Request for a reference for a preliminary ruling regarding obligation ...

Case no. 18/2022
Order made on 2 June 2023

Lady & Kid A/S,
Direct Nyt ApS,
Harald Nyborg A/S
and
Kid Holding A/S
vs.
The Danish Ministry of Taxation

The case was connected to a case brought by Lady & Kid A/S, Direct Nyt ApS, Harald Nyborg A/S and Kid Holding A/S against the Danish Ministry of Taxation concerning whether the Ministry of Taxation had incurred liability by having introduced and levied a tax contrary to EU law and subsequently having handled the reimbursement of the tax in a manner that was contrary to EU law.

During the pre-trial stage, the Supreme Court had refused, on a preliminary basis, a request for a reference for a preliminary ruling of a number of questions to the EU Court of Justice, as the Supreme Court’s preliminary assessment was that the interpretation of the EU law relevant to the case did not give rise to doubt that would justify such a reference. The Supreme Court subsequently refused to further justify its refusal. Against that background, the companies requested that the Supreme Court refer a number of new questions to the EU Court of Justice regarding the Supreme Court’s obligation to state reasons when refusing requests for a reference for a preliminary ruling.

The Supreme Court stated that, according to the case-law of the EU Court of Justice, if a national court takes the view that it is relieved of its obligation to make a reference to the Court, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court of last instance as to leave no scope for any reasonable doubt. The Supreme Court also stated that, according to the Supreme Court’s preliminary decision, this issue would be reconsidered at the hearing, and in order not to prejudge this assessment, the preliminary decision only contained a brief statement of reasons.

On that basis, the Supreme Court held that the issue of whether the statement of reasons was in accordance with the system of references for a preliminary ruling did not give rise to such doubt that it justified referring the requested questions to the EU Court of Justice.

Accordingly, the Supreme Court did not grant the request.