New Valmar BVBA v Global Pharmacies Partner Health Srl.
Date: 2016-06-21
23


In that regard, it is appropriate to note that, since it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court (see, inter alia, judgment of 18 February 2016 in Finanmadrid EFC, C‑49/14, EU:C:2016:98, paragraph 27), the question referred must be answered on that assumption, the merits of which, however, the referring court must assess, taking into account, in particular, and as the Advocate General observed in points 25 to 28 of his Opinion, the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual relations (Rome I) (OJ 2008 L 177, p. 6).
25


In that regard, it is appropriate to recall that the Court must take into account, under the division of jurisdiction between the Courts of the European Union and the national courts, the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Consequently, whatever criticism the Belgian Government may have made of the interpretation of national law adopted by the referring court, this reference for a preliminary ruling must be examined in the light of that court’s interpretation of that law (see, to that effect, inter alia, judgment of 29 October 2009 in Pontin, C‑63/08, EU:C:2009:666, paragraph 38).
28


In that regard, suffice it to state that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even where those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, inter alia, judgment of 17 December 2015 in Szemerey, C‑330/14, EU:C:2015:826, paragraph 30).
29


Consequently, even if, formally, the referring court has limited its question to the interpretation of Article 45 TFEU alone, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of European Union law which require interpretation in view of the subject matter of the dispute in the main proceedings (see, by analogy, inter alia, judgment of 17 December 2015 in Szemerey, C‑330/14, EU:C:2015:826, paragraph 31).
33


In that regard, it must, however, be borne in mind that the harmonisation of national legislation being brought about by the European Union rules on VAT is only gradual and partial (see, to that effect, inter alia, judgment of 26 February 2015 in VDP Dental Laboratory and Others, C‑144/13, C‑154/13 and C‑160/13, EU:C:2015:116, paragraph 60 and the case-law cited).
36


The Court has held that a national measure applicable to all traders active in the national territory whose actual effect is greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State is covered by the prohibition laid down by Article 35 TFEU (see, to that effect, judgment of 16 December 2008 in Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraphs 40 to 43).
37


Moreover, it should be borne in mind that any restriction, even minor, of one of the fundamental freedoms enshrined by the FEU Treaty is prohibited by it (see, to that effect, judgment of 1 April 2008 in Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 52 and the case-law cited).
42


It follows that legislation, such as that at issue in the main proceedings, even if it concerns the language version in which the details on an invoice — not the content of the underlying contractual relationship — must be drawn up, produces, because of the legal uncertainty it creates, restrictive effects on trade which are likely to deter the initiation or continuation of contractual relationships with an undertaking established in the Dutch-speaking region of the Kingdom of Belgium.
45


Furthermore, the restrictive effects of that legislation cannot be considered to be too indirect or too uncertain for it to be possible to regard that legislation, in accordance with the Court’s case-law stemming from, inter alia, the judgments of 7 March 1990 in Krantz (C‑69/88, EU:C:1990:97, paragraphs 10 and 11), and of 13 October 1993 in CMC Motorradcenter (C‑93/92, EU:C:1993:838, paragraphs 10 to 12), as not constituting a restriction within the meaning of Article 35 TFEU.
46


As is apparent from paragraphs 40 to 43 of this judgment, such legislation is likely to have an impact, however minor, on contractual relations, particularly since, as was indicated at the hearing, it is not unusual for the drawing-up of an invoice to be the only concrete manifestation of those relations. Moreover, as the Advocate General observed in point 69 of his Opinion, that impact depends not on a future and hypothetical event, but on the exercise of the right to free movement of goods (see, by analogy, inter alia, judgment of 1 April 2008 in Government of the French Community and Walloon Government, C‑212/06, EU:C:2008:178, paragraph 51).
48


According to settled case-law, a national measure restricting the exercise of the fundamental freedoms guaranteed may be allowed only if it pursues a legitimate objective in the public interest, is appropriate to ensuring the attainment of that objective and does not go beyond what is necessary to attain the objective pursued (see, to that effect, inter alia, judgment of 1 October 2015 in Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 70).
50


In that regard, it must be recalled that the objective of promoting and encouraging the use of one of the official languages of a Member State constitutes a legitimate objective which, in principle, justifies a restriction on the obligations imposed by EU law (see, to that effect, judgments of 28 November 1989 in Groener, C‑379/87, EU:C:1989:599, paragraph 19; of 12 May 2011 in Runevič-Vardyn and Wardyn, C‑391/09, EU:C:2011:291, paragraph 85, and of 16 April 2013 in Las, C‑202/11, EU:C:2013:239, paragraphs 25 to 27).
51


Moreover, the Court has previously recognised that the need to protect the effectiveness of fiscal supervision constitutes an objective of general interest capable of justifying a restriction on the exercise of the fundamental freedoms guaranteed by the Treaty (see, to that effect, inter alia, judgments of 20 February 1979 in Rewe-Zentral, 120/78, EU:C:1979:42, paragraph 8, and of 15 May 1997 in Futura Participations and Singer, C‑250/95, EU:C:1997:239, paragraph 31).
54


In the present case, as the Advocate General observed in points 90 to 92 of his Opinion, legislation of a Member State which not only required the use of the official language of that Member State for the drawing-up of invoices relating to cross-border transactions but which also, in addition, permitted an authentic version of such invoices to be drawn up in a language known to the parties concerned, would be less prejudicial to the free movement of goods than the legislation at issue in the main proceedings, while being appropriate for securing the objectives pursued by that legislation (see, by analogy, judgment of 16 April 2013 in Las, C‑202/11, EU:C:2013:239, paragraph 32).