Finančné riaditeľstvo Slovenskej republiky v BB construct s.r.o.
Date: 2017-10-26
16


In that regard, it is necessary to recall that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is obvious that the interpretation of EU 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 or legal material necessary to give a useful answer to the questions submitted to it (judgment of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 30 and the case-law cited).
21


The Court has held that, outside the limits laid down therein, Article 273 of the VAT Directive does not specify either the conditions or the obligations which the Member States may impose and therefore gives the Member States a margin of discretion with regard to the means of ensuring collection of all the VAT due on their territory and for combating fraud (see, to that effect, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 43 and the case-law cited).
24


However, the measures which the Member States may adopt under Article 273 of the VAT Directive to ensure the correct collection of the tax and to prevent evasion must not go further than is necessary to attain those objectives and must not undermine the neutrality of VAT (judgments of 21 October 2010, Nidera Handelscompagnie, C‑385/09, EU:C:2010:627, paragraph 49 and the case-law cited, and of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 44 and the case-law cited).
25


It is for the referring court to determine whether that statutory rule is compatible with the requirements stated in the preceding paragraph, having regard to all the circumstances of the case in the main proceedings. Nevertheless, in accordance with settled case-law, the Court may provide the referring court with all indications which may assist it in resolving the dispute before it (see, to that effect, judgments of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 36 and the case-law cited, and of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 46).
27


The obligation to provide a guarantee, in such circumstances, could lead, in certain cases, to an outcome going beyond what is necessary to ensure the correct collection of VAT and the prevention of tax evasion (see, by analogy, judgment of 10 July 2008, Sosnowska, C‑25/07, EU:C:2008:395, paragraph 24 and the case-law cited).
29


Secondly, as regards the principle of fiscal neutrality, which was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment, it must be held that taxpayers who have not complied with their tax obligations, in particular their obligation to register, are not in a situation comparable to that of taxpayers who comply with their obligation to register (see, by analogy, judgment of 5 October 2016, Maya Marinova, C‑576/15, EU:C:2016:740, paragraph 49). Therefore, the principle of fiscal neutrality cannot be interpreted as precluding the obligation of providing a guarantee, such as that at issue in the main proceedings.
31


In that regard, it must be recalled that Article 49 of the Charter enshrines the principles of legality and proportionality of criminal offences and penalties, according to which, inter alia, no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed; and that, in accordance with the principle ne bis in idem laid down in Article 50 of the Charter, no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in the European Union in accordance with the law. The application of that principle presupposes that the measures which have already been adopted against a person by means of a decision that has become final are of a criminal nature (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 33).
35


The protection conferred by Article 16 covers the freedom to exercise an economic or commercial activity, and the freedom of contract and free competition (judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42).
36


According to the case-law of the Court, the freedom to conduct a business is not absolute. It may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 28; see also, to that effect, judgment of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 45 and 46).
43


As regards the principle of equal treatment, it must be noted that that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. The elements which characterise various situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter of the provisions in question and of the aim they pursue, whilst account must be taken for that purpose of the principles and objectives of the field to which the measure at issue relates (judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 23 and 26, and of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraphs 41 and 42).