Transportes Urbanos y Servicios Generales SAL v Administración del Estado.

• Jurisdiction: European Union
• Celex Number: 62008CJ0118
• ECLI: ECLI:EU:C:2010:39
• Docket Number: C-118/08
• Date: 26 January 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-118/08

Transportes Urbanos y Servicios Generales SAL

v

Administración del Estado

(Reference for a preliminary ruling from the Tribunal Supremo)

(Procedural autonomy of the Member States – Principle of equivalence – Action for damages against the State – Breach of European Union law – Breach of the Constitution)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. European Union law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals

1. Although it is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with the legal rules of the European Union, it has jurisdiction to give the national court full guidance on the interpretation of European Union law in order to enable it to determine the issue of compatibility for the purposes of the case before it.

To that end, the origin – whether legislative, regulatory or judicial – of the rules of national law whose compatibility with European Union law the national court must assess, in the light of the guidance on interpretation provided by the Court, has no effect whatsoever on the latter’s jurisdiction to rule on the reference for a preliminary ruling.

(see paras 23-24)

2. European Union law precludes the application of a rule of a Member State under which an action for damages against the State, alleging a breach of that law by national legislation which has been established by a judgment of the Court of Justice of the European Communities given pursuant to Article 226 EC, can succeed only if the applicant has previously exhausted all domestic remedies for challenging the validity of a harmful administrative measure adopted on the basis of that legislation, when such a rule is not applicable to an action for damages against the State alleging breach of the Constitution by national legislation which has been established by the competent court.

The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of European Union law and to similar actions alleging infringement of national law. In the light of their purpose and their essential characteristics, the two actions for damages concerned may be regarded as similar since, first, they have exactly the same purpose, namely compensation for the loss suffered by the person harmed as a result of an act or an omission of the State and, second, the only difference between the two actions concerned is the fact that the breaches of law on which they are based are established, in respect of one, by the Court in a judgment given pursuant to Article 226 EC and, in respect of the other, by a judgment of the competent national court. That fact, in the absence of other factors demonstrating that there are further differences between those actions, cannot suffice to establish a distinction between those two actions in the light of the principle of equivalence. Accordingly, the principle of equivalence precludes the application of such a rule.

(see paras 33, 36, 43-46, 48 and operative part)

JUDGMENT OF THE COURT (Grand Chamber)

26 January 2010 (*)

(Procedural autonomy of the Member States – Principle of equivalence – Action for damages against the State – Breach of European Union law – Breach of the Constitution)

In Case C‑118/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal Supremo (Spain), made by decision of 1 February 2008, received at the Court on 18 March 2008, in the proceedings

Transportes Urbanos y Servicios Generales SAL

v

Administración del Estado,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano (Rapporteur), J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot, R. Silva de Lapuerta and C. Toader, Presidents of Chambers, C.W.A. Timmermans, A. Rosas, K. Schiemann, T. von Danwitz, A. Arabadjiev and J.-J. Kasel, Judges,

Advocate General: M. Poiares Maduro,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 22 April 2009,

after considering the observations submitted on behalf of:

– Transportes Urbanos y Servicios Generales SAL, by C. Esquerrá Andreu, abogado,

– the Spanish Government, by J. López-Medel Báscones, acting as Agent,

– the Commission of the European Communities, by R. Vidal Puig and M. Afonso, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 July 2009,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the principles of effectiveness and equivalence in the light of the rules applicable in the Spanish legal system to actions for damages against the State in respect of a breach of European Union law.

2 The reference has been made in proceedings between Transportes Urbanos y Servicios Generales SAL (‘Transportes Urbanos’) and the Administración del Estado regarding the dismissal of the action for damages brought by that company against the Spanish State in respect of a breach of European Union law.

Legal context

The Sixth Directive

3 Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 95/7/EC of 10 April 1995 (OJ 1995 L 102, p. 18) (‘the Sixth Directive’), provides in Article 17(2) and (5), in the version resulting from Article 28f thereof:

‘2. In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay:

(a) value added tax due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person;

(b) value added tax due or paid in respect of imported goods within the territory of the country;

(c) value added tax due pursuant to Articles 5(7)(a), 6(3) and 28a(6);

…

5. As regards goods and services to be used by a taxable person both for transactions covered by paragraphs 2 and 3, in respect of which value added tax is deductible, and for transactions in respect of which value added tax is not deductible, only such proportion of the value added tax shall be deductible as is attributable to the former transactions.

This proportion shall be determined, in accordance with Article 19, for all the transactions carried out by the taxable person.

…’

4 Article 19 of the Sixth Directive sets out the criteria for the calculation of the deductible proportion provided for in the first subparagraph of Article 17(5) thereof.

National law

5 Article 163 of the Spanish Constitution (‘the Constitution’) provides:

‘Where a court or...