In those circumstances, the Hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does the application of point 14 of Annex I to Directive 2005/29 … require that a prohibited pyramid promotional scheme exists only if the realisation of the financial promise to existing members: depends primarily or mostly on the direct transfer of the contributions of the new members (“direct link”), or does it suffice that the realisation of the financial promise to existing members depends primarily or mostly on an indirect payment through the contributions of existing members, i.e. existing members do not obtain their compensation primarily or mostly from their own sale or their own consumption of goods or services, but depend for the realisation of the financial promise primarily or mostly on the introduction and contributions of new members (“indirect link”)?’

In those circumstances Tribunalul Bucureşti (Regional Court, Bucharest, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are Articles 8 and 52 of the Charter and Article 7(f) of Directive 95/46 to be interpreted as precluding provisions of national law such as those at issue in the main proceedings, namely Article 5(2) of [Law No 677/2001], and Article 6 of [Decision No 52/2012 of the ANSPDCP], in accordance with which video surveillance may be used to ensure the safety and protection of individuals, property and valuables and for the pursuit of legitimate interests, without the data subject’s consent? (2) Are Articles 8 and 52 of the Charter to be interpreted as meaning that the limitation of rights and freedoms which results from video surveillance is in accordance with the principle of proportionality, satisfies the requirement of being ‘necessary’ and ‘meets objectives of general interest or the need to protect the rights and freedoms of others’, where the controller is able to take other measures to protect the legitimate interest in question? (3) Is Article 7(f) of Directive 95/46 to be interpreted as meaning that the ‘legitimate interests’ of the controller must be proven, present and effective at the time of the data processing? (4) Is Article 6(1)(e) of Directive 95/46 to be interpreted as meaning that data processing (video surveillance) is excessive or inappropriate where the controller is able to take other measures to protect the legitimate interest in question?’

The Bundesfinanzhof (Federal Finance Court) asks, first of all, whether the term ‘number of the invoice’ in Article 8(2)(d) of Directive 2008/9 may be interpreted as meaning that it covers the reference number of an invoice which is indicated as an additional classification criterion, alongside the number of the invoice.

In that regard, the referring court mentions that the principle of neutrality of VAT requires the term ‘number of the invoice’ in Article 8(2)(d) of Directive 2008/9 to be interpreted as meaning that, in the context of a refund application, the reference to another clear and broader classification criterion indicated in that application is sufficient. 28 The same applies to the principle of proportionality. According to the referring court, ‘Article 8(2)(d) of Directive 2008/9 … is also respected, as in the present case, where the reference number is indicated in the application, since that would allow the [Federal Central Tax Office] to make a clear classification of the invoice in question in the context of its assessment of the application for a refund of VAT’. 29 However, the referring court points out that, as the Court has previously ruled, the right to deduct VAT is subject to compliance with both substantive and formal requirements, which implies that, in order to obtain a refund, only the presence of a sequential number, within the meaning of Article 226(2) of Directive 2006/112, should be significant. That court adds that, nevertheless, the indication of such a number, while appropriate in order to attain the objective of a clear classification of the invoice, is not necessary. 30 In the event that its first question were to be answered in the negative, the Bundesfinanzhof (Federal Finance Court) asks whether a refund application is considered formally complete and submitted within the deadline where that application refers to invoice numbers used by the applicant for a refund, and not to sequential numbers. 31 In that regard, the referring court considers that the validity of an application for a refund of input VAT does not presuppose the accuracy of its contents, but its formal completeness. That would suggest that a refund application which refers to an invoice number used by the applicant would indeed be inaccurate, but not incomplete. 32 Lastly, the Bundesfinanzhof (Federal Finance Court) asks whether consideration should be given to the fact that the mistake made was partly due to the Federal Central Tax Office, whose VAT refund application forms refer to the general heading ‘supporting document number’ and not to ‘number of the invoice’. 33 In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 8(2)(d) of … Directive 2008/9 …, according to which the refund application is to set out, for each Member State of refund and for each invoice, inter alia, the number of the invoice, to be interpreted as meaning that it is also sufficient to state the reference number of an invoice, which is shown on an invoice document as an additional classification criterion alongside the invoice number? (2) If the above question is to be answered in the negative: Is a refund application in which the reference number of an invoice has been indicated instead of the invoice number to be considered formally complete and submitted within the deadline for the purpose of the second sentence of Article 15(1) of Directive 2008/9? (3) Should consideration be given, when answering Question 2, to the fact that the taxable person not established in the Member State of refund was, from the point of view of a reasonable applicant, and given the design of the electronic portal in the State of establishment and the form provided by the Member State of refund, entitled to assume that, for the application to have been properly made, or in any event to be formally complete, and timely, entering an indicator other than the invoice number is sufficient for the purpose of identifying the invoice to which the refund application relates?’