© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
A4. Interpretation
EU LEGISLATION​
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Consider wording, context and objective
"[33] In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 28 October 2021, Magistrat der Stadt Wien (Grand Hamster – II), C‑357/20, EU:C:2021:881, paragraph 20)." (I GmbH C-228/20)
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- Purpose used to depart from normal meaning of VAT exemption
"[26] In that regard, whilst it is true that the term ‘persons’ is, on its own, wide enough to include not only natural persons, but also unincorporated associations and corporate persons, in normal linguistic usage only natural persons take part in sport even if this is done in groups of persons.
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[29] Thus, if the words ‘services … supplied … to persons taking part in sport’ in Article 13A(1)(m) of the Sixth Directive were interpreted as meaning that they require that the services in question be directly supplied to natural persons taking part in sport within an organisational structure put in place by a sports club, the exemption provided for by that provision would depend on the existence of a legal relationship between the service supplier and the persons taking part in sport within such a structure. Such an interpretation would mean that a large number of supplies of services essential to sport would be automatically and inevitably excluded from the benefit of that exemption, irrespective of the question whether those services were directly linked to persons taking part in sport and who was the true beneficiary of those services. Such a result would, as the Commission correctly maintains, run counter to the purpose of the exemption provided for by that provision which is to extend the benefit of that exemption to services supplied to individuals taking part in sport." (Canterbury Hockey Club C-253/07)
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Ordinary meaning​
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- Consider usual meaning in everyday language
"[18] For want of any definition at all in Directive 2006/112 of the concept of ‘sport’, the meaning and scope of that term must, as the Court has consistently held, be determined by considering its usual meaning in everyday language, while also taking into account the context in which it is used and the purposes of the rules of which it is part (see, to that effect, judgments of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case-law cited, and of 26 May 2016, Envirotec Denmark, C‑550/14, EU:C:2016:354, paragraph 27).
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[22] Examination of the context of Article 132(1)(m) of Directive 2006/112 therefore argues in favour of an interpretation that the concept of ‘sport’ appearing in that provision is limited to activities satisfying the ordinary meaning of the term ‘sport’, characterised by a not negligible physical element, but not covering all activities that may, in one way or another, be associated with that concept." (The English Bridge Union Limited C-90/16)
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- Usually autonomous meaning but national law may be relevant to application
"[29] Admittedly, it is settled case-law that, in view of the purpose of the VAT Directive, which is intended to determine the basis of assessment for VAT in a uniform manner and in accordance with EU rules, the status of taxable person must be interpreted in a uniform manner in all the Member States and assessed exclusively on the basis of the criteria set out in Article 9(1) of the VAT Directive (judgment of 17 September 2014, Skandia America (USA), filial Sverige, C‑7/13, EU:C:2014:2225, paragraph 23; see, by analogy, judgment of 8 June 2000, Breitsohl, C‑400/98, EU:C:2000:304, paragraph 48).
[32] However, taking provisions of national law into account may be useful in determining whether, in circumstances such as those in the main proceedings, the criteria for considering that an economic activity has been carried out independently, recalled in paragraphs 23 and 29 of the present judgment, are satisfied (see, to that effect, judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 55)." ​(ET C-213/24)
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Interpret consistently with the treaty and general principles
"[32] However, it is settled case‑law that a provision of secondary Community law should as far as possible be given the interpretation which renders the provision consistent with the Treaty and the general principles of EU law (Case C‑314/89 Rauh [1991] ECR I‑1647, paragraph 17, and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 174 and the case‑law cited)." (Orfey Balgaria EOOD C-549/11)
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Other language versions to be considered in case of doubt
"[26] In addition, it follows from settled case-law that the need for a uniform interpretation of Community directives makes it impossible for the text of a provision to be considered, in case of doubt, in isolation; on the contrary, it requires that it be interpreted and applied in the light of the versions existing in the other official languages (Case C-296/95 EMUTabac and Others [1998] ECR I‑1605, paragraph 36, and Case C‑321/96 Mecklenburg [1998] ECR I-3809, paragraph 29).
[27] In those circumstances, the reply to the first question must be that the word ‘charitable’ in the English version of Article 13A(1)(g) and (h) of the Sixth Directive has its own independent meaning in Community law which must be interpreted taking account of all the language versions of that directive
(Kingcrest Associates Ltd C-498/03)
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- Wording of one language version cannot serve as the sole basis for overriding others
"[46] In accordance with settled case-law, provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union (judgment of 26 July 2017, Mengesteab, C‑670/16, EU:C:2017:587, paragraph 82 and the case-law cited).
[47] It is also settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions (see, to that effect, judgment of 28 October 2021, KAHL and Roeper, C‑197/20 and C‑216/20, EU:C:2021:892, paragraph 33 and the case-law cited)." (I GmbH C-228/20)
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- Resolve differences based on purpose and general scheme
"[44]... Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C‑372/88 Cricket St Thomas [1990] ECR I‑1345, paragraphs 18 and 19; Case C‑149/97 Institute of the Motor Industry [1998] ECR I‑7053, paragraph 16; and Case C‑451/08 Helmut Müller [2010] ECR I‑0000, paragraph 38)." (Commission v. Netherlands C-41/09)
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"[22] It must be borne in mind in this regard that, according to settled case‑law, the necessity for uniform application and accordingly for uniform interpretation of a Community measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3, and Joined Cases C-261/08 and C-348/08 Zurita García and Choque Cabrera [2009] ECR I‑0000, paragraph 54)." (Eulitz C-473/08 - text of German exemption for private tuition different to all others)
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- Different implementations of the concept of 'mainly'
"[38] That interpretation must take account of the divergence between certain language versions of the provision in question. The French, Italian, Spanish and Portuguese versions of Article 15(6) of the Sixth Directive use the word ‘essentially’ or the equivalent thereof, whereas the Danish, German, English and Dutch versions use, respectively, the words ‘hovedsageligt’, ‘hauptsächlich’, ‘chiefly’ and ‘hoofdzakelijk’. According to the second group of expressions, the provision in question refers to airlines whose operations on international routes merely exceed their non-international operations, whereas, according to the first group of expressions, the international operations should account for almost all the business of those companies.
[39] It may be deduced from the foregoing analysis that, in any event, it is necessary to treat as airlines operating chiefly on international routes those whose operations on non-international routes are found to be considerably less extensive than their international activities." ​(Cimber Air C-382/02)
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External aides to interpretation​
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- Travaux preparatoires
"[49] At an EU level the travaux préparatoires for legislative instruments are used to assist in the interpretation of EU legislation (see for example France and others v Commission C-68/94 in the context of anti-dumping duties paragraph 167).
[50] We have taken the view that whether or not the Undertaking is formally a travaux préparatoire to the Acceptance or the ADD Reg it is a document which is one to which we should have regard but only in the final stages of our analysis and more as a way of confirming or challenging the conclusion we reach on the proper interpretation of the scheme of exemption from ADD as provided for in Article 3(1) purposively interpreted." (Push Investment Group Limited v. HMRC [2025] UKFTT 1534 (TC), Judge Brown KC)
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- Declarations in the course of preparatory works not an aide where no reference in legislation
"[43] In the second place, as regards the issue, also raised by the referring court and by the German Government, whether an exemption such as the one in Paragraph 4(13) of the UStG has its basis in report No 7 of the meeting of the Council of the European Union of 17 May 1977 concerning Article 13 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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, ‘the Sixth Directive’), it should be recalled that, according to that report, ‘the Council and the [European] Commission declare that Member States may exempt making the common property available for use, maintenance, repair and other management purposes, as well as the supply of heat and similar goods by associations of residential property owners to the property owners themselves’.
[44] However, it is settled case-law that declarations made in the course of preparatory work leading to the adoption of a directive cannot be used for the purpose of interpreting that directive where no reference is made to the content of the declaration in the wording of the provision in question, and, moreover, such declarations have no legal significance (see, inter alia, judgment of 22 October 2009, Swiss Re Germany Holding, C‑242/08, EU:C:2009:647, paragraph 62 and the case-law cited)." (WEG C-449/19)
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- Wording of the Sixth Directive
"[47] However, according to the third recital in the preamble to Directive 2006/112, the recasting of the structure and wording of the Sixth Directive aims to ensure that the provisions are presented in a clear and rational manner, which will not, in principle, bring about material changes in the existing legislation, even if a small number of substantive amendments have, in any event, to be made in so far as that is inherent in such a recasting exercise.
[48] In the absence of any substantive amendment of point 1 of Annex III, the general scheme of that provision should be examined in the light of the wording of point 1 of Annex H to the Sixth Directive, which expresses the intention of the EU legislature when it drew up the list of goods and services which may be subject to a reduced rate of VAT.
[49] In that regard, from a semantic point of view, the use of a semi-colon after the phrase ‘[f]oodstuffs … for human and animal consumption’ clearly indicates that the phrase contained in point 1 of Annex H to the Sixth Directive is made up of three quite distinct parts. It must therefore be concluded that, since the intentions of the EU legislature are unchanged, the phrase contained in point 1 of Annex III is made up of the same three parts." (Commission v. Netherlands C-41/09)
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- Other EU legislation with a different purpose not of assistance
"[62] However, it must be pointed out that the purpose of Regulation No 504/2008 is very different from that of point 1 of Annex III. That regulation takes into account the fact that a horse may be consumed by humans and provides, accordingly, rules which seek to ensure that a horse which enters the human food chain is not unfit for consumption. In that context, in order to improve the administration of veterinary medicinal products, that regulation states that an equine animal is in principle intended for slaughter for human consumption." (Commission v. Netherlands C-41/09)
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Differences in language in related provisions​
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- Not to imply in restriction expressly set out in related provision
"[29] Accordingly, the term ‘additional income’ within the meaning of Article 134(b) of Directive 2006/112 cannot be construed in such a way as to lead to a restriction of the scope of the exemption in Article 132(1)(m) of that directive on the basis of the status of the recipients of the supply in question as members or non-members, a criterion that was deliberately excluded when the exemption was defined." ​(Bridport and West Dorset Golf Club Limited C-495/12)
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"[72] Furthermore, contrary to the Greek Government’s suggestion, the mere fact that a taxable person such as CopyGene is an establishment governed by private law does not automatically mean that such a taxable person’s activities could not come within the exemption under Article 13A(1)(b) of the Sixth Directive. When the Community legislature intended to restrict the grant of the exemptions under Article 13A(1) of the Sixth Directive to certain non-profit-making or non-commercial entities, it said so expressly, as is clear from subparagraphs (l), (m) and (q) thereof (see Case C‑498/03 Kingscrest Associates and Montecello [2005] ECR I-4427, paragraph 37)." (Copygene C-262/08)
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"[37] Furthermore, as the Commission of the European Communities and the United Kingdom correctly argued, when the Community legislature intended to restrict the grant of the exemptions under Article 13A(1) of the Sixth Directive to certain non-profit-making or non-commercial entities, it said so expressly, as is clear from subparagraphs (l), (m) and (q) thereof." ​(Kingcrest Associates Ltd C-498/03)
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- Not to disregard limit of exemption to "certain" supplies which does not apply to other exemptions
"[35] It is all the more appropriate to give that literal interpretation to Article 132(1)(m) of the VAT Directive in view of the fact that, out of the 17 transactions exempted under points (a) to (q) of Article 132(1) of the VAT Directive, it is only those described in points (m) and (n) of that paragraph that apply to only some of the services referred to, none of the other points in the paragraph using the term ‘certain’ or any similar word. Therefore, unless the wording of the other points is to be disregarded, that term cannot be interpreted as a simple reference to the conditions for the application of the exemption which derive from the wording of Article 132(1)(m) and (n) of that directive." (Golfclub Schloss Igling C-488/18)
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Otiose language​
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- More general provision of directive replicating condition already contained in specific provision (but applying more widely)
"[33] ... Consequently, as the Commission also points out, the condition set out in the first indent of Article 13A(2)(a) essentially replicates the criterion of non-profit-making organisation as contained in Article 13A(1)(m).
[34] The Netherlands Government argues that such an interpretation does not take account of the fact that the first indent of Article 13A(2)(a) must, as an additional condition, necessarily have a content extending beyond that of the basic provision. In response to that argument, it suffices to observe that that condition does not refer only to Article 13A(1)(m) of the Sixth Directive but also to a large number of other compulsory exemptions which have a different content." (Kennemer Golf C-174/00)
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- Exemption for public broadcasting does not mean that such activities are supplies for consideration
"[31] The same is true of the Czech Government’s argument that the exemption provided for under Article 13A(1)(q) of the Sixth Directive makes sense only if public broadcasting activities such as those at issue in the main proceedings are considered to fall within the scope of that directive.
[32] In that regard, it is sufficient to note, first, that, although that provision provides an exemption for ‘activities of public radio and television bodies other than those of a commercial nature’, that provision is nevertheless applicable only on the condition that those activities should be ‘subject to VAT’ within the meaning of Article 2 of the Sixth Directive, and, second, that it is not to be interpreted as extending the scope of application of that directive, as defined in Article 2." (ÄŒeský rozhlas C-11/15)
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Drafting errors​
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- Interpretation cannot override clear wording
"[46] As regards the alleged error and the Commission’s argument that its reading of the relevant provision is also consistent with the logic of the common system of VAT, it must be observed that, even assuming the Commission’s submissions are correct, it is not for the Court, as the Advocate General observed in point 65 of his Opinion, to make such an interpretation with the aim of correcting Article 2(1) of the Thirteenth Directive.
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[51] The Court cannot, in the face of the clear and precise wording of a provision such as Article 2(1) of the Thirteenth Directive, interpret that provision with the intention of correcting it and thereby extending the obligations of the Member States relating to it (see, by analogy, Case C‑48/07 Les Vergers du Vieux Tauves [2008] ECR I-10627, paragraph 44)." (Commission v. UK C-582/08)
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STRICT INTERPRETATION OF EXCLUSIONS​
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- Strict interpretation
"[19] At paragraph 13 of the same judgment the Court held that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that turnover tax is to be levied on all services supplied for consideration by a taxable person." (Bulthuis-Griffioen C-453/93)
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- CJEU not choosing strictest possible interpretation
Identical domestic flights taxed differently depending on whether supplier operated mainly internationally
"[28] Thus, contrary to the contentions of the Commission and the Danish Government, the exemption provided for in Article 15 of the Sixth Directive relates formally, both in paragraphs 7 and 9 and in paragraph 6 of that article, to domestic flights carried out by aircraft used by companies whose business is mainly international.
[29] The fact, referred to by the Commission, that the exemptions within a Member State are provided for in Article 13 of the Sixth Directive and that the conditions for exemption in Article 15 thereof are completely harmonised cannot have the effect of giving Article 15 a meaning different from that which is clear from its wording." ​(Cimber Air C-382/02 - on what is now Art 148(e))
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- Not to deprive exemption of intended effect
"[34]...Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 must be construed in such a way as to deprive the exemptions of their intended effect (judgment of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, paragraph 57)." (I GmbH C-228/20)
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"[25] As is clear from settled case-law, the terms used to specify the exemptions in Article 132 of the VAT Directive are to be interpreted strictly. Nevertheless, the interpretation of those terms must be consistent with the objectives underlying the exemptions and must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 must be construed in such a way as to deprive the exemptions of their intended effects (see, inter alia, Case C‑174/11 Zimmermann [2012] ECR, paragraph 22 and case-law cited)." ​(MDDP C-319/12)
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[29] Thus, if the words ‘services … supplied … to persons taking part in sport’ in Article 13A(1)(m) of the Sixth Directive were interpreted as meaning that they require that the services in question be directly supplied to natural persons taking part in sport within an organisational structure put in place by a sports club, the exemption provided for by that provision would depend on the existence of a legal relationship between the service supplier and the persons taking part in sport within such a structure. Such an interpretation would mean that a large number of supplies of services essential to sport would be automatically and inevitably excluded from the benefit of that exemption, irrespective of the question whether those services were directly linked to persons taking part in sport and who was the true beneficiary of those services. Such a result would, as the Commission correctly maintains, run counter to the purpose of the exemption provided for by that provision which is to extend the benefit of that exemption to services supplied to individuals taking part in sport." (Canterbury Hockey Club C-253/07)
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- But a lacuna may exist in relation to the subject-matter covered by the exemption
"[36] The Commission submits that to refuse to allow an exemption in situations such as that of the main proceedings is contrary to the common objective of the specific exemptions referred to in Article 13A(1)(i) and (j) of the Sixth Directive, and would create a lacuna in the system established by those two provisions. According to the Commission, tuition given by private teachers may indeed, in certain circumstances, be comparable to the education provided by the ‘bodies’ mentioned in Article 13A(1)(i).
[37] Nevertheless, the mere fact that the two categories of exemption in Article 13A(1)(i) and (j) of the Sixth Directive seek, inter alia, to promote ‘school or university education’ as an activity which is in the public interest cannot support the proposition that, together, those two provisions create a system capable of exempting from VAT activities which do not satisfy the conditions of one or other of them, the terms of which, as observed in paragraphs 16 to 19 of this judgment, are to be interpreted strictly and cover only the activities which are listed therein and described in detail." (Haderer C-445/05 - in relation to VAT exemption not applying on the supply by a teacher of tuition under a contract with an educational establishment)
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- Consistent with fiscal neutrality
"[25] As is clear from settled case-law, the terms used to specify the exemptions in Article 132 of the VAT Directive are to be interpreted strictly. Nevertheless, the interpretation of those terms must be consistent with the objectives underlying the exemptions and must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 must be construed in such a way as to deprive the exemptions of their intended effects (see, inter alia, Case C‑174/11 Zimmermann [2012] ECR, paragraph 22 and case-law cited)." ​(MDDP C-319/12)
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"[30] It follows, besides, from that interpretation that the exemption for transactions effected by undertakings or organisations mentioned in Article 13A(1)(m) of the Sixth Directive would not benefit certain persons who participate in sport solely because they participate in it within a structure managed by a club. That interpretation would not be consistent with the principle of fiscal neutrality, inherent in the common system of VAT, in compliance with which the exemptions provided for in Article 13 of the Sixth Directive must be applied (see, to that effect, Case C‑283/95 Fischer [1998] ECR I-3369, paragraph 27). In fact, that principle precludes, in particular, economic operators who effect the same transactions being treated differently in respect of the levying of VAT (see, to that effect, Case C‑216/97 Gregg [1999] ECR I‑4947, paragraph 20). It follows that that principle would be disregarded if the possibility of invoking the benefit of the exemption under Article 13A(1)(m) of the Sixth Directive depended on the organisational structure particular to the sporting activity practised." (Canterbury Hockey Club C-253/07)
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- Conditions concerning status/identity of economic agent have independent EU meaning
"[18] It is settled case-law that the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law (see the judgment in Case 348/87 Stichting Uitvoering Financiële Acties [1989] ECR 1737, paragraph 11). That must also be true of the specific conditions laid down for those exemptions to apply and in particular of those concerning the status or identity of the economic agent performing the services covered by the exemption." (Bulthuis-Griffioen C-453/93)
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- Power to apply additional conditions to exemptions cannot be used to apply conditions included for some exemptions but deliberately excluded
"[29] Accordingly, the term ‘additional income’ within the meaning of Article 134(b) of Directive 2006/112 cannot be construed in such a way as to lead to a restriction of the scope of the exemption in Article 132(1)(m) of that directive on the basis of the status of the recipients of the supply in question as members or non-members, a criterion that was deliberately excluded when the exemption was defined." ​(Bridport and West Dorset Golf Club Limited C-495/12)
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- Strict interpretation does not apply to place of supply rules
"[32] Before addressing the grounds of appeal it is important to recognise, as Mr Milne emphasised, that like the corresponding provision in the Sixth Directive, article 59(c) of the Principal VAT Directive is not an exemption that must be strictly construed." (HMRC v. Gray & Farrar International LLP [2023] EWCA Civ 121, Simler LJ)
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SPECIAL ARRANGEMENTS
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- Special arrangements (e.g. margin schemes) only to be applied to the extent necessary to achieve their objective
"[35] It is true that the arrangements for the taxation of the profit margin made by the taxable dealer on the supply of second-hand goods, works of art, collectors’ items and antiques constitute a special arrangement for VAT – derogating from the general scheme of the Sixth Directive – which, like the other special arrangements provided for in Articles 24, 25 and 26 of that directive, must be applied only to the extent necessary to achieve their objective (see, respectively, for the application of the arrangements provided for in Article 26 and Article 25, Joined Cases C-308/96 and C-94/97 Madgett and Baldwin [1998] ECR I‑6229, paragraph 34, and Harbs, cited above, paragraph 27)." (Jyske C-280/04)
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- Interpret consistently with fiscal neutrality
"[36] However, the fact remains that the interpretation of the terms used by the provisions of Article 26a of the Sixth Directive must be consistent with the objectives pursued by the special arrangements established by that article and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT." (Jyske C-280/04)
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- Second hand margin scheme interpreted as applying even where resale is secondary purpose
"[42] In the circumstances, taking account of the aims of Article 26a of the Sixth Directive, that article is to be interpreted as meaning that it does not exclude from the category of taxable dealer sale and leaseback undertakings which purchase cars second-hand, when the resale forms part of their normal business and the intention to resell is present at the moment of purchase, even when the reselling is secondary in comparison with the leasing." (Jyske C-280/04)
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CASE LAW​
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Case law on previous legislation applies where wording essentially identical​
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"[18] It must be noted at the outset that Article 13(A)(1)(b) and (c) of the 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, ‘the Sixth Directive’) and Article 132(1)(b) and (c) of Directive 2006/112, having an essentially identical wording, must be interpreted in the same way and that consequently the case-law of the Court on the first of these provisions lends itself to serving as a basis for the interpretation of the second provision (see, to that effect, judgment of 10 June 2010, Future Health Technologies, C‑86/09, EU:C:2010:334, paragraph 27)." (Peters C-700/17)
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Order rather than judgment ​
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- Where answer may be clearly deduced from existing case-law
"[24] Pursuant to the first subparagraph of Article 104(3) of the Rules of Procedure of the Court of Justice, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law, the Court may, after hearing the Advocate General, at any time give its decision by reasoned order." (Purple Parking Ltd C-117/11)
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Nature of answer given by CJEU constrained by framing by national court​
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- CJEU refusing to take into account additional matters relied on by tax authority
"[28] However, the German Government refers to an additional factor relating to national law. It states that it is apparent from an administrative circular, applicable since 1 January 2009, that even private hospitals which are not approved under Paragraph 108 of the SGB V may qualify for exemption from VAT where their services correspond to those performed by hospitals managed by public bodies or by approved hospitals within the meaning of Paragraph 108 of the SGB V and the costs of those services are largely borne by health insurance funds or other social security bodies.
[29] In that regard, it should be borne in mind that, in proceedings under Article 267 TFEU, the Court is only empowered to rule on the interpretation or validity of EU law in the light of the factual and legal situation as described by the referring court, in order to provide that court with such guidance as will assist it in resolving the dispute before it (judgment of 17 December 2020, Onofrei, C‑218/19, EU:C:2020:1034, paragraph 18 and the case-law cited).
[30] Thus, it is for the Court to answer the national court’s questions as they have been framed and within the limits set by the national court." (I GmbH C-228/20)
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Reformulation of questions by CJEU​
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- CJEU will reformulate to provide answer that is useful where necessary
"[17] According to settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, judgments of 13 December 1984, Haug-Adrion, 251/83, EU:C:1984:397, paragraph 9, and of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 78).
[18] In the present case, taking into account the factual context as provided in the order for reference, the questions referred must be understood as inviting the Court to determine whether the provisions of Article 2(1)(c), Article 24(1), Article 26(1)(b), Article 28 and Article 75 of the VAT Directive must be interpreted as meaning that the representation of a party in court by a lawyer in circumstances where a service is provided free of charge, but where the legislation of the Member State concerned provides that the opposing party, in the event that that party is ordered to pay the costs, is also ordered to pay to that lawyer fees, the amount of which is regulated by that legislation, must be regarded as a supply of services for consideration or a supply of services carried out free of charge which must be treated as a supply of services for consideration." (Zlakov C-744/23)
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- CJEU will extract all relevant information from grounds for decision to refer and EU law
"[44] The referring court asks for these questions to be answered in the event that the Court should find that Article 132(1)(m) of the VAT Directive has direct effect. However, even though that provision does not have direct effect, it should be recalled that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of European Union law that require interpretation in view of the subject matter of the dispute in the main proceedings (see, in particular, judgment of 27 March 2014, Le Rayon d’Or, C‑151/13, EU:C:2014:185, paragraphs 25 and 26)."(Golfclub Schloss Igling C-488/18)
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- Will refer to other provisions and principles of EU law where necessary
"[33] According to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgment of 16 May 2019, Plessers, C‑509/17, EU:C:2019:424, paragraph 32 and the case-law cited)." (MB C-277/24)
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"[30] As a preliminary point, it should be borne in mind that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions and principles of EU law which the national court has not referred to in its questions (see, to that effect, judgment of 7 September 2023, Groenland Poultry, C‑169/22, EU:C:2023:638, paragraph 47 and the case-law cited).
[31] In the present case, it is apparent from the request for a preliminary ruling that an essential element characterising the situation at issue in the main proceedings lies in the fact that, according to the referring court, it is now practically impossible for Greentech to obtain reimbursement of the VAT which the seller, namely Greenfiber, unduly invoiced to it and paid to the State budget. In such a situation, the principle which should be taken into particular account is the principle of effectiveness and not the principle of legal certainty or the principle of the protection of legitimate expectations." (Greentech C-640/23)
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Applying the law to the facts​
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- CJEU will not apply the law to the facts
"[22] Indeed, the Court is not competent to apply the rules of law to a specific situation, Article 267 TFEU only empowering the Court to rule on the interpretation of the Treaties and of acts adopted by the institutions of the European Union (judgment of 16 June 2022, DuoDecad, C-596/20, EU:C:2022:474, paragraph 37 and the case law cited).
[23] In this regard, it is recalled in points 8 and 11 of the recommendations of the Court of Justice of the European Union to national courts concerning the introduction of preliminary rulings (OJ 2019, C 380, p. 1) that the request for a preliminary ruling cannot relate to questions of fact raised in the context of the main proceedings and that the Court does not itself apply EU law to those proceedings (judgment of 16 June 2022, DuoDecad, C-596/20, EU:C:2022:474, paragraph 38).
[24] It follows from the foregoing that, with the exception of the first question, under (c), the Court, seized by way of a preliminary ruling, is manifestly incompetent to answer the first, second and third preliminary questions, since, by these questions, the referring court asks the Court to assess the various circumstances of the dispute before it with regard to the right to deduct VAT and the concept of "fraud"." (Pegazus Busz C-262/24)
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Overruling earlier CJEU decisions​
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- CJEU making 'adjustments' regarding its earlier case law
"[Fn 54] I note that, on several occasions, the Court made adjustments regarding its case-law on the interpretation of the exemption provided for in the current Article 132(1)(b) of the VAT Directive. See, for an example of a judgment overturning a previous solution, judgment of 7 September 1999, Gregg (C‑216/97, EU:C:1999:390, paragraph 15) or, for a judgment reinterpreting a previous judgment in a non-literal way in order to distinguish an earlier judgment, judgment of 18 September 2019, Peters (C‑700/17, EU:C:2019:753, paragraph 35)." ​(I GmbH C-228/20, AG Hogan)
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- No hierarchy between CJEU judgments
"[121] More fundamentally, there is no (as it were) hierarchy between judgments of the CJEU. The binding nature of the LuP and Verigen judgments is unaffected by whether passages in their reasoning draw conclusions from earlier case-law that might be debated." (GSTS Pathology Services LLP v. HMRC [2014] UKFTT 211 (TC), Judge Paines QC)
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