SOURCE: Court of Justice of the European Union, Annual report 2020
The judgment in J & S Service delivered on 10 December 2020, concerned a case in which D.-H. T., as insolvency administrator of J & S Service, a company governed by German law, had requested that company’s tax data from the tax office so that it could examine whether it would be appropriate to bring insolvency-avoidance claims in the context of insolvency proceedings. The tax office refused that request and D.-H. T. brought an action before the Verwaltungsgericht (Administrative Court, Germany) having jurisdiction, which essentially upheld the action. The Oberverwaltungsgericht (Higher Administrative Court, Germany) having jurisdiction dismissed the appeal brought by the Land Nordrhein-Westfalen (Land of North Rhine-Westphalia, Germany) against the judgment at first instance, taking the view, inter alia, that the right of access to information, exercised on the basis of the Law on freedom of information of the Land of North Rhine-Westphalia, was not excluded by specific rules in the field of taxation. Therefore, although the information requested was covered by tax secrecy, D.-H. T. was entitled, as insolvency administrator, to request from J & S Service all information linked to the insolvency proceedings.
Hearing an appeal on a point of law (Revision) against the decision of the Oberverwaltungsgericht (Higher Administrative Court) having jurisdiction, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) observed that the GDPR was not directly applicable to the case at hand because the main proceedings did not concern personal data relating to a natural person or the data subject’s right of access. According to the referring court, that right of access was a right attached to the data subject by virtue of the processing of personal data; it did not form part of the insolvency estate and thus was not covered by the transfer of powers of management and disposal to the insolvency administrator. Nevertheless, in order to ensure the uniform interpretation of EU law, the referring court recalled that the Court of Justice had already held that it had jurisdiction to rule on requests for a preliminary ruling concerning provisions of EU law in purely internal situations, in which those provisions had been made directly and unconditionally applicable by national law. It took the view that that condition was satisfied in the case at hand since the German Tax Code refers, as regards the processing of the personal data of legal persons, to the provisions of the GDPR.
It was against that background that the Bundesverwaltungsgericht (Federal Administrative Court) asked the Court of Justice to clarify whether it was open to the tax office to limit access to the tax data of a tax debtor on the basis of a provision of the GDPR, to which the Tax Code expressly refers. If the view were taken that the tax office could rely on that provision of the GDPR, the referring court asked the Court of Justice to clarify whether the concept of ‘enforcement of civil law claims’ appearing in that provision of the GDPR also covered the defence against civil-law claims. Lastly, the referring court asked the Court of Justice to clarify whether a national provision imposing a limitation on the right of access conferred by the GDPR in relation to the defence of insolvency avoidance claims which may be brought in insolvency proceedings against the tax office had its basis in that regulation.
After examining the circumstances in which the case had been referred to it by the national court, the Court of Justice held that it did not have jurisdiction to answer the questions submitted by the Bundesverwaltungsgericht (Federal Administrative Court).
As a preliminary point, concerning the cooperation between the Court of Justice and the national courts provided for by Article 267 TFEU, the Court pointed out that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling. However, the Court must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction.
As regards the assessment of its jurisdiction in preliminary-ruling proceedings, the Court made clear that it has repeatedly considered itself to have jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts at issue in the main proceedings were outside the scope of EU law and therefore fell within the competence of the Member States alone, but where those provisions of EU law had been rendered applicable by domestic law due to a reference made by that law to the content of those provisions. The Court stated that such jurisdiction is justified by the fact that it is clearly in the interest of the EU legal order that, in order to forestall future differences of interpretation, the provisions taken from EU law should be interpreted uniformly.
Noting that its jurisdiction is confined to considering provisions of EU law alone, the Court observed that it cannot, when replying to the national court, take account of the general scheme of the provisions of domestic law which, while referring to EU law, define the extent of that reference. Consideration of the limits which the national legislature may have placed on the application of EU law to purely internal situations, to which that law is applicable only through the operation of national legislation, is a matter for domestic law and hence falls within the exclusive jurisdiction of the courts of the Member State concerned.
In the case at hand, the Court pointed out that the questions referred for a preliminary ruling concerned the interpretation of the GDPR, the provisions of which relating to the processing of personal data of natural persons were made applicable, pursuant to a reference in the Tax Code, mutatis mutandis to legal persons, in order to delimit the obligation of the tax office to provide information and the data subject’s right of access vis-à-vis that authority. It noted, however, that the GDPR lays down rules on the protection of personal data of natural persons and does not cover data relating to legal persons.
Therefore, the provisions of the GDPR cannot be interpreted in the same way as regards both natural persons and legal persons, since the latter’s right to protection of their data is not set out in the GDPR.
Since the provisions of the Tax Code at issue in the main proceedings did not simply make the provisions of the GDPR applicable beyond the scope of that regulation, but altered their purpose and extent, the Court took the view that it was not possible to consider that those provisions had been made applicable in themselves beyond the GDPR’s scope by the domestic law concerned. Therefore, the Court held that, in the case at hand, there was no clear interest in interpreting the provisions of the GDPR in order to ensure their uniform interpretation.
Consequently, the Court found that it did not have jurisdiction to answer the questions raised by the national court.
*The judgment is available on this portal only in French