Opinions nº C-19/19 of Tribunal de Justicia, January 14, 2020

Resolution Date:January 14, 2020
Issuing Organization:Tribunal de Justicia
Decision Number:C-19/19
 
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(Reference for a preliminary ruling - Directive 76/308/EEC Mutual assistance for the recovery of claims - - Directive 2008/55/EC - Articles 6 and 10 - Directive 2010/24/EU - Article 13(1) - Set-off of tax claim recovered on behalf of requesting Member State against tax debt of requested Member State - Status of recovered claim - Interpretation of term ‘privilege’)

  1. Introduction

    1. This reference for a preliminary ruling concerns the interpretation of Article 6(2) and Article 10 of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund (EAGGF), and of the agricultural levies and customs duties (2) together with the second paragraph of Article 6, and Article 10 of Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures. (3) 2. The reference has been made in proceedings between the État belge (Belgian State) and Pantochim SA, in liquidation . In essence, the questions posed relate to whether a tax claim held by Pantochim in respect of the Belgian State can be set off against a value added tax (VAT) claim of the German State against the same company. The German State had requested assistance from the Belgian State on the basis of Directive 76/308, as transposed under Belgian law, in order to recover the debt in question.

    2. I propose to return presently to the facts of this case, but it is first necessary to set out the relevant legal materials.

  2. Legal framework

    1. EU law

      1. Directive 7 6 /308

      2. Article 6 of Directive 76/308 in its original version provides:

        ‘1. At the request of the applicant authority, the requested authority shall, in accordance with the laws, regulations or administrative provisions applying to the recovery of similar claims arising in the Member State in which the requested authority is situated, recover claims which are the subject of an instrument permitting their enforcement.

      3. For this purpose any claim in respect of which a request for recovery has been made shall be treated as a claim of the Member State in which the requested authority is situated, …’

      4. Article 10 of Directive 76/308 in its original version provides:

        ‘The claims to be recovered shall not be given preferential treatment in the Member State in which the requested authority is situated.’

      5. Directive 2008/55

      6. Recital 1 of Directive 2008/55 provides:

        ‘Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures has been substantially amended several times. In the interests of clarity and rationality the said Directive should be codified.’

      7. Article 6 of Directive 2008/55 provides:

        ‘At the request of the applicant authority, the requested authority shall, in accordance with the laws, regulations or administrative provisions applying to the recovery of similar claims arising in the Member State in which the requested authority is situated, recover claims which are the subject of an instrument permitting their enforcement.

        For this purpose any claim in respect of which a request for recovery has been made shall be treated as a claim of the Member State in which the requested authority is situated, …’

      8. Article 10 of Directive 2008/55 provides:

        ‘Notwithstanding the second paragraph of Article 6, the claims to be recovered shall not necessarily benefit from the privileges accorded to similar claims arising in the Member State in which the requested authority is situated.’

      9. Directive 2010/24/EU

      10. Directive 2008/55 was repealed with effect from 1 January 2012 by Article 29 of Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures. (4) 10. Article 10(1) of Directive 2010/24 provides:

        ‘At the request of the applicant authority, the requested authority shall recover claims which are the subject of an instrument permitting enforcement in the applicant Member State.’

      11. Article 13(1) of Directive 2010/24 provides:

        ‘For the purpose of the recovery in the requested Member State, any claim in respect of which a request for recovery has been made shall be treated as if it was a claim of the requested Member State, except where otherwise provided for in this Directive. The requested authority shall make use of the powers and procedures provided under the laws, regulations or administrative provisions of the requested Member State applying to claims concerning the same or, in the absence of the same, a similar tax or duty, except where otherwise provided for in this Directive.

        The requested Member State shall not be obliged to grant other Member States’ claims preferences accorded to similar claims arising in that Member State, except where otherwise agreed between the Member States concerned or provided in the law of the requested Member State. A Member State which grants preferences to another Member State’s claims may not refuse to grant the same preferences to the same or similar claims of other Member States on the same conditions.

        …’

      12. Article 13(5) of Directive 2010/24 provides:

        ‘Without prejudice to Article 20(1), the requested authority shall remit to the applicant authority the amounts recovered with respect to the claim and the interest referred to in paragraphs 3 and 4 of this Article.’

    2. Belgian law

      1. Article 12 of the loi du 20 juillet 1979 concernant l’assistance mutuelle en matière de recouvrement des créances relatives à certaines cotisations, droits, taxes et autres mesures (Law of 20 July 1979 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures) (Moniteur belge of 30 August 1979, p. 9457 ‘the Law of 20 July 1979’) provides:

        ‘The requested Belgian authority shall proceed with recoveries requested by the applicant foreign authority as if they were claims arising within the Kingdom [of Belgium].’

      2. Article 15 of that law states:

        ‘The claims to be recovered shall not benefit from any privilege.’

      3. Article 334 de la loi-programme du 27 décembre 2004 (Moniteur belge of 31 December 2004, p. 87006, ‘the Programme-Law of 27 December 2004’) in the version applicable up to 7 January 2009 provides:

        ‘Any sum to be repaid or paid to a debtor on the basis of legal provisions on income taxes, taxes treated as equivalent thereto, value added tax, … may be assigned without formalities by the competent official to the payment … of income taxes, taxes treated as equivalent thereto, value added tax, … where the latter are not or are no longer contested.

        The preceding paragraph shall continue to apply in the event of seizure, assignment, transfer or where there are concurrent claims or insolvency proceedings.’

      4. The first paragraph of Article 334 of the Programme-Law of 27 December 2004 as modified by Article 194 de la loi-programme du 22 décembre 2008 (Moniteur belge of 29 December 2008, p.68649, ‘the Programme-Law of 22 December 2008’) and prior to its modification by the loi du 25 décembre 2016 (the Law of 25 December 2016), as applicable to the facts from 8 January 2009 provides:

        ‘Any sum to be repaid or paid to a person,… in the course of applying tax laws which fall within the competence of Service public fédéral Finances [(Federal Public Service for Finance)] or for which the collection and recovery is insured by that Federal public service … may be assigned without formalities and at the discretion of the competent official, to the payment of sums owed by that person pursuant to the tax laws concerned or to the settlement of tax or non-tax claims the collection and recovery of which are ensured by the [Federal Public Service for Finance] … That application is limited to the uncontested amount of the debt in respect of that person.

        The preceding indent shall continue to apply in the event of seizure, assignment, transfer or where there are concurrent claims or insolvency proceedings.’

  3. The dispute in the main proceedings and the questions referred for a preliminary ruling

    1. Pantochim is a public limited company which was placed in liquidation on 26 June 2001 by a judgment of the tribunal de commerce de Charleroi (Charleroi Commercial Court, Belgium). In the course of that liquidation, Pantochim paid in full the preferential VAT debt held by the Belgian State.

    2. The Belgian State also declared in the course of the liquidation proceedings a debt of EUR 634 275.50 for VAT plus interest held by the German State. This particular VAT debt (‘the German VAT debt’) was admitted as an unsecured debt. It would appear from the request for a preliminary ruling that the...

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