1 This request for a preliminary ruling concerns the interpretation of Article 23(4) of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18), and of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between SF, a natural person who has become insolvent (‘the debtor’), and MV, the Instituto da Segurança Social IP (Social Security Institute, Portugal), the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) and Cofidis SA - Sucursal em Portugal concerning an application for discharge of debt lodged by the debtor in the insolvency proceedings concerning him. Legal context European Union law
3 Recitals 78 and 81 of the Directive on restructuring and insolvency state: ‘(78) A full discharge of debt or the ending of disqualifications after a period no longer than three years is not appropriate in all circumstances, therefore derogations from this rule which are duly justified by reasons laid down in national law might need to be introduced. For instance, such derogations should be introduced in cases where the debtor is dishonest or has acted in bad faith. Where entrepreneurs do not benefit from a presumption of honesty and good faith under national law, the burden of proof concerning their honesty and good faith should not make it unnecessarily difficult or onerous for them to enter the procedure. … (81) Where there is a duly justified reason under national law, it could be appropriate to limit the possibility of discharge for certain categories of debt. It should be possible for Member States to exclude secured debts from eligibility for discharge only up to the value of the collateral as determined by national law, while the rest of the debt should be treated as unsecured debt. Member States should be able to exclude further categories of debt when duly justified.’
4 Article 2(1)(10) of the directive is worded as follows: ‘For the purposes of this Directive, the following definitions apply: … (10) “full discharge of debt” means that enforcement against entrepreneurs of their outstanding dischargeable debts is precluded or that outstanding dischargeable debts as such are cancelled, as part of a procedure which could include a realisation of assets or a repayment plan or both’.
5 Article 20 of that directive, entitled ‘Access to discharge’, provides: ‘1. Member States shall ensure that insolvent entrepreneurs have access to at least one procedure that can lead to a full discharge of debt in accordance with this Directive. Member States may require that the trade, business, craft or profession to which an insolvent entrepreneur’s debts are related has ceased. 2. Member States in which a full discharge of debt is conditional on a partial repayment of debt by the entrepreneur shall ensure that the related repayment obligation is based on the individual situation of the entrepreneur and, in particular, is proportionate to the entrepreneur’s seizable or disposable income and assets during the discharge period, and takes into account the equitable interest of creditors. 3. Member States shall ensure that entrepreneurs who have been discharged from their debts may benefit from existing national frameworks providing for business support for entrepreneurs, including access to relevant and up-to-date information about these frameworks.’
6 Article 23 of that directive, entitled ‘Derogations’, provides, in paragraph 4 thereof: ‘Member States may exclude specific categories of debt from discharge of debt, or restrict access to discharge of debt or lay down a longer discharge period where such exclusions, restrictions or longer periods are duly justified, such as in the case of: (a) secured debts; (b) debts arising from or in connection with criminal penalties; (c) debts arising from tortious liability; (d) debts regarding maintenance obligations arising from a family relationship, parentage, marriage or affinity; (e) debts incurred after the application for or opening of the procedure leading to a discharge of debt; and (f) debts arising from the obligation to pay the cost of the procedure leading to a discharge of debt.’
7 Article 34(1) of the Directive on restructuring and insolvency provides: ‘Member States shall adopt and publish, by 17 July 2021, the laws, regulations and administrative provisions necessary to comply with this Directive, with the exception of the provisions necessary to comply with points (a), (b) and (c) of Article 28 which shall be adopted and published by 17 July 2024 and the provisions necessary to comply with point (d) of Article 28 which shall be adopted and published by 17 July 2026. They shall immediately communicate the text of those provisions to the [European] Commission. They shall apply the laws, regulations and administrative provisions necessary to comply with this Directive from 17 July 2021, with the exception of the provisions necessary to comply with points (a), (b) and (c) of Article 28, which shall apply from 17 July 2024 and of the provisions necessary to comply with point (d) of Article 28, which shall apply from 17 July 2026.’
8 Pursuant to Article 35 of that directive, which provides that it is to enter into force on the twentieth day following that of its publication in the Official Journal of the European Union , that directive entered into force on 16 July 2019. Portuguese law The CIRE
9 Article 235 of the Código da Insolvência e da Recuperação de Empresas (Insolvency and Business Recovery Code), approved by Decreto-Lei n. o 53/2004 (Decree-Law No 53/2004) of 18 March 2004 ( Diário da República I, Series I‑A, No 66, of 18 March 2004), and as amended by Lei n. o 9/2022 (Law No 9/2022) of 11 January 2022 ( Diário da República , Series I, No 7, of 11 January 2022) (‘the CIRE’), entitled ‘General principle’, is worded as follows: ‘If the debtor is a natural person, he or she may be discharged from any insolvency debts that have not been fully paid back during the insolvency proceedings or within three years of the end of those proceedings, under the conditions set out in this Chapter.’
10 Article 242(2) of the CIRE provides: ‘The granting of special advantages to an insolvency creditor by the debtor or by a third party shall be void.’
11 Article 245(2)(d) of the CIRE provides that the discharge of debt is not to include, inter alia, ‘tax and social security debts’.
12 In 2022, the Portuguese Republic transposed the Directive on restructuring and insolvency by means of Law No 9/2022 of 11 January 2022, which made no change to the list of debts excluded from the discharge of debt referred to in Article 245(2) of the CIRE, in particular tax and social security debts. That law did not provide any justification for the exclusion of those debts. The LGT
13 The Lei Geral Tributária (General Tax Law), approved by Decreto-Lei n. o 398/98 (Decree-Law No 398/98) of 17 December 1998 ( Diário da República I, Series I‑A, No 290, of 17 December 1998) (‘the LGT’), sets out and defines the general principles governing Portuguese tax law, the powers of the tax authority and the guarantees accorded to taxpayers.
14 Article 5 of the LGT provides: ‘1. Taxation seeks to meet the financial needs of the State and of other public entities and to promote social justice, equal opportunities and the necessary corrections to inequalities in the distribution of wealth and income. 2. Taxation shall comply with the principles of universality, equality, lawfulness and substantive justice.’
15 Under Article 30(2) and (3) of the LGT: ‘2. Tax debt shall be unavailable and the conditions for reducing or waiving it may only be set in compliance with the principles of equality and tax legality. 3. The provisions of the previous paragraph shall take precedence over any specific legislation.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
16 By judgment of 18 June 2018, which has become final, the debtor was declared insolvent.
17 On 23 January 2019, the court of first instance provisionally declared the debtor’s application for discharge of debt admissible.
18 On 29 July 2022, the insolvency administrator of the debtor submitted a final report, in which he stated that the debtor should be entitled to a discharge of debt.
19 By decision of 3 October 2022, the debtor was granted a discharge of debt, from which the tax and social security debts were excluded, pursuant to Article 245(2)(d) of the CIRE.
20 The debtor brought an appeal against that decision before the Tribunal da Relação do Porto (Court of Appeal, Porto, Portugal), the referring court. In support of his appeal, he argued that Article 245(2) of the CIRE was not consistent with Article 23(4) of the Directive on restructuring and insolvency, on the ground that the exclusion of tax and social security debts from the discharge of debt is not ‘duly justified’, contrary to the latter provision. In addition, that exclusion would be an obstacle to the attainment of the objectives pursued by that directive.
21 That court notes that Law No 9/2022 of 11 January 2022, transposing the directive into Portuguese law, contains no justification for that exclusion and that no such justification was provided for in the draft law either. The referring court states that, apart from any doubts concerning the compatibility of Article 245(2) of the CIRE with that directive, it also harbours doubts as to whether the exclusion provided for in that provision constitutes an obstacle, inter alia, to the objectives pursued by the FEU Treaty and the effectiveness of EU law.
22 In those circumstances, the Tribunal da Relação do Porto (Court of Appeal, Porto) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 23(4) of [the Directive on restructuring and insolvency] be interpreted as meaning that the exclusion of debts (other than those listed [in that provision]) is permitted only if it is “duly justified”? (2) Must the possibility for Member States of excluding specific categories of debt from discharge of debt (where such exclusions are duly justified as provided for in Article 23(4) of [the Directive on restructuring and insolvency]) be interpreted as allowing Member States to exclude tax debts (which are not listed in that article), thereby placing conferring a privileged status on those debts? (3) If the answer to those questions is in the affirmative, what criteria must that justification satisfy, within the meaning of EU law, in order to comply with the general principles of EU law and the protection of fundamental rights, to which the European and national legislatures are subject (“prohibition of discrimination on grounds of nationality” (Article 18 TFEU) and “freedom to conduct a business” (Article 16 of the [Charter]), in addition to the fundamental economic freedoms of the internal market)? (4) If the answer to the aforementioned question is in the negative, do the definitions (within the meaning of EU law and for the purposes of interpreting the [Directive on restructuring and insolvency]) of “debts arising from or in connection with criminal penalties” and “debts arising from ‘tortious liability’” also include tax debts as provided for in the national legislative act transposing the [Directive on restructuring and insolvency] (Law No 9/2022 of 11 January 2022)?’ Admissibility of the request for a preliminary ruling
23 The Spanish Government contends, in essence, that the request for a preliminary ruling is inadmissible on the ground that the Directive on restructuring and insolvency was not applicable to the procedure giving rise to the case in the main proceedings, given that the request for exemption at issue predated the date of entry into force of that directive.
24 In that regard, it must be noted that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court, before which a 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 of Justice. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others , C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 43 and the case-law cited).
25 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of a rule of EU law 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 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others , C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 44 and the case-law cited).
26 Moreover, it is apparent from Article 35 of the Directive on restructuring and insolvency that it entered into force on 16 July 2019. In addition, Article 34(1) of that directive provides that Member States are to adopt, publish and apply by 17 July 2021, the laws, regulations and administrative provisions necessary to comply with, inter alia, Article 23 of that directive. It follows that, as from that date, the Member States were required, under the third paragraph of Article 288 TFEU, to ensure that Article 23 of that directive was fully effective (see, to that effect, judgment of 2 September 2021, Commission v Germany (Transposition of Directives 2009/72 and 2009/73) , C‑718/18, EU:C:2021:662, paragraph 118 and the case-law cited).
27 In the present case, the discharge of debt decision which is the subject of the dispute in the main proceedings was adopted on 3 October 2022. Consequently, on that date, the court which adopted that decision was required to do so in accordance with the objectives and obligations laid down in the Directive on restructuring and insolvency in order to comply with the third paragraph of Article 288 TFEU.
28 That assessment is not called into question by the fact that the request for discharge of debt that gave rise to that decision was submitted before the date of entry into force of that directive. Article 23(4) of the Directive on restructuring and insolvency makes the possibility, for Member States, to exclude specific categories of debt from discharge of debt, to limit access to discharge of debt or to provide for a longer period for discharge subject to the condition that those derogations from discharge of debt are duly justified. In so far as that requirement of justification circumscribes the discretion of the Member States as to the adoption of those derogations, it is intended to apply also where applications for discharge of debt were made before the entry into force of that directive, but the decision on those applications is taken after the end of the period for transposition of that directive.
29 Therefore, the Directive on restructuring and insolvency applies to the dispute in the main proceedings and the request for a preliminary ruling is admissible. Consideration of the questions referred The first question
30 By its first question, the referring court asks, in essence, whether Article 23(4) of the Directive on restructuring and insolvency must be interpreted as meaning that an exclusion of a specific category of debt other than those listed in that provision from discharge of debt is possible only if it is ‘duly justified’.
31 In that regard, it should first be noted that the list of specific categories of debt included in this provision is introduced by the words ‘such as in the case of’ and that terms having the same meaning are used in the other language versions of the said provision, including the Portuguese-language version thereof. It is, therefore, apparent from the wording of that provision that the specific categories of debt listed therein are not exhaustively listed (see, to that effect, judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 37).
32 The literal interpretation of Article 23(4) of the Directive on restructuring and insolvency, according to which the list in that provision is not exhaustive, but illustrative, is borne out by recital 81 of that directive, from which it is apparent that the EU legislature considered that Member States ‘should be able to exclude further categories of debt when duly justified’ (judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 38).
33 It follows that Article 23(4) must be interpreted as meaning that the list of specific categories of debt set out therein is not exhaustive and that the Member States may exclude specific categories of debt other than those listed in that provision from discharge of debt in duly justified cases (judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 39).
34 Furthermore, having regard to the fact that the EU legislature expressly made the exercise of the power thus granted to the Member States in Article 23(4) subject to the condition that such exclusions are ‘duly justified’, the Court has held that, when the national legislature adopts such derogations, the reasons for those derogations must derive from national law or from the procedure which led to them and that those reasons must pursue a legitimate public interest (judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 42).
35 Next, both recital 78 of the Directive on restructuring and insolvency, which refers to derogations ‘duly justified by reasons laid down in national law’, and recital 81 of that directive, which refers to a reason that is ‘duly justified … under national law’, permit the inference that the EU legislature considered that it was sufficient that the detailed rules laid down for that purpose in the different national legal systems were complied with (judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 43).
36 Lastly, it must be stated that, as the Advocate General observed, in essence, in point 42 of his Opinion, the Directive on restructuring and insolvency does not require the justification for the exclusion of a specific category of debt from the discharge of debt to be provided in the act intended to transpose that directive itself.
37 As noted in paragraph 34 of the present judgment, it is apparent from that directive that the justification to be provided by a Member State in support of an exclusion such as that at issue in the main proceedings must be apparent either from the proceedings leading to it, or from national law. Thus, as regards the first situation, where, under national law, the preparatory work, preambles and explanatory memoranda for legislative or regulatory acts form an integral part of those acts or are relevant for the purposes of interpreting them and contain a justification for the exclusion of a specific category of debt from the discharge of debts, it must be held that that justification complies with the requirements of Article 23(4) of that directive (see, to that effect, judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 54). In addition, as regards the second situation, that justification may also be found in provisions of national law other than the provision containing that exclusion, such as a national constitutional, legislative or regulatory provision.
38 In the present case, it is apparent from the documents before the Court that, on the one hand, Article 103(1) of the Constituição da República Portuguesa (Constitution of the Portuguese Republic) provides that the fiscal system is to aim to satisfy the financial needs of the State and of other public entities and to ensure a just distribution of income and wealth and, on the other hand, that Articles 5 and 30 of the LGT set out objectives and principles justifying the exclusion of tax and social security debts from discharge of debt, such as the satisfaction of the financial needs of the State, the promotion of social justice and equal opportunities and the necessary corrections to inequalities in the distribution of wealth and income, while complying with the principles of universality, equality, lawfulness, substantive justice and the unavailability of tax debt. It therefore appears, a priori, that there is, in Portuguese law, a justification for that exclusion. However, it is for the referring court, which alone has jurisdiction to interpret and apply national law, to assess whether that exclusion is duly justified under national law.
39 In the light of the foregoing, the answer to the first question is that Article 23(4) of the Directive on restructuring and insolvency must be interpreted as meaning that an exclusion of a specific category of debt other than those listed in that provision from the discharge of debt is possible only if it is duly justified under national law. The second question
40 By its second question, the referring court asks, in essence, whether Article 23(4) of the Directive on restructuring and insolvency must be interpreted as meaning that the Member States have the power to exclude certain specific categories of debt from the discharge of debts, such as tax and social security debts, and thus confer on them a privileged status.
41 In order to answer that question, it must, first, be recalled, as is apparent from paragraph 33 of the present judgment, that that provision must be interpreted as meaning that the list of specific categories of debt set out therein is not exhaustive and that the Member States have the power to exclude specific categories of debt other than those listed in that provision from discharge of debt in duly justified cases.
42 Second, as regards the discretion enjoyed by the Member States in the exercise of that power, the Court found that neither the Directive on restructuring and insolvency nor the preparatory work for its adoption contain elements capable of supporting the argument that, in view of the internal coherence of the categories of debt expressly referred to in Article 23(4) of that directive, the EU legislature intended to limit the discretion of the Member States as regards the exclusion of categories of debt other than those listed in that provision, such as tax and social security debts, from discharge of debt. On the contrary, it is apparent more particularly from those preparatory works that the EU legislature had a stated intention to leave the Member States a certain discretion so that they may, when transposing that directive into their national law, take account of the local economic situation and legal structures (see, to that effect, judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 40).
43 In addition, the exclusion of debts, such as tax and social security debts, from the discharge of debts may be duly justified. Not all debts are of the same nature, creditors do not have the same status and the recovery of those debts may serve specific purposes. Thus, in view of the nature of tax and social security debts and the purpose of collecting tax and social security contributions, Member States may legitimately consider that public institutional creditors are not in a situation comparable to that of creditors in the commercial or private sector from the point of view of recovering the debts concerned. In those circumstances, the possibility of excluding tax and social security debts from the discharge of debt does not amount to unduly favouring public institutional creditors over other creditors who do not benefit from such an exclusion.
44 Accordingly, Article 23(4) of the Directive on restructuring and insolvency does not restrict the Member States’ discretion as to the choice of categories of debt other than those listed in that provision which they intend to exclude from discharge of debt (see, to that effect, judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) , C‑687/22, EU:C:2024:287, paragraph 41).
45 In the light of the foregoing, the answer to the second question must be that Article 23(4) of the Directive on restructuring and insolvency must be interpreted as meaning that Member States are free to exclude certain specific categories of debt from the discharge of debts, such as tax and social security debts, and thus confer on them a privileged status, provided that such an exclusion is duly justified under national law. The third question
46 By its third question, the referring court asks, in essence, if the examination of whether the exclusion of a specific category of debt from the discharge of debt introduced by a Member State into its national legal order is duly justified must be carried out in the light, in particular, of the principle of non-discrimination on grounds of nationality laid down in Article 18 TFEU, the freedom to conduct a business enshrined in Article 16 of the Charter and the fundamental economic freedoms of the internal market.
47 In that regard, it should be borne in mind that it follows from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that it is essential that the national court set out in its order for reference the precise reasons why it considers that a reply to its questions concerning the interpretation of certain provisions of EU law is necessary to enable it to give judgment in the dispute that has been brought before it (judgment of 28 November 2023, Commune d’Ans , C‑148/22, EU:C:2023:924, paragraph 43 and the case-law cited).
48 According to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice (judgment of 28 November 2023, Commune d’Ans , C‑148/22, EU:C:2023:924, paragraph 44 and the case-law cited).
49 Thus, in accordance with Article 94(c) of the Rules of Procedure, it is essential that the order for reference contain a statement of the reasons which prompted the national court to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (judgment of 28 November 2023, Commune d’Ans , C‑148/22, EU:C:2023:924, paragraph 46 and the case-law cited).
50 In the present case, it is clear that the order for reference does not contain any information making it possible to understand the link which the referring court establishes between the provisions of EU law which it seeks to have interpreted and the national legislation applicable to the dispute in the main proceedings.
51 In those circumstances, the third question is inadmissible. The fourth question
52 In view of the answers to the first and second questions, there is no need to answer the fourth question. Costs
53 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: 1. Article 23(4) of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency), must be interpreted as meaning that an exclusion of a specific category of debt other than those listed in that provision from the discharge of debt is possible only if it is duly justified under national law. 2. Article 23(4) of Directive 2019/1023 must be interpreted as meaning that Member States are free to exclude certain specific categories of debt from the discharge of debts, such as tax and social security debts, and thus confer on them a privileged status, provided that such an exclusion is duly justified under national law. [Signatures] * Language of the proceedings: Portuguese.