Jiří Sabou v Finanční ředitelství pro hlavní město Prahu.
Date: 2013-10-22
25. First, as regards the Charter, it must be pointed out that, as it came into force on 1 December 2009, it does not apply to the assistance procedure which led to the additional notice of assessment of 28 May 2009.
26. Next, as regards the Court’s jurisdiction in this case to interpret Directive 77/799, the fact that the requesting Member State is not bound to submit a request for assistance to another Member State does not mean that the rules relating to the request for information and the use of the information obtained by that Member State can be considered to be outside the scope of European Union law. Where a Member State decides to make use of that assistance, it must comply with the rules laid down in Directive 77/799. It is clear, in particular from the fifth recital in the preamble to that directive, that Member States must respect certain obligations in the context of mutual assistance.
28. It is clear from the case-law of the Court that the rights of the defence, which include the right to be heard, are among the fundamental rights that form an integral part of the European Union legal order (see, to that effect, inter alia, Case C‑349/07 Sopropé  [2008] ECR I‑10369, paragraphs 33 and 36). Where national legislation comes within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the criteria of interpretation required by the national court to determine whether that legislation is compatible with fundamental rights (see, inter alia, Case C‑260/89 ERT  [1991] ECR I‑2925, paragraph 42, and Sopropé , paragraphs 33 and 34).
33. The Court also mentioned that, under Article 2(1) of Directive 77/799, the tax authorities of a Member State ‘may’ request the tax authorities of another Member State for the information which they cannot obtain themselves. The Court thus pointed out that, by using the term ‘may,’ the European Union legislature indicated that national tax authorities have the possibility of making such a request, but are not in any way obliged to do so (see, to that effect, Twoh International , paragraph 32).
36. It is thus apparent from an examination of Directive 77/799, the purpose of which is to govern cooperation between the tax authorities of Member States, that it coordinates the transfer of information between competent authorities by imposing certain obligations on the Member States. The directive does not, however, confer specific rights on the taxpayer (see Twoh International , paragraph 31), and in particular it does not lay down any obligation for the competent authorities of the Member States to consult the taxpayer.
38. The Court has previously ruled that observance of the rights of the defence is a general principle of European Union law which applies where the authorities are minded to adopt a measure which will adversely affect an individual (see Sopropé , paragraph 36). In accordance with that principle, the addressees of decisions which significantly affect their interests must therefore be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (see, inter alia, C‑32/95 P Commission  v Lisrestal and Others  [1996] ECR I‑5373, paragraph 21, and Sopropé , paragraph 37). The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of European Union law, even though the European Union legislation applicable does not expressly provide for such a procedural requirement (see Sopropé , paragraph 38, and Case C‑383/13 PPU G and R [2013] ECR I‑0000, paragraph 35).