the insolvency estate of sums paid following a recovery, or (b) that the involvement of the requested State is limited to the recovery of the debt by enforcement and the lodgement of the claim in the insolvency proceedings, and that it is the applicant State which is the defendant in a request for recovery concerning the extent of the assets covered by the liquidation? (2) Must the directive be interpreted as meaning that the debts of another Member State are to be recovered using the same means, while remaining separate and distinct from the assets of the requested State, or must the directive be interpreted as meaning that those debts are to be recovered together with the debts of the requested State, in which case they are merged with the debts of the requested State. In other words: does the directive aim exclusively to prohibit the discrimination of debts of another Member State? (3) Is it possible for a dispute concerning restitution of assets to the insolvency estate to be treated as a dispute concerning the enforcement measures within the meaning of Article 14(2), and can it be inferred that, according to the directive, the requested State is also a defendant in such a dispute?’

21. Written submissions were lodged by the Estonian and Finnish Governments and the European Commission.

IV. Assessment

22. I will start by addressing the first and third questions, which directly concern the issue of who should be the correct defendant in an action, such as that in the main proceedings, seeking restitution to the insolvency estate of sums of money recovered by a Member State at the request of another Member State on the basis of Directive 2010/24 (A). I will then turn to the second question, which seeks to ascertain whether the sums recovered further to the mechanism in that directive become the property of the requested Member State and which therefore also indirectly concerns the issue of identifying the correct defendant in such an action (B).

A. The first and third questions: who should be the defendant?

23. Who should be the defendant in an action seeking the restitution of sums recovered by a Member State (in this case, Finland) at the request of another Member State (in this case, Estonia), for sums which at the time of the action were in the possession of the latter: the applicant Member State (Estonia) or the requested Member State (Finland)?

24. In its order for reference, the referring court highlights two potentially relevant provisions of Directive 2010/24. The first of these provisions is Article 13(1), which states that ‘for the purpose of the recovery in the requested Member State, any claim in respect of which a request for recovery has been made shall be treated as if it was a claim of the requested Member State … The requested authority shall make use of the powers and procedures provided under the laws, regulations or administrative provisions of the requested Member State applying to claims concerning the same or, in the absence of the same, a similar tax or duty …’. The second provision is Article 14(2) of the directive, according to which ‘disputes concerning the enforcement measures taken in the requested Member State … shall be brought before the competent body of that Member State in accordance with its laws and regulations’.

25. It is clear that the provisions mentioned by the referring court (or, for that matter, the remaining provisions of the directive) do not provide a direct answer to the question of who the defendant should be in an action seeking restitution of the sums recovered by a Member State at the request of another Member State.

1. Directive 2010/24 or the Insolvency Regulation?

26. A preliminary question is whether Directive 2010/24 even governs the issue.

27. The Finnish Government considers that the main action is not governed by the directive, as the latter does not set out rules on the restitution of assets in the context of insolvency proceedings. That action should instead be governed by the Insolvency Regulation. ( 4 ) According to Article 4(1) of that regulation, Finnish law, as the law of the State where insolvency proceedings were opened, would determine the correct defendant in the main proceedings.

28. Even though I agree with the Finnish Government on the broader point of principle as to the legislation which governs insolvency proceedings in general, I fail to see how the Insolvency Regulation, in conjunction with applicable national insolvency rules, would provide an answer to the specific question raised by the national court, and why, for that matter, Directive 2010/24 would cease to be applicable.

29. The insolvency administrator is contesting the validity of the recovery procedure carried out by the Finnish authorities which, certainly in part, aimed at enforcing a request for recovery under Directive 2010/24. The insolvency administrator claims that the forced recovery of taxes carried out by the Finnish authorities should be set aside on the basis of Finnish legislation, namely the Law on the restitution of assets to the insolvency estate.

30. It is true that the forced recovery procedure was partially ‘national only’ (for recovery of taxes owed by Metirato to Finland) and partially a measure for the enforcement of the request for recovery made by the Estonian authorities (for recovery of taxes owed to Estonia). However, the fact that it also concerned the recovery of national taxes does not in my view create an obstacle to the view that the forced recovery procedure as a whole constituted a measure adopted by the Finnish authorities to enforce the request for recovery submitted by Estonia.

31. Thus, the forced recovery procedure qualifies, in my opinion, as an enforcement measure within the meaning of Article 14(2) of Directive 2010/24. ( 5 )

32. By the action in the main proceedings, the insolvency administrator is challenging the validity, under Finnish law, of an enforcement measure taken in Finland, which is the requested Member State. As a result, pursuant to Article 14(2) of the directive, that action constitutes a dispute which must be brought before the competent body of that Member State (namely the referring court) in accordance with its laws and regulations.

33. The Court has already noted that the competent body of the Member State in which the requested authority is situated is best placed to interpret the laws and regulations in force in that Member State and, in particular, to judge the legality, validity or correctness of the enforcement measure in accordance with those laws and regulations. ( 6 )

34. In sum, the forced recovery procedure was carried out because of and pursuant to Directive 2010/24. What is now being sought at national level is to challenge its course and outcome, in the context of subsequent insolvency proceedings, thus in effect to dispute an enforcement measure previously taken in the requested Member State (Article 14(2) of the directive). Therefore, although Directive 2010/24 does not contain a specific rule stating who the defendant should be in an action such as the present one, where after the transferral of the sums recovered the legal person that paid them is declared insolvent, I consider that the directive remains clearly applicable to such a case.

2. The identity of the defendant: a review of legality or a case of restitution?

35. Despite the silence of Directive 2010/24 in determining the defendant in such a specific factual context, two approaches might be, at least theoretically, conceivable. In simplistic terms, they could be labelled as ‘follow the power’ as opposed to ‘follow the money’ approaches.

36. In the logic of the former, what would be challenged is the way in which public power on the territory of a Member State has been exercised. Thus, what the insolvency administrator would be seeking is essentially the review of legality of a national measure that (allegedly contrary to national rules) obliged a company to pay taxes. Viewed in this light, a dispute of a similar nature would be a classic administrative or tax law dispute, with it naturally following that the defendant is the authority that exercises that (enforcement) power in the given case.

37. The logic of the latter approach would be one of (rather private law) restitution of assets. What would be sought is recovery of the money, thus pursuing whoever is in possession of that sum at the material time. The identity of the defendant would shift to whoever possesses the sums in question at any given time.

38. Regardless of the fact that Directive 2010/24 does not refer to this specific issue, I have little doubt that, in view of the general scheme and logic of the directive, the correct approach is the former. I consider that such an action, in so far as it challenges the validity of an enforcement measure taken by the authorities of the requested Member State and carried out in accordance with its own legislation, has to be brought against the authorities of that State.

39. Directive 2010/24 establishes common rules on mutual assistance for the recovery of claims relating to taxes, duties and other measures. ( 7 ) As noted in recital 7 of the directive, such mutual assistance may take the form of an exchange of information (Chapter II of the directive, Articles 5 to 7), of assistance for the notification of documents (Chapter III of the directive, Articles 8 and 9), or of recovery or precautionary measures (Chapter IV of the directive, Articles 10 to 20).

40. In all three cases, the directive provides not only for a distribution of powers between the authorities of the applicant Member State and those of the requested Member State, but also, as a general rule, for the application of the lex auctoritatis, according to which the acts carried out by the authorities of a Member State are governed by (and hence, their validity is subject to) the law of that Member State. ( 8 ) This is the case for the rules on exchange of information, ( 9 ) on assistance for the notification of documents, ( 10 ) and, in particular, those on recovery or precautionary measures.

41. Regarding recovery measures, I recall that pursuant to Article 13(1) of the directive, claims for which a request for recovery is made must be treated as if they were claims of the requested Member State. More specifically, the requested authority is to make use of the powers and procedures provided under the laws, regulations or administrative provisions of the requested Member State applying to claims concerning the same or a similar tax or duty.

42. Concerning precautionary measures, it follows from the second subparagraph of Article 14(4) and from Article 16(1) of the directive that they can only be adopted by the requested Member State if that is allowed by the legislation of that State.

43. More generally, Article 14 of Directive 2010/24 lays down rules governing disputes arising out of the application of the directive. Under Article 14(1), disputes concerning the claim or the instruments permitting enforcement drawn up by the applicant Member State, as well as disputes concerning the validity of a notification made by a competent authority of that Member State, fall within the competence of the competent bodies of that State. Conversely, according to Article 14(2) disputes concerning the enforcement measures or the validity of a notification made by an authority of the requested Member State are to be brought before the competent body of that State. It follows from Kyrian that the division of powers set out by Article 14(1) and (2) results from the fact that each of the legal acts or measures concerned by these provisions is subject to a different legislation, ( 11 ) namely the legislation of the Member State whose authorities carried out the contested act or adopted the contested measure. As a result, the competent body of each Member State only examines the legality of acts carried out and measures adopted by the authorities of that Member State in the light of the legislation of that State. ( 12 )

44. The third subparagraph of Article 14(4) also provides a clear example of the application of the lex auctoritatis rule in cases concerning the competent authorities of the two Member States involved. The first subparagraph of Article 14(4) states that, when an action is brought under Article 14(1) in the applicant Member State, the requested authority must in principle suspend the enforcement procedure, as far as the contested part of the claim is concerned, pending the decision of the body competent in the matter. However, under the third subparagraph of Article 14(4), the applicant authority may, in accordance with the laws, regulations and administrative practices in force in the applicant Member State, ask the requested authority to recover a contested claim or the contested part of a claim, in so far as the relevant laws, regulations and administrative practices in force in the requested Member State allow such action.

45. All in all, the abovementioned provisions clearly attest to the general logic of the directive: (i) the acts carried out and measures adopted by a Member State are, as a general rule, governed by the legislation of that State (lex auctoritatis); (ii) any dispute concerning those acts or measures is to be brought before the competent body of that Member State, which will examine them in the light of its national legislation.

46. From the combination of those two elements, the identity of the defendant in such cases emerges rather naturally as a point (iii): the defendant in such a dispute can only be the national authority which exercised the power in a given case (by adopting or omitting to adopt the contested act or measure).

47. Thus, if one contests, as in the case at hand, an enforcement measure carried out by the authorities of the requested Member State, what is being contested is the validity of the exercise of public power by that State. The defendant must then logically be the public authority of the requested Member State.

48. It might be added that such a conclusion is also in line with the principle of full assimilation of claims set out by Article 13(1) of Directive 2010/24. According to that provision, claims for which a request for recovery is made must be treated as if they were claims of the requested Member State. If claims coming from another Member State are to be fully assimilated to national claims in terms of the procedure of recovery (when some money is paid in), it only makes sense to assimilate them to national claims also when it comes to disputing an element related to that recovery (when the money might potentially be paid out). Full assimilation requires assimilation in both directions. Therefore, as would occur in a challenge concerning any (enforcement) measure adopted by the authorities of a Member State, the defendant must by definition be the authority which adopted the contested (recovery) measure.

3. The (im)possible alternatives

49. I find that the approach just outlined is the correct one also when briefly considering the alternatives. If an action such as the one in the main proceedings should be brought against the Member State that requested the recovery, in particular because the sum of money at stake was subsequently transferred to that State, then the action for restitution should be brought against the State which is in possession of the money. ( 13 ) In such a scenario, both fora where such an action could potentially be brought would lead to rather questionable results.

50. The first possibility would be to bring the action against the applicant Member State before the courts of that State. In the case at hand, this would result in the Estonian courts hearing an action against Estonian authorities based on an act (the allegedly incorrect enforcement measure) carried out by Finnish authorities in Finland. Moreover, the rules for that action would flow from the Finnish Law on the restitution of assets to the insolvency estate, which was invoked by the insolvency administrator in order to challenge the payments made by Metirato pursuant to the forced recovery procedure carried out by the Finnish authorities. The procedural route could arguably be based on Estonian law, for example on its national rules on torts or on unjust enrichment. But then again, that action against Estonia would have to be assessed on the basis of acts committed by Finnish authorities in Finland.

51. It is rather clear that this would not only lead to quite a remarkable dissociation (not to mention chaos) between forum and ius, but it would also, in effect, mean that Estonian courts must review the legality of the exercise of public power by Finnish authorities in Finland, a course of action that the Court has recently rejected in another context. ( 14 )

52. The second possibility, namely bringing the action against the applicant Member State before the courts of the requested Member State, would be similarly problematic. The first (already almost insurmountable) problem in such a case would arise out of the principle of immunity of jurisdiction, which entails that a State cannot be sued before the courts of another State. ( 15 ) It is true that the Court acknowledged that ‘in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. It may be excluded, by contrast, if the legal proceedings relate to acts performed iure gestionis which do not fall within the exercise of public powers’. ( 16 ) However, what is being challenged in the present case is a procedure of forced recovery of taxes, which undoubtedly concerns sovereign acts performed iure imperii both from a procedural perspective (in so far as it relates to a forced recovery) and from a material point of view (to the extent that it concerns a recovery of taxes). Therefore, immunity of jurisdiction would in this case prevent an action from being brought against Estonia before the Finnish courts.

53. Thus, for all the abovementioned reasons, I conclude that an action, such as the one in the main proceedings, which seeks to contest the validity of an enforcement measure taken by the authorities of the requested Member State in accordance with their own legislation must be brought against (the authorities of) that State.

4. A postscript

54. As a final point, I wish to clarify that the conclusion relating to the identity of the defendant in a case like the present one does not imply, if the action brought by the insolvency administrator is successful, that the requested Member State, namely Finland, should bear the financial consequences. Indeed, it is also embedded in the logic of Directive 2010/24 that, where a recovery measure is successfully contested by the debtor, the applicant Member State must reimburse any sum recovered by the requested Member State and already transferred to the applicant Member State. ( 17 )

55. More generally, the Court has already stressed that Directive 2010/24 is based on the principle of mutual trust, and that the implementation of the system of mutual assistance established by the directive depends on the existence of such trust between the national authorities concerned. ( 18 ) It must be added that, in a case like the present one, the principle of mutual trust between Member States applies in both directions.

56. On the one hand, the requested Member State is expected to execute a recovery procedure at the request of the applicant Member State, without being able to carry out ‘any act of recognition, supplementing or replacement’, as stated in Article 12(1) of the directive. The requested Member State is thus in principle ( 19 ) required to trust the applicant Member State and execute any request for recovery coming from the latter.

57. On the other hand, this facilitated means of recovery based on the principle of mutual trust also implies that the applicant Member State should bear the consequences in those cases where a problem arises as regards the enforcement carried out by the requested Member State. Hence, if an enforcement measure is successfully challenged, the applicant Member State has to reimburse the recovered sum of money, without protest and delay, even if it cannot be held responsible for the contested enforcement measure. ( 20 )

58. In other words, mutual trust and loyal cooperation between the Member States is an all-weather principle. It is applicable not only in cases of sunny weather (when everything runs well and, in the context of the present directive, the money is coming in), but also in cases of bad weather (when, following a potential mistake by another Member State, the money previously obtained must be returned).

B. The second question

59. By its second question, the referring court enquires whether the claims of the applicant Member State recovered by the requested Member State remain separate and distinct from the assets of the latter or whether they are merged with its own assets. In the second sentence of that question the referring court seems to rephrase the first sentence and enquires whether the directive aims exclusively to prohibit the discrimination of claims of another Member State.

60. I must admit that it is not immediately obvious to me exactly how the two parts of the question relate to one another. It is not apparent how, in view of the outlined principle of full assimilation permeating the directive, the merging of the debt of the requested Member State with that of the applicant Member State also recovered in the same enforcement procedure could or should lead to discrimination of claims of another Member State. Since I can only speculate about the exact connection between the first sentence and the second sentence of the second question, I shall address those two issues separately.

61. The first part of the second question seems to derive from the argument, raised in the main proceedings by the Finnish Government, that the assets recovered never became the property of the Finnish State, so that the claim at stake must be brought against the Estonian Tax and and Customs Board.

62. The Commission and the Finnish Government point in that regard to Article 13(5) of Directive 2010/24, according to which the requested authority shall remit to the applicant authority the amounts recovered with respect to the claim and, where applicable, the interests applied. In their view, that provision must be read as implying that the sums recovered must be kept separate from the assets of the requested Member State.

63. In my view, however, the directive does not deal with the issue whether the sum of money recovered by the requested Member State remains separate from its own assets or is merged with them.

64. Turning specifically to Article 13(5) of the directive, I fail to see how that provision, which merely sets out the last phase of the procedure of execution of the request for recovery provided for by Article 13, can be interpreted as requiring the sums to be kept separate from, or as allowing them to be merged with, the assets of the requested Member State. That provision simply concerns a different matter.

65. It is true that, according to the last subparagraph of Article 13(1), the requested Member State must recover the claim in its own currency. ( 21 ) Moreover, according to Article 23(1) of Implementing Regulation No 1189/2011, the amounts remitted to the applicant authority are to be transferred in the currency of the requested Member State and within two months of the date on which recovery was effected.

66. However, beyond those specific provisions concerning the transfer of the sums obtained, the directive does not determine the legal, economic or accounting status of those sums during the period between their recovery from the debtor and their transfer to the applicant Member State. The mere fact that the sums are recovered in the currency of the requested Member State and transferred in that currency does not necessarily imply that these sums are (or are not) merged with the assets of the requested Member State. This is simply a matter for each Member State to determine, as long as it complies with its obligation to remit, within two months, the amounts recovered and the applicable interest.

67. In any event, I note that even if those sums are kept separate from the assets of the requested Member State, in my view this would have no influence on the reply to be given to the question of who the defendant should be in an action such as the one in the main proceedings. Indeed, to the extent that the first part of the second question were to be understood as a variant to the issue of the identity of the defendant, ( 22 ) for the reasons set out above in Section A, I consider that irrespective of any accounting standards adopted, the defendant in such an action must be the requested Member State.

68. Turning to the second part of the second question, whereby the referring court asks whether the directive aims exclusively to prohibit the discrimination of claims of another Member State, I recall that the principle of full assimilation set out by the first subparagraph of Article 13(1) of the directive entails that claims of other Member States must be treated as if they were national claims, in particular with regard to the powers and procedures provided under the legislation of the requested Member State for identical or similar claims.

69. The third subparagraph of Article 13(1) provides for an exception to that principle, whereby the requested Member State is not obliged to grant other Member States’ claims preferences accorded to similar claims arising in that Member State, except where otherwise agreed between the Member States concerned or provided in the law of the requested Member State. This seems to be the only exception to the general rule set out in the first subparagraph of Article 13(1) and, therefore, to the rule according to which the requested Member State must not treat claims of other Member States less favourably than it would treat similar or identical national claims.

70. However, the principle of full assimilation does not have a bearing, in my view, on the question whether the sum of money recovered by the requested Member State remains separate from its own assets or is merged with them. Therefore, understood in this way, the second part of the second question does not change the conclusion I have reached on the first part of this question and it does not modify the answer that I suggest the Court provide to the first and third questions.

V. Conclusion

71. In the light of the foregoing, I suggest that the Court reply to the questions raised by the Helsingin käräjäoikeus (District Court, Helsinki, Finland) as follows: Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures must be interpreted in the sense that an action, such as the one in the main proceedings, which seeks to contest the validity of an enforcement measure taken by the authorities of the requested Member State in accordance with their own legislation must be brought against (the authorities of) that State.

( 1 ) Original language: English.

( 2 ) Council Directive of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures ( OJ 2010 L 84, p. 1 ).

( 3 ) I understand that this payment was ‘voluntary’ to the extent that Metirato paid at the request of the Finnish enforcement authorities, without there being any need to adopt any further enforcement measures concerning (the assets of) the company. However, since that payment took place pursuant to the request made by the Finnish enforcement authorities, I also understand that that payment took place in the context of the enforcement procedure launched by those authorities.

( 4 ) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1; ‘the Insolvency Regulation’).

( 5 ) The directive does not define the notion of ‘enforcement measures’. The Court only interpreted this notion once, in the judgment of 14 January 2010, Kyrian (C‑233/08, EU:C:2010:11), although in the context of the legal predecessor of Article 14(2) of Directive 2010/24, namely Article 12(3) of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other (OJ 1976 L 73, p. 18), as amended by Council Directive 2001/44/EC of 15 June 2001 (OJ 2001 L 175, p. 17). In paragraph 47 of that judgment, the Court held that notifications (which were not explicitly mentioned by Article 12(3) of Directive 76/308) constituted enforcement measures.

( 6 ) See, regarding Directive 76/308, judgment of 14 January 2010, Kyrian (C‑233/08, EU:C:2010:11, paragraphs 40, 49 and 50).

( 7 ) See, regarding Directive 76/308, judgments of 14 January 2010, Kyrian (C‑233/08, EU:C:2010:11, paragraph 34), and of 18 October 2012, X (C‑498/10, EU:C:2012:635, paragraph 44).

( 8 ) See, by analogy, the Opinion of Advocate General Cruz Villalón in Weltimmo (C‑230/14, EU:C:2015:426, point 50), and the position of the Court stating that ‘it follows from the requirements derived from the territorial sovereignty of the Member State concerned, the principle of legality and the concept of the rule of law that the exercise of the power to impose penalties cannot take place, as a matter of principle, outside the legal limits within which an administrative authority is authorised to act subject to the law of its own Member State’: judgment of 1 October 2015, Weltimmo (C‑230/14, EU:C:2015:639, paragraph 56). Emphasis added.

( 9 ) See for example Article 5(2)(c) or Article 7(2) of the directive.

( 10 ) See Article 9 of the directive, as well as Article 11 and Article 12(1) of Commission Implementing Regulation (EU) No 1189/2011 of 18 November 2011 laying down detailed rules in relation to certain provisions of Directive 2010/24 ( OJ 2011 L 302, p. 16 ).

( 11 ) See judgment of 14 January 2010, Kyrian (C‑233/08, EU:C:2010:11, paragraph 40).

( 12 ) See judgment of 26 April 2018, Donnellan (C‑34/17, EU:C:2018:282, paragraphs 43 and 44). As I noted (in a different legislative context, but with the same logic) in my Opinion in Astellas Pharma (C‑557/16, EU:C:2017:957, point 97), it is not without reason that the rules on jurisdiction tend to be based primarily on the formal element of the authorship of an act, that is to say, who issued the act that is being challenged.

( 13 ) As hinted at above in point 37 of this Opinion.

( 14 ) See, with regard to Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), judgment of 14 March 2018, Astellas Pharma (C‑557/16, EU:C:2018:181, paragraph 40).

( 15 ) See judgment of 19 July 2012, Mahamdia (C‑154/11, EU:C:2012:491, paragraph 54).

( 16 ) Judgment of 19 July 2012, Mahamdia (C‑154/11, EU:C:2012:491, paragraph 55).

( 17 ) In that regard, the third subparagraph of Article 14(4) of the directive provides that if the result of a challenge brought before the competent body of the applicant Member State pursuant to Article 14(1) is favourable to the debtor, the applicant authority shall be liable for reimbursing any sums recovered. Similarly, according to Article 23(1) of Implementing Regulation No 1189/2011, where recovery measures applied by the requested authority are contested for a reason not falling within the responsibility of the applicant Member State, if the requested authority has transferred the sums recovered to the applicant authority and the challenge is subsequently favourable to the party who brought it, the latter authority must return the recovered amounts.

( 18 ) Judgment of 26 April 2018, Donnellan (C‑34/17, EU:C:2018:282, paragraph 41).

( 19 ) The Court held in its judgment of 26 April 2018, Donnellan (C‑34/17, EU:C:2018:282, paragraph 61) that it is only in exceptional situations (such as the one in that case, where an authority of a Member State had requested an authority of another Member State to recover a claim relating to a fine of which the person concerned was unaware) that a requested authority may legitimately refuse a request for assistance based on the directive.

( 20 ) As is apparent from Article 23(1) of Implementing Regulation No 1189/2011 (see footnote 17 above).

( 21 ) In that regard, I note that Article 18(1) of Implementing Regulation No 1189/2011 provides that ‘if the currency of the requested Member State is different from the currency of the applicant Member State, the applicant authority shall express [in the uniform instrument permitting enforcement that must accompany every request for recovery] the amount of the claim to be recovered in both currencies’. Therefore, the amount for which the recovery procedure is carried out in the requested Member State is calculated, in the currency of that State, at the stage of the request made by the applicant Member State.

( 22 ) As an extension (or reinforcement) of the ‘follow the money’ approach (above, point 37), essentially suggesting not only that the Finnish authorities do not currently possess the sum in question, but that they never actually owned that sum in the first place.