Point 14 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as allowing a commercial practice to be classified as a ‘pyramid promotional scheme’ even if there is only an indirect link between the contributions paid by new members of the scheme and the compensation paid to existing members.

Having regard to all the foregoing, the answer to the question referred is that point 14 of Annex I to Directive 2005/29 must be interpreted as allowing a commercial practice to be classified as a ‘pyramid promotional scheme’ even if there is only an indirect link between the contributions paid by new members of the scheme and the compensation paid to existing members.

he judgment of 3 April 2014, 4finance (C‑515/12, EU:C:2014:211

judgment of 3 April 2014, 4finance, C‑515/12, EU:C:2014:211, paragraph 20

Consideration of the question referred

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”)?’

By judgment of 7 October 2014, that court held that the establishment and promotion of the Lucky4All scheme did indeed constitute a misleading commercial practice. On the other hand, it found that one of the conditions identified by the Court in its judgment of 3 April 2014, 4finance (C‑515/12, EU:C:2014:211), for classifying a commercial practice as a ‘pyramid promotional scheme’ within the meaning of point 14 of Annex I to Directive 2005/29 was not satisfied. More precisely, the court took the view that it had not been shown that the funding of the compensation paid out to existing members of the Lucky4All scheme depended ‘primarily’ or ‘mostly’ on the financial contributions of new members. 12 Nationale Loterij appealed against that judgment to the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), in particular on the ground that at first instance it had been wrongly held that the Lucky4All scheme was not a prohibited pyramid promotional scheme.

Nationale Loterij is a limited company governed by public law established in Belgium, where it is responsible for organising public lotteries. By an application to the Rechtbank van koophandel te Antwerpen, afdeling Antwerpen (Commercial Court, Antwerp, Antwerp section, Belgium), it sought inter alia a declaration that the Lucky4All scheme is a prohibited pyramid promotional scheme, or at least a misleading commercial practice.

point 14 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22)

he European Commission

Calot Escobar

E. Sharpston

E. Regan

Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium)

Paul Adriaensen, Werner De Kesel, The Right Frequency VZW

Loterie Nationale — Nationale Loterij NV van publiek recht

Case C‑667/15

5 December 2016

Case C‑150/17 P

13 December 2018

Calot Escoba

N. Wahl

R. Silva de Lapuerta

European Commission

Kendrion NV

European Union

Case C‑708/18

11 December 2019

Article 6(1)(c) and Article 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national provisions which authorise the installation of a video surveillance system, such as the system at issue in the main proceedings, installed in the common parts of a residential building, for the purposes of pursuing legitimate interests of ensuring the safety and protection of individuals and property, without the consent of the data subjects, if the processing of personal data carried out by means of the video surveillance system at issue fulfils the conditions laid down in Article 7(f), which it is for the referring court to determine.

In the light of the foregoing, the answer to the questions raised is that Article 6(1)(c) and Article 7(f) of Directive 95/46, read in the light of Articles 7 and 8 of the Charter, must be interpreted as not precluding national provisions which authorise the installation of a video surveillance system, such as the system at issue in the main proceedings, installed in the common parts of a residential building, for the purposes of pursuing legitimate interests of ensuring the safety and protection of individuals and property, without the consent of the data subjects, if the processing of personal data carried out by means of the video surveillance system at issue fulfils the conditions laid down in Article 7(f), which it is for the referring court to determine.

judgment of 11 December 2014, Ryneš, C‑212/13, EU:C:2014:2428, paragraph 25

judgment of 13 May 2014, Google Spain and Google, C‑131/12, EU:C:2014:317, paragraph 71 and the case-law cited

judgment of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito, C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 40

Consideration of the questions referred

TK argued before the referring court that the video surveillance system at issue infringed EU primary and secondary law, in particular the right to respect for private life both under EU and national law. He also stated that the association of co-owners had taken on the task of data controller for personal data without having followed the registration procedure in that regard provided for by law. 19 The association of co-owners stated that the decision to install a video surveillance system had been taken in order to monitor as effectively as possible who enters and leaves the building, since the lift had been vandalised on many occasions and there had been burglaries and thefts in several apartments and the common parts. 20 The association also stated that other measures which it had taken previously, namely the installation of an intercom/magnetic card entry system, had not prevented repeat offences of the same nature being committed. 21 In addition, the association of co-owners sent TK the memorandum which it had drawn up with the company which had installed the video surveillance cameras, stating that on 21 October 2016 the system’s hard drive had been erased and disconnected, that it had been taken out of operation and that the images recorded had been deleted. 22 The association also communicated to TK another memorandum, dated 18 May 2017 from which it is apparent that the three video surveillance cameras had been uninstalled. That memorandum stated that the association of co-owners had, in the meantime, completed the procedure enabling it to be registered as data controller responsible for personal data. 23 TK stated, however, before the referring court that the three video surveillance cameras were still in place. 24 The referring court notes that Article 5 of Law No 677/2001 provides, in a general manner, that processing of personal data, such as the recording of images by means of a video surveillance system, may be carried out only if the data subject has given his or her express and unequivocal consent. Paragraph 2 of that article sets out, however, a series of exceptions to that rule, which include the exception whereby the processing of personal data is required in order to protect the data subject’s life, physical integrity or health or those of a threatened third party. Decision No 52/2012 of the ANSPDCP provides for the same type of exception. 25 The referring court makes reference, next, to Article 52(1) of the Charter enshrining the principle that there must be proportionality between the aim pursued by the interference with the rights and freedoms of citizens and the means used. 26 According to that court, the video surveillance system at issue before it does not seem to have been used in a manner or for a purpose not corresponding to the stated objective of the association of co-owners, which is that of protecting the life, physical integrity or health of the data subjects, namely the co-owners of the building in which that system was installed.

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?’

K lives in an apartment which he owns, located in the building M5A. At the request of certain co-owners of that building, the association of co-owners adopted, at a general assembly held on 7 April 2016, a decision approving the installation of video surveillance cameras in that building. 15 In implementation of that decision, three video surveillance cameras were installed in the common parts of the M5A building. The first camera was pointed towards the front of the building, whereas the second and third cameras were installed, respectively, in the ground-floor hallway and in the building’s lift. 16 TK objected to that video surveillance system being installed, on the ground that it constituted an infringement of the right to respect for private life. 17 Having found that, notwithstanding the numerous steps undertaken by him and the written acknowledgment of the association of co-owners that the video surveillance system installed was unlawful, that system continued to operate, TK brought an action before the referring court requesting that the association of co-owners be ordered to remove the three cameras and to take them out of operation definitively, failing which a penalty payment would be imposed.

Romanian Government

TK

. Calot Escoba

G. Pitruzzella

Prechal

Asociaţia de Proprietari bloc M5A-ScaraA

Czech Government

Danish Government

Tribunalul Bucureşti (Regional Court, Bucharest, Romania)

Article 6(1)(e) and Article 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), and of Articles 8 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

Legea nr. 677/2001 pentru protecția persoanelor cu privire la prelucrarea datelor cu caracter personal și libera circulație a acestor date (Law No 677/2001 on the protection of individuals with regard to the processing of personal data and on the free movement of such data) (Monitorul Oficial, Part I, No 790 of 12 December 2001),

Case C‑346/19

17 December 2020 

German Government

On 29 October 2012, Y, a company established in Austria, made an application to the Federal Central Tax Office for a refund of the VAT credit at its disposal for the period from July to September 2012, by means of the electronic portal made available to it in its Member State of establishment. 19 In the application form filled in by Y, the numbers referred to as invoice numbers consisted, for each of the goods or services in question, not of a sequential number of the invoice, but of another number, which was in reference to the invoice. 20 By a notice of 25 January 2013, the Federal Central Tax Office rejected the refund applications corresponding to the invoices mentioned in the previous paragraph. 21 On 8 February 2013, Y challenged that notice. 22 That challenge was rejected by the Federal Central Tax Office by decision of 7 January 2014. 23 In the reasoning for that rejection, the Federal Central Tax Office stated that Y had not submitted a refund application in compliance with the legal requirements within the set deadline, that is, before 30 September 2013. In that respect, the Federal Central Tax Office stated that, on three occasions and prior to the expiry of that deadline, it had informed Y that the invoice numbers referred to in its application were not compliant with the legal requirements.

Article 61(1) of the Umsatzsteuer-Durchführungsverordnung

rticles 8(2)(d) and 15 of Council Directive 2008/9/EC of 12 February 2008

European Commission

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.

Seised of the action brought against that rejection, the Finanzgericht Köln (Finance Court, Cologne, Germany), by judgment of 14 September 2016, upheld Y’s application on the grounds, first, that the indication, in the application, of the reference number appearing on the invoices, alongside their sequential number, satisfied the formal conditions required for a refund application and, secondly, that the absence of an invoice number did not invalidate an application for a refund of VAT, in so far as that application could not be considered ‘devoid of content’. 25 The Federal Central Tax Office brought proceedings before the Bundesfinanzhof (Federal Finance Court, Germany), claiming that the decision made by the Finanzgericht Köln (Finance Court, Cologne) infringed Article 8(2) of Directive 2008/9.

E. Tanchev

A. Calot Escobar

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?’

Consideration of the questions referred

M. Ilešič,

judgment of 18 November 2020, Commission v Germany (Refund of VAT – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 76

judgment of 18 November 2020, Commission v Germany (Refund of VAT – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 78 and the case-law cited

Y-GmbH,

udgment of 21 November 2018, Vădan, C‑664/16, EU:C:2018:933, paragraphs 41 and 42

Bundeszentralamt für Steuern

ee judgment of 18 November 2020, Commission v Germany (Refund of VAT – Invoices), C‑371/19, not published, EU:C:2020:936, paragraph 82 and the case-law cited

(judgment of 2 May 2019, Sea Chefs Cruise Services, C‑133/18, EU:C:2019:354, paragraph 35 and the case-law cited

Bundesfinanzhof (Federal Finance Court, Germany)

Article 8(2)(d) and Article 15(1) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State, as amended by Council Directive 2010/66/EU of 14 October 2010, must be interpreted as meaning that, where an application for a refund of value added tax does not contain a sequential number of the invoice, but does contain another number which allows that invoice, and thus the good or service in question, to be identified, the tax authority of the Member State of refund must consider that application ‘submitted’ within the meaning of Article 15(1) of Directive 2008/9, as amended by Directive 2010/66, and proceed with its assessment. In making that assessment, and save where that authority already has available to it the original invoice or a copy thereof, it may request that the applicant produce a sequential number which uniquely identifies the invoice and, if that request is not satisfied within the deadline of one month laid down in Article 20(2) of that directive, as amended by Directive 2010/66, it is entitled to reject the application for a refund.

Having regard for all the foregoing considerations, the answer to the first and second questions referred is that Article 8(2)(d) and Article 15(1) of Directive 2008/9 must be interpreted as meaning that, where an application for a refund of VAT does not contain a sequential number of the invoice, but does contain another number which allows that invoice, and thus the good or service in question, to be identified, the tax authority of the Member State of refund must consider that application ‘submitted’ within the meaning of Article 15(1) of Directive 2008/9, and proceed with its assessment. In making that assessment, and save where that authority already has available to it the original invoice or a copy thereof, it may request that the applicant produce a sequential number which uniquely identifies the invoice and, if that request is not satisfied within the deadline of one month laid down in Article 20(2) of that directive, it is entitled to reject the application for a refund.