Varzim Sol — Turismo, Jogo e Animação SA v Fazenda Pública.
Date: 2012-02-16
27. In that connection, it should be noted, first, that the cooperative arrangements established by Article 267 TFEU are based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of national rules with European Union law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of European Union law necessary to enable that court to rule on the compatibility of national rules with European Union law (Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 36, and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 37).
28. Although it is true that the literal wording of the questions referred for a preliminary ruling by the national court calls on the Court to rule on the compatibility of a provision of national law with European Union law, there is nothing to prevent the Court from giving an answer of use to the national court by providing the latter with the guidance as to the interpretation of European Union law necessary to enable that court to rule itself on the compatibility of the national rules with European Union law (see, to that effect, Placanica and Others , paragraph 37).
29. Second, it should be recalled that the Court may reject a reference for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61, and Case C‑450/09 Schröder [2011] ECR I‑2497, paragraph 17).
30. With regard, more particularly, to the information that must be provided to the Court in an order for reference, that information does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the Governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. For those purposes, it is necessary that the national court should define the factual and legislative context of the questions which it is asking or, at the very least, explain the factual circumstances on which those questions are based (see Schröder , paragraph 18).
31. Accordingly, when the information provided by the national court is sufficient to explain the subject-matter of the dispute in the main proceedings and the main issues raised by it for the European Union legal order as well as to enable, first, the Member States to submit their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in the proceedings before the Court and, second, the Court to provide an answer which will be of use to the national court, the reference for a preliminary ruling must be regarded as admissible (see, to that effect, Schröder , paragraphs 19, 21 and 22).
36. It should be remembered that, according to settled case-law, the right to deduct provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and, in principle, may not be limited. That right must be exercised immediately in respect of all the taxes charged on input transactions. Any limitation of the right to deduct VAT affects the level of the tax burden and must be applied in a similar manner in all the Member States. Consequently, derogations are permitted only in the cases expressly provided for by the Sixth Directive (see, inter alia, Commission  v France , paragraph 28).
37. In that regard, Article 17(1) of the Sixth Directive provides that the right to deduct is to arise at the time when the deductible tax becomes chargeable and Article 17(2) entitles the taxable person, in so far as the goods and services are used for the purposes of his taxable transactions, to deduct from the VAT which he is liable to pay the tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable person (see Commission  v France , paragraph 29).
38. As regards mixed taxable persons, under the first and second subparagraphs of Article 17(5) of the Sixth Directive the right to deduct is calculated according to a proportion determined in accordance with Article 19 thereof. The third subparagraph of Article 17(5) nevertheless permits Member States to provide for one of the other methods for determining the right to deduct that are listed in that paragraph, namely, in particular, determination of a separate proportion for each sector of business or deduction on the basis of the use of all or part of the goods and services for a specific activity (see Commission  v France , paragraph 30).
39. Article 11A(1)(a) of the Sixth Directive provides that subsidies directly linked to the price of goods or services are taxable in the same way as those goods or services. As regards subsidies which are not directly linked to the price, Article 19(1) of that directive provides that the Member States may include them in the denominator for calculating the proportion applicable where a taxable person carries out, at the same time, transactions in respect of which VAT is deductible and others which are exempt (see Commission  v France , paragraph 31).