Surgicare - Unidades de Saúde SA v Fazenda Pública.
Date: 2015-02-12
17. As regards, in the first place, the lack of precision as to the provisions of EU law of which an interpretation is requested, it should be recalled that, according to the case-law of the Court, where a question referred for a preliminary ruling merely refers to EU law, and does not state which provisions of EU law are in issue, the Court must extract from all the factors provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of EU law requiring an interpretation, having regard to the subject-matter of the dispute (see, to that effect, judgments in Bekaert , 204/87, EU:C:1988:192, paragraphs 6 and 7, and Kattner Stahlbau , C‑350/07, EU:C:2009:127, paragraph 26).
19. It must be borne in mind, in that regard, that the prevention of tax evasion, avoidance and abuse is an objective recognised and encouraged by EU Directives in the field of VAT (see judgments in Gemeente Leusden and Holin Groep , C‑487/01 and C‑7/02, EU:C:2004:263, paragraph 76; Halifax and Others , C‑255/02, EU:C:2006:121, paragraph 71; R ., C‑285/09, EU:C:2010:742, paragraph 36; Tanoarch , C‑504/10, EU:C:2011:707, paragraph 50; and Bonik , C‑285/11, EU:C:2012:774, paragraph 35).
22. As regards, in the third place, the allegedly incorrect presentation of the national law in the order for reference, the Court must take account of the factual and legal context as described in the order for reference. The determination of the applicable national legislation ratione temporis  is a question of interpretation of national law and thus does not fall within the jurisdiction of the Court in the context of a request for a preliminary ruling (see judgment in Texdata Software , C‑418/11, EU:C:2013:588, paragraphs 29 and 41). Therefore, the question referred must be answered having regard to the version of Article 63 of the CPPT that was, according to the referring court, applicable at the material time.
26. In the absence of any EU rules in the area, the means of preventing VAT fraud falls within the internal legal order of the Member States under the principle of procedural autonomy of the latter. In that regard, it is apparent from the Court’s settled case-law that it is for the domestic legal system of each Member State, in particular, to designate the authorities responsible for combatting VAT fraud and to lay down detailed procedural rules for safeguarding rights which individuals derive from EU law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgments in Marks & Spencer , C‑62/00, EU:C:2002:435, paragraph 34; Fallimento Olimpiclub , C‑2/08, EU:C:2009:506, paragraph 24; Alstom Power Hydro , C‑472/08, EU:C:2010:32, paragraph 17; and, ADV Allround , C‑218/10, EU:C:2012:35, paragraph 35).
27. It is for the referring court to determine whether the national measures are compatible with those principles, having regard to all the circumstances of the case (see, to that effect, judgment in Littlewoods Retail and Others , C‑591/10, EU:C:2012:478, paragraph 30). However, the Court, when giving a preliminary ruling, may provide the referring court with all indications that may assist it in that regard (see, in particular, to that effect, judgment in Partena , C‑137/11, EU:C:2012:593, paragraph 30).
28. As regards, first, the principle of effectiveness, it should be recalled that every case in which the question arises whether a national procedural provision makes the exercise of rights arising under the EU legal order impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. For those purposes account must be taken of the basic principles which lie at the basis of the domestic judicial system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct procedure (see the judgments in Peterbroeck , C‑312/93, EU:C:1995:437, paragraph 14, and Fallimento Olimpiclub , EU:C:2009:506, paragraph 27).
30. As regards, second, the principle of equivalence, it should be noted that compliance with that principle requires that the national rule in question apply without distinction to actions based on infringement of EU law and those based on infringement of national law having a similar purpose and cause of action (see judgment in Littlewoods Retail and Others , EU:C:2012:478, paragraph 31).
33. Furthermore, even though the national legislature must ensure the effective implementation of that objective, it remains the case that it is required, in that regard, to respect the requirements of effective judicial protection of the rights that individuals derive from EU law, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment in Banif Plus Bank , C‑472/11, EU:C:2013:88, paragraph 29 and case-law cited).
34. Having regard to all the foregoing considerations, the answer to the question referred is that Directive 2006/112 must be interpreted as meaning that it does not preclude the mandatory preliminary application of a national administrative procedure, such as that laid down by Article 63 of the CPPT, in the event that the revenue authorities suspect the existence of an abusive practice.
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