In its original version.
The Court had already stated in paragraph 72 of the judgment of
Judgment of
Directive 76/308 was repealed by Article 25 of Directive 2008/55 with effect from
Judgment of
According to the first recital to Directive 2010/24,
See to that effect, judgment of
It must be noted that Council Directive 79/1071/EEC of
See also, by analogy, with respect to Directive 76/308, judgment of
The scope for the requested Member State to refuse to grant assistance to the requesting Member State is very limited. See, judgment of
Emphasis added.
The requested Member State must, in principle, seek payment of its costs in connection with a request for recovery from the debtor in question rather than from the requesting Member State. Pursuant to Article 20(1) of Directive 2010/24,
In its judgment of
See paragraph 27 of its observations.
Pantochim considers that the requested Member State acts on behalf of the requesting Member State. See page 8 of its observations. The Belgian Government states in paragraphs 18 and 21 of its observations that the claim of the requesting Member State acquires the status of a claim of the requested Member State and that the claim of the requesting Member State is fully assimilated to that of the requested Member State.
Emphasis added. See Article 13(5) of Directive 2010/24. I would note that while the Court in its judgment of
The French-language version of the third subparagraph of Article 13(1) of Directive 2010/24 refers to both
I consider that the term
Pantochim (page 10 of its observations), the Spanish Government (paragraph 31 of its observations) and the Cour d’appel de Mons (Court of Appeal, Mons) consider that
Judgment of
I would emphasise again that I consider that these terms are synonymous.
The Commission’s proposal which resulted in the adoption of Directive 2010/24 did not refer to preferences but to privileges. See recital 13 and Article 22(2) of Proposal for a Council Directive concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (COM/2009/0028 final) (
Judgment of
See by contrast Article 22(2) of the Proposal for Directive 2010/24.
In that regard, I would note that the application of Directive 2010/24 is not limited to cases whether the debtor of the requesting Member State is insolvent. The scope of Directive 2010/24 extends to all claims laid down in Article 2 thereof subject, inter alia, to a number of limits to the requested authority’s obligations laid down in Article 18 of that directive.
The third subparagraph of Article 13(1) of Directive 2010/24 also provides that 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. Thus where preferences are granted to the claims of another Member State by the requested Member State, they must be granted on an equal basis to the claims of all other Member States. Given that such preferences may operate to the disadvantage of other creditors, I consider that such preferences should be conferred by law in a transparent manner in order to put other creditors on notice thereof.
The rules on set-off under Belgian law must of course be established by the referring court.
See, to that effect, the submission of the Commission in paragraph 50 of its observations. Moreover, although not applicable
A situation which must be verified by the referring court.
The Commission considers that it is for the referring Court to assess whether the set-off mechanism in question constitutes a preference. See paragraph 47 of the Commission’s observations.
See also Article 20(1) of the Loi transposant la Directive 2010/24/UE du Conseil du
The Belgian Government also stated in paragraph 51 of its observations before the Court that the claims of a requesting Member State
The first subparagraph of Article 13(1) of Council Directive 2010/24/EU of
The term
The general power to set off reciprocal or mutual claims under national law is part of the powers and procedures available under national law for the recovery not only of the claims of the requested Member State but also for the claims of other creditors where reciprocal or mutual claims exist and falls, in principle, under the first subparagraph of Article 13(1) of Directive 2010/24.
A mechanism which merely simplifies the recovery procedure and does not grant preferential or priority rights in respect of the order or ranking of the payment of the claims of the requested Member State falls within the powers and procedures referred to in the first subparagraph of Article 13(1) of Directive 2010/24.
The third subparagraph of Article 13(1) of Directive 2010/24 does not alter the status or result in the transfer of the requesting Member State’s claim to the requested Member State. In the light of the objective of Directive 2010/24, which is to ensure, inter alia, that the requested Member State assists the requesting Member State in the recovery of the latter’s claims, the grant of preferences under the third subparagraph of Article 13(1) of Directive 2010/24 must operate for the benefit, rather than to the detriment, of the requesting Member State.