Lu Zheng v Ministerio de Economía y Competitividad.
Date: 2018-05-31
20


In that regard, it should be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 24).
21


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation 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 or legal material necessary to give a useful answer to the questions submitted to it (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 25).
27


It should be noted as a preliminary point that, according to settled case-law, 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 should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 16 and the case-law cited).
30


Although that regulation does not define the concept of ‘natural person entering or leaving’ the European Union, the Court has already held that that notion is not ambiguous and must be understood as having its normal meaning, that is to say, as referring to the movement of a natural person from a place which is not part of EU territory to a place which is part of that territory, or from a place which is part of EU territory to one which is not (judgment of 4 May 2017, El Dakkak and Intercontinental, C‑17/16, EU:C:2017:341, paragraphs 19 to 21).
36


Article 65(1)(b) TFEU provides that Article 63 TFEU, which, according to settled case-law, generally prohibits restrictions on movements of capital between Member States (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 61 and the case-law cited), is to be without prejudice to the right of Member States, inter alia, to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
37


As such, national measures which restrict the free movement of capital may be justified on the grounds set out in Article 65 TFEU provided that they observe the principle of proportionality, a condition which requires them to be appropriate for ensuring the attainment of the objective legitimately pursued and not to go beyond what is necessary in order for it to be attained (see, to that effect, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraphs 76 and 77 and the case-law cited).
38


In that respect, it must be pointed out that the Court has already accepted that the combating of money laundering, which is related to the aim of protecting public order, constitutes a legitimate aim capable of justifying a barrier to the fundamental freedoms guaranteed by the Treaty (judgment of 25 April 2013, Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraph 64 and the case-law cited).
39


In addition, with regard specifically to the obligation to declare at issue in the main proceedings, it is clear from well-established case-law that the free movement of capital, established by the Treaties, does not preclude the export of banknotes from being made conditional on a prior declaration (see, to that effect, judgments of 23 February 1995, Bordessa and Others, C‑358/93 and C‑416/93, EU:C:1995:54, paragraph 31, and of 14 December 1995, Sanz de Lera and Others, C‑163/94, C‑165/94 and C‑250/94, EU:C:1995:451, paragraph 10).
40


However, the principle of proportionality has to be observed, not only as regards the determination of factors constituting an infringement, but also the determination of the rules concerning the severity of fines and the assessment of the factors which may be taken into account in the fixing of those fines (judgment of 9 February 2012, Urbán, C‑210/10, EU:C:2012:64, paragraphs 53 and 54).
41


In particular, the administrative or punitive measures permitted under national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation (see, by analogy, judgment of 16 July 2015, Chmielewski, C‑255/14, EU:C:2015:475, paragraph 22).
42


In that context, the severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed (see, by analogy, judgment of 16 July 2015, Chmielewski, C‑255/14, EU:C:2015:475, paragraph 23).
43


In that regard, it must be recalled that the Court held that, even though under Article 9(1) of Regulation No 1889/2005 Member States enjoy a margin of discretion concerning the choice of penalties which they adopt in order to ensure compliance with the obligation to declare laid down in Article 3 of that regulation, a fine corresponding to 60% of the undeclared cash sum, where that sum is greater than EUR 50000, incurred for breach of that obligation, does not appear to be proportionate having regard to the nature of the infringement concerned. The Court held that such a fine goes beyond what is necessary in order to ensure compliance with that obligation and the fulfilment of the objectives pursued by that regulation, given that the penalty provided for in Article 9 does not seek to penalise possible fraudulent or unlawful activities, but solely a breach of that obligation (judgment of 16 July 2015, Chmielewski, C‑255/14, EU:C:2015:475, paragraphs 29 31).
48


In that regard, although questions concerning EU law enjoy a presumption of relevance, as was observed in paragraphs 20 and 21 above, it is settled case-law that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 43 and the case-law cited).
50


That question must therefore be declared inadmissible, as the function entrusted to the Court within the framework of Article 267 TFEU is to contribute to the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 42 and the case-law cited).