96
Bruno De Witte
Deuxième séance de travail — Les retombées
2.
The Citizens’ Infringement Procedure
One straightforward example of this kind of preliminary question is the
recent
Petersen
judgment of 28 February (
7
). This was a case about income
tax and free movement, in which the referring German court asked just one
simple question: ‘Is a legal provision compatible with Article 49 EC … if it
makes a tax exemption for income of an employee who is taxable in Germany
dependent on the employer being established in Germany, but does not pro-
vide for such exemption if the employer is established in another … Member
State?’. Thus, the national court clearly launched a ‘citizens’ infringement pro-
cedure’. The Court of Justice, of course, never answers such questions in the
same straightforward way. It does not use ‘compatibility’ language (which it
reserves for the
real
infringement cases) but rather holds – as it did in the op-
erational part of the
Petersen
judgment – that ‘Article 45 TFEU must be inter-
preted as precluding national legislation of a Member State pursuant to which
…’. Thus, the bluntness of the ruling is reduced (a little bit!) by affirming that
the Court remains in its ‘interpretive’ role (rather than the declaratory role
it plays in ‘real’ infringement cases) and also by not referring directly to the
German legislation at stake in the domestic court case but more abstractly and
vaguely to ‘national legislation of a Member state pursuant to which…’.
Sometimes, the Court makes more of an effort to remind the nation-
al court that it is interpreting EU law rather than judging on the compat-
ibility of national law. It does so by using a particular, circumlocutory and
slightly hypocritical, formula when starting its judgment. For example, in the
Vandoorne
case decided in 2011 (
8
), the referring Belgian court had squarely
asked whether a given Belgian law was ‘compatible or incompatible’ with an
EU directive. The CJEU started its reply by the following sentence: ‘At the
outset, it is necessary to point out that it is not for the Court, in the context
of the procedure provided for in Article 267 TFEU, to determine whether na-
tional provisions are compatible with European Union law. The Court does,
however, have jurisdiction to provide the national court with all the criteria
for the interpretation of European Union law which may enable it to assess
whether those provisions are so compatible in order to give judgment in the
proceedings before it.’ And yet, the actual answer given in the operational part
of the judgment is much more straightforward; there, the Court states that
the EU directive ‘must be interpreted as not precluding national legislation,
(
7
) Case C-544/11,
Petersen
, judgment of 28 February 2013.
(
8
) Case C-489/09,
Vandoorne
, judgment of 27 January 2011.
