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Case C-634/11: Reference for a Preliminary Ruling from the High

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Case C-634/11: Reference for a Preliminary Ruling from the High 10.3.2012 EN Official Journal of the European Union C 73/15 Parties to the main proceedings Question referred Appellant on a point of law: T-Mobile Austria GmbH Does the Sixth Directive ( 1 ) allow, in the event that the VAT initially deducted in accordance with Article 20 of the Sixth Directive is adjusted in such a way that the amount of the deduction must be reimbursed in full or in part, that amount Respondent on a point of law: Verein für Konsumentenin­ to be charged to a person other than the taxable person who formation applied the deduction in the past, in particular — as is the case when Article 12a of the Wet (op de omzetbelasting 1968) (Law on turnover tax 1968) is applied — to a person to whom a Questions referred property has been supplied by that taxable person? 1. Is Article 52(3) of Directive 2007/64/EC ( 1) to be interpreted as meaning that it is also applicable to the contractual relationship between a mobile phone operator, as payee, and that operator’s private customer (the consumer), as ( 1 ) Sixth Council Directive 77/388/EEC of 17 May 1977 on the payer? 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). 2. Are a cash payment form signed by the payer in person and/or the procedure for ordering transfers based on a signed cash payment form and the agreed procedure for ordering transfers through online banking (telebanking) to be regarded as ‘payment instruments’ within the meaning of Article 4.23 and Article 52(3) of Directive 2007/64/EC? Reference for a preliminary ruling from the High Court of Ireland (Ireland) made on 9 December 2011 — Anglo Irish Bank Corporation Ltd v Quinn Investments Sweden AB and others 3. Is Article 52(3) of Directive 2007/64/EC to be interpreted as precluding the application of provisions of national law (Case C-634/11) which prohibit a payee from levying charges in general and from levying different charges for different payment (2012/C 73/28) instruments in particular? Language of the case: English Referring court ( 1 ) Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the High Court of Ireland internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1). Parties to the main proceedings Applicant: Anglo Irish Bank Corporation Ltd Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 December 2011 — Staatssecretaris van Financiën v Pactor Vastgoed BV Defendants: Quinn Investments Sweden AB, Sean Quinn, Ciara Quinn, Collette Quinn, Sean Quinn Junior, Brenda Quinn, Aoife (Case C-622/11) Quinn, Stephen Kelly, Peter Darragh Quinn, Niall McPartland Indian Trust AB (2012/C 73/27) Language of the case: Dutch Referring court Questions referred Hoge Raad der Nederlanden 1. The within reference concerns Article 28 of Council Regu­ lation (EC) No 44/2001 of 22 December 2000 on juris­ diction and the recognition and enforcement of judgments in civil and commercial matters ( 1) (‘Council Regulation (EC) Parties to the main proceedings No 44/2001’) (‘Article 28’) and the procedures to be adopted by a national court (the courts of ‘State A’) in Appellant: Staatssecretaris van Financiën adjudicating upon an objection under Article 28 to the jurisdiction of that court to hear and determine a set of proceedings (‘the third proceedings’) in circumstances Respondent: Pactor Vastgoed BV where the courts of State A are:- C 73/16 EN Official Journal of the European Union 10.3.2012 (a) seised first of a set of proceedings (‘the first proceedings’) Action brought on 13 December 2011 — European which may be related to proceedings (‘the second Commission v Republic of Poland proceedings’) commenced before the Courts of another Member State (‘State B’); and (Case C-639/11) (b) seised also of a set of proceedings (‘the third proceed­ (2012/C 73/29) ings’) which may be related to the second proceedings; and Language of the case: Polish Parties (c) presented with an objection pursuant to Article 28 of Council Regulation (EC) No 44/2001 to the jurisdiction Applicant: European Commission (represented by: G. Wilms, of the Courts of State A to hear and determine the G. Zavvos and K. Herrmann, acting as Agents) third proceedings based on an argument that the second proceedings (before the Courts of State B) and the third proceedings (before the Courts of State Defendant: Republic of Poland A) are related actions within the meaning of the said Article 28. Form of order sought 2. Specifically, the judgment of the Court of Justice of the — Declare that, by making the registration in Poland of private European Union (the ‘Court of Justice’) is requested in motor vehicles which are new or have been previously relation to the following questions: registered in other Member States and which have their steering equipment on the right-hand side dependent on the transfer of the steering wheel to the left-hand side, the (1) Whether it is necessary for the Courts of State A to Republic of Poland has failed to fulfil its obligations under await the outcome of an anticipated application to and Article 2a of Directive 70/311/EEC relating to type approval decision by the Courts of State B as to whether or not of steering equipment, ( 1 ) Article 4(3) of Framework the Courts of State B should stay or dismiss the second Directive 2007/46/EC on EC type approval for motor proceedings pursuant to Article 28 of Council Regu­ vehicles ( 2 ) and Article 34 of the Treaty on the Functioning lation (EC) No 44/2001 prior to the Courts of State A of the European Union; taking a decision on whether to stay or dismiss the third proceedings; — order the Republic of Poland to pay the costs. (2) If it is not necessary for the Courts of State A to await the outcome of an anticipated application to and decision by the Courts of State B as to whether or Pleas in law and main arguments not the Courts of State B should stay or dismiss the The Commission argues that the Republic of Poland is in breach second proceedings pursuant to Article 28 of Council of Article 2a of individual Directive 70/311/EEC, Article 4(3) of Regulation (EC) No 44/2001 prior to the Courts of State Framework Directive 2007/46/EC and Article 34 TFEU. A taking a decision on whether to stay or dismiss the third proceedings, whether the Courts of State A are entitled to have regard to the fact of the first Traffic in the Republic of Poland drives on the right. In order proceedings in deciding whether to stay or dismiss the for a motor vehicle to be registered in Poland, Polish provisions third proceedings; require a certificate attesting that the vehicle has passed a technical inspection. Pursuant to regulations issued by the 3 (3) In the event that the Courts of State B decide that they Minister for Infrastructure, ( ) the outcome of the technical do have jurisdiction over the second proceedings, inspection of vehicles with the steering wheel on the right- whether the Courts of State A are entitled to have hand side from the outset cannot be positive (that is to say, regard to the fact of the first proceedings in deciding the technical condition is deemed not to be in accordance with whether to stay or dismiss the third proceedings the technical requirements in force). As a result, private motor pursuant to Article 28 of Council Regulation (EC) vehicles which have the steering wheel on the right-hand side No 44/2001; and which have been approved in Member States in which traffic drives on the left (the United Kingdom, Ireland, Malta and Cyprus) cannot be registered in Poland. The Polish auth­ (4) Whether the fact that the third proceedings could have orities also fail to take account of the fact that such motor been (but were not) maintained as a counterclaim in the vehicles may previously have been registered in other Member first proceedings by the Plaintiff in the third proceedings States in which traffic drives on the right. is a material factor and, if so, the proper considerations which the Courts of State A should afford to that factor in their determination as to whether they should decline In the Commission’s view, the fact that it is impossible to jurisdiction over, or stay, the third proceedings pursuant register, in Poland, private motor vehicles (new and second- to Article 28 of Council Regulation (EC) No 44/2001. hand) which have been brought to Poland from a Member State in which traffic drives on the left, primarily by Polish nationals taking advantage of the benefit of free movement within the European Union cannot find justification in any ( 1 ) OJ L 12, p. 1 overriding requirement of public interest in the form of ensuring road safety..
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