The Danish Ministry of Taxation
Lady & Kid A/S
Direct Nyt ApS
A/S Harald Nyborg Isenkram- og Sportsforretning
A lower court´s decision to ask for a preliminary ruling cannot be tried on the merits
In 1997-1998, four companies instituted legal proceedings against the Danish Ministry of Taxation regarding the Ministry's refusal to refund labour market contribution (ambi) paid to the Danish State in 1988-1992. The District Court of Copenhagen gave judgment in favour of the Ministry of Taxation on 16 December 2002. In a concurrent judgment, the City Court rejected the companies' claim for a reference of questions to the Court of Justice of the European Communities for a preliminary ruling.
The companies appealed against this decision and applied to the High Court for a reference to the Court of Justice for a preliminary ruling. On 12 October 2009, the High Court decided to refer to the Court of Justice for a preliminary ruling four questions concerning the requirements in Community law for the national law on refund of charges collected in contravention of Community law.
With the permission of the Appeals Permission Board, the Ministry of Taxation appealed the High Court's decision to the Supreme Court and claimed that the appeal be given a stay of execution.
The Supreme Court noted that it follows from Case C-210/06 (Cartesio) before the Court of Justice that Article 267(2) of the Treaty on the Functioning of the European Union (TFEU) (previously Article 234(2) of the EC Treaty) does not preclude decisions to refer questions to the Court of Justice made by a court against whose decisions there is a judicial remedy under national law from remaining subject to the remedies normally available under national law. However, the appellate court cannot set aside the decision to make a reference for a preliminary ruling with the effect that the lower court is obliged to amend, omit or revoke the decision.
The Supreme Court assumed that these principles also apply to cases where the decision to make a reference is made by a national court against whose decisions there is not a judicial remedy under national law, cf. Article 267(3) TFEU.
The majority found that it would not be compatible with the Danish system of means of redress or court hierarchy to have a scheme according to which appeal of a decision to refer a question to the Court of Justice cannot lead to the appellate court setting aside the decision with binding effect for the lower court. Also, the majority did not find that there was any need for such a special scheme.