ORDER OF THE COURT (Ninth Chamber)
20 October 2022 (*)
(Reference for a preliminary ruling – Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice – Regulation (EC, Euratom) No 2988/95 – Own resources of the European Union – Protection of the European Union’s financial interests – Proceedings relating to irregularities – Article 4 – Adoption of administrative measures – Article 3(1) – Limitation period for proceedings – Expiry – Whether it may be relied on in the context of the enforced recovery procedure – Article 3(2) – Period for implementation – Applicability – Starting point of the limitation period – Interruption and suspension)
In Case C‑374/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 12 May 2021, received at the Court on 18 June 2021, in the proceedings
Instituto de Financiamento da Agricultura e Pescas IP (IFAP)
v
AB,
CD,
EF,
with the participation of:
Biocentro – Produção de Energia Lda,
THE COURT (Ninth Chamber),
composed of J.‑C. Bonichot (Rapporteur), acting as President of the Chamber, S. Rodin, and O. Spineanu-Matei, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of Article 3(1) and (2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).
2 The request has been made in proceedings between the Instituto de Financiamento da Agricultura e Pescas IP (Agriculture and Fisheries Financing Institute IP, Portugal) (IFAP), on the one hand, and AB, CD and EF, directors of the company Biocentro – Produção de Energia Lda (‘Biocentro’), on the other, concerning the enforced recovery, by way of tax enforcement proceedings, of aid granted to that company in the context of a project to support forestry.
Legal context
The Rules of Procedure of the Court of Justice
3 Article 94 of the Rules of Procedure of the Court of Justice provides:
‘In addition to the text of the questions referred to the Court for a preliminary ruling, the request for a preliminary ruling shall contain:
(a) a summary of the subject-matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based;
(b) the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law;
(c) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.’
Regulation No 2988/95
4 The third and fourth recitals of Regulation No 2988/95 state:
‘…acts detrimental to the Communities’ financial interests must … be countered in all areas;
… the effectiveness of the combating of fraud against the Communities’ financial interests calls for a common set of legal rules to be enacted for all areas covered by Community policies’.
5 Under Article 1 of that regulation:
‘1. For the purposes of protecting the European Communities’ financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law.
2. “Irregularity” shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure.’
6 Article 3 of that regulation, set out under Title I thereof, relating to ‘general principles’, is worded as follows:
‘1. The limitation period for proceedings shall be four years as from the time when the irregularity referred to in Article 1(1) was committed. However, the sectoral rules may make provision for a shorter period which may not be less than three years.
In the case of continuous or repeated irregularities, the limitation period shall run from the day on which the irregularity ceases. In the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated.
The limitation period shall be interrupted by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity. The limitation period shall start again following each interrupting act.
However, limitation shall become effective at the latest on the day on which a period equal to twice the limitation period expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6(1).
2. The period for implementing the decision establishing the administrative penalty shall be three years. That period shall run from the day on which the decision becomes final.
Instances of interruption and suspension shall be governed by the relevant provisions of national law.
3. Member States shall retain the possibility of applying a period which is longer than that provided for in paragraphs 1 and 2 respectively.’
7 Title II of that regulation contains rules on ‘administrative measures and penalties’, in particular in Article 4 thereof, which provides:
‘1. As a general rule, any irregularity shall involve withdrawal of the wrongly obtained advantage:
…
2. Application of the measures referred to in paragraph 1 shall be limited to the withdrawal of the advantage obtained plus, where so provided for, interest which may be determined on a flat-rate basis.
…
4. The measures provided for in this Article shall not be regarded as penalties.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
8 On 11 February 2005 and 4 March 2005, IFAP paid to Biocentro, in accordance with a contract for the grant of aid, concluded on 3 November 2004, the amounts of EUR 31 930.78 and EUR 21 537.95 respectively. According to the referring court, that aid forms part of a common agricultural policy measure and is subject to Regulation No 2988/95.
9 On 13 January 2010, IFAP asked Biocentro to comment on the termination of that contract.
10 On 1 July 2010, IFAP delivered to that company the final decision unilaterally to terminate that contract. Since that decision was not challenged by legal action within the prescribed period, IFAP brought the administrative procedure to an end in accordance with the Código de Procedimento Administrativo (Code of Administrative Procedure) and became a creditor of Biocentro.
11 On 3 September 2012, IFAP issued a ‘debt certificate’ to that company and, on 27 September 2012, tax enforcement proceedings with a view to the collection of debts were initiated by the tax authorities against that company.
12 Biocentro was notified of the initiation of the tax enforcement proceedings on 9 October 2012.
13 A draft decision extending liability for debts concerning the respondents in the main proceedings, namely AB, CD and EF, who are directors of Biocentro, was notified to the respondents in the main proceedings on 20 September 2016. That draft decision was approved by the tax authorities by a number of decisions which were notified to the respondents in the main proceedings on 12 December 2016.
14 The respondents in the main proceedings raised an objection in respect of the tax enforcement proceedings, which was upheld by a judgment of 31 March 2020 of the Tribunal Administrativo e Fiscal de Leiria (Administrative and Tax Court, Leiria, Portugal).
15 That court held that the debt forming the subject matter of the tax enforcement proceedings was extinguished and that, consequently, those proceedings had to be closed. It is apparent from the ruling given by that court that the limitation period for proceedings, which is four years, in accordance with Article 3(1) of Regulation No 2988/95, had started to run from the date of the last payment of the agricultural aid, namely 4 March 2005, and that, consequently, that period had already expired in 2010.
16 Before the referring court, IFAP submits, inter alia, that, at the time of the implementation of the tax enforcement proceedings, the administrative procedure which led to the termination of the contract referred to in paragraph 8 of the present order had already been closed and that, therefore, it was no longer possible to call into question the legality of that decision.
17 The referring court confirms that, according to its settled case-law, when an objection is raised in respect of tax enforcement proceedings, the legality of the debt can no longer be examined. It questions, however, whether that approach is consistent with EU law.
18 If the answer is in the affirmative, the referring court seeks to ascertain whether it is consistent with EU law, first, for the limitation period for a debt to be interrupted by the notification to secondarily liable parties of the extension of tax enforcement proceedings and, second, whether that period may be suspended until such time as a final or unappealable decision is adopted on the objection raised by those secondarily liable parties.
19 In those circumstances the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does Article 3(1) of Regulation [No 2988/95] preclude national legislation under which a limitation period of four or eight years may not be applied in judicial enforcement proceedings which have been commenced, since that issue may be assessed only in the context of an administrative-law action brought against the measure ordering the repayment of amounts wrongly received on the ground that an irregularity has been established?
(2) If [the first question] is answered in the negative, … must the three-year period laid down in Article 3(2) of Regulation No 2988/95 be regarded as being a limitation period applicable to the debt that is generated by the adoption of a measure requiring the repayment of amounts wrongly received on account of the presence of irregularities in the financing? Does that period start to run from the date on which that measure is adopted?
(3) If [the second question] is answered in the negative, … does Article 3 of Regulation No 2988/95 preclude national legislation under which the [limitation] period applicable to the debt is interrupted in the case where, in the context of enforced recovery pursued against secondarily liable parties from the beneficiary company, those parties receive due notice, and remains suspended until such time as a final or unappealable decision is adopted on the objection raised by such secondarily liable parties?’
Consideration of the questions referred
20 Under Article 99 of its Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where, in particular, the reply to such a question may be clearly deduced from existing case-law. Furthermore, under Article 53(2) of those rules, where a request for a preliminary ruling is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
21 It is appropriate to apply those provisions in the present case.
The first question
22 By its first question, the referring court seeks, in essence, to ascertain whether Article 3(1) of Regulation No 2988/95 is to be interpreted as precluding national legislation under which, for the purpose of challenging a decision to recover amounts wrongly paid, adopted after the expiry of the limitation period for proceedings referred to in that provision, the addressee of that decision is required to plead the irregularity thereof within a certain period before the competent administrative court, failing which the challenge will be time-barred, and the addressee is no longer able to object to the enforcement of that decision by relying on that irregularity in the context of the judicial proceedings for enforced recovery brought against that addressee.
23 It should be noted at the outset that the Court has already answered that question in the judgment of 7 April 2022, IFAP (C‑447/20 and C‑448/20, EU:C:2022:265).
24 It is clear from paragraph 52 of that judgment that Regulation No 2988/95 determines neither the remedies available for contesting decisions imposing administrative measures and penalties nor the courts which have jurisdiction to hear and determine them; nor does it lay down any time limit or limitation period on expiry of which those decisions become final since they have not been challenged before the court having jurisdiction.
25 In the absence of EU rules in the field, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 53).
26 As regards the principle of equivalence, it is apparent from the judgment of 7 April 2022, IFAP (C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 54), that, subject to the checks to be carried out by the court which made a reference to the Court of Justice for a preliminary ruling in the cases which gave rise to that judgment, a provision of national law, such as Article 58(1) of the Código de Processo nos Tribunais Administrativos (Code of Procedure before the Administrative Courts), which lays down a three-month time limit for challenging an administrative decision (such as the recovery decision called into question, indirectly, in the case in the main proceedings), is not contrary to that principle.
27 As regards the principle of effectiveness, the Court has repeatedly held that the laying down of reasonable limitation periods satisfies, in principle, the requirement for effectiveness, inasmuch as it constitutes an application of the fundamental principle of legal certainty. Such periods are not by their nature liable to make it practically impossible or excessively difficult to exercise the rights conferred by EU law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 55).
28 In respect of national legislation which comes within the scope of EU law, it is for the Member States, however, to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration. Subject to that reservation, the Member States are free to provide for longer or shorter time limits (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 56).
29 In that regard, the Court has held that national provisions, such as Article 58(1) and Article 59(2) of the Code of Procedure before the Administrative Courts, which provide that the addressee of an administrative decision (such as the recovery decision called into question, indirectly, in the case in the main proceedings) has three months from notification of that decision in order to challenge it, failing which it will be time-barred, do not appear to be contrary to the principle of effectiveness (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 57).
30 Such a period is reasonable in that it enables the person concerned to assess whether there are grounds for challenging the decision concerning him or her and, if necessary, to prepare the action against that decision. Furthermore, the time limit which starts to run from notification of the measure guarantees that the person concerned does not find him or herself in a situation in which that time limit has expired without him or her being aware of the adoption of that measure (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 58).
31 Furthermore, in so far as concerns the remedies available for challenging administrative decisions (such as the recovery decision called into question, indirectly, in the case in the main proceedings), the Court has held that, in principle, an obligation to apply to the administrative court having jurisdiction, such as that laid down in Article 163(3) of the Code of Administrative Procedure, is not contrary to the principles of equivalence and effectiveness, but constitutes the legitimate exercise of the procedural autonomy of the Member States. In particular, such an obligation cannot, in itself, render the exercise of rights conferred by EU law practically impossible or excessively difficult (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 59).
32 The fact remains that the principle of legal certainty, the corollary of which is the principle of protection of legitimate expectations, requires, first, that rules of law must be clear and precise and, second, that their application must be foreseeable by those subject to them (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 60).
33 In that regard, it is apparent from the judgment of 7 April 2022, IFAP (C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 61), that, subject to the checks to be carried out by the court which made a reference to the Court of Justice for a preliminary ruling in the cases which gave rise to that judgment, it does not appear, in particular, that the provisions of Portuguese law referred to in paragraphs 26, 29 and 31 of the present order do not allow individuals who are the addressees of an administrative decision to determine precisely which court has jurisdiction to hear actions against such a decision.
34 In the light of all the foregoing considerations, the answer to the first question is that Article 3(1) of Regulation No 2988/95 must be interpreted as not precluding, subject to the principles of equivalence and effectiveness, national legislation under which, for the purpose of challenging a decision to recover amounts wrongly paid, adopted after the expiry of the limitation period for proceedings referred to in that provision, the addressee of that decision is required to plead the irregularity thereof within a certain period before the competent administrative court, failing which the challenge will be time-barred, and the addressee is no longer able to object to the enforcement of that decision by relying on that irregularity in the context of the judicial proceedings for enforced recovery brought against that addressee.
The first part of the second question
35 By the first part of its second question, the referring court seeks to ascertain, in essence, whether the first subparagraph of Article 3(2) of Regulation No 2988/95 is to be interpreted as meaning that the expiry of the period laid down therein results in the extinction of the debt which is the subject of a recovery decision.
36 As a preliminary point, it should be borne in mind that, according to the wording of the first subparagraph of Article 3(2) of Regulation No 2988/95, the period for implementing a decision establishing an ‘administrative penalty’ is three years.
37 However, as the Court has held, Article 3(2) of Regulation No 2988/95 refers both to administrative penalties within the meaning of Article 5(1) of that regulation, and to administrative measures within the meaning of Article 4(1) of that regulation, which may be imposed in order to protect the European Union’s financial interests (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 83).
38 Therefore, the first subparagraph of Article 3(2) of Regulation No 2988/95 applies to the enforcement of a national decision, such as that called into question, indirectly, in the case in the main proceedings, which does not establish a penalty, but imposes an administrative measure, namely the recovery of aid wrongly received.
39 As regards the first part of the second question, it should be noted that the referring court is questioning the Court of Justice as to the nature of the period laid down in Article 3(2) of Regulation No 2988/95. It thus seeks to determine whether the respondents in the main proceedings, in their capacity as secondarily liable parties from the debtor company, namely Biocentro, may oppose the enforcement of the recovery decision addressed to that company.
40 That said, it should be recalled, as is apparent from the examination of the scope of the first subparagraph of Article 3(2) of Regulation No 2988/95, that this provides that the period for implementing decisions establishing an administrative measure or penalty is three years. It follows that, without prejudice to the option retained by Member States under Article 3(3) of that regulation, after the expiry of the period laid down in the first subparagraph of Article 3(2) thereof, such decisions can no longer be enforced (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 85).
41 In so far as specifically concerns a decision entailing an administrative measure requiring its addressee to repay an amount wrongly received, the consequence of the expiry of that period is that the amount concerned can no longer be recovered by means of enforced recovery. Where appropriate, the addressee of that decision may therefore object to the enforcement proceedings (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 86).
42 In that connection, the Court has held that the possible absence of grounds for opposition laid down by the law of a Member State in such a situation cannot prevent the addressee of a decision to recover amounts wrongly received from relying on the expiry of the period for implementation laid down in the first subparagraph of Article 3(2) of Regulation No 2988/95 or, as the case may be, of an extended period for implementation pursuant to Article 3(3) of that regulation, in order to oppose the enforced recovery of those amounts (see, to that effect, judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraphs 87 and 91).
43 The same considerations also apply to the secondarily liable parties from the debtor entity to whom tax enforcement proceedings initiated against that debtor entity have been extended.
44 In those circumstances, in order to provide a useful answer to the referring court as to whether, after the expiry of the period laid down in the first subparagraph of Article 3(2) of Regulation No 2988/95, such secondarily liable parties may oppose the enforcement of a decision to recover amounts wrongly received addressed to the debtor entity, it is not necessary to determine whether the expiry of that period also results in the extinction of the debt which is the subject of that decision (see, to that effect, judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 92).
45 In the light of all of the foregoing, the answer to the first part of the second question is that the first subparagraph of Article 3(2) of Regulation No 2988/95 must be interpreted as meaning that the secondarily liable parties from the debtor entity which is the addressee of a decision to recover amounts wrongly received, to whom tax enforcement proceedings have been extended, must be able to rely on the expiry of the period for implementation laid down in the first subparagraph of Article 3(2) of that regulation or, as the case may be, of an extended period for implementation pursuant to Article 3(3) of that regulation, in order to oppose the enforced recovery of those amounts.
The second part of the second question
46 By the second part of its second question, the referring court seeks to ascertain, in essence, whether the first subparagraph of Article 3(2) of Regulation No 2988/95 is to be interpreted as meaning that, with regard to the enforcement of a decision requiring the repayment of amounts wrongly received, the period for implementation established by that provision starts to run from the adoption of that decision.
47 In so far as concerns the starting point of the period laid down in Article 3(2) of Regulation No 2988/95, it is clear from an examination of the scope of the first subparagraph of that provision together with the wording thereof that that period begins to run from the day on which the decision establishing an administrative measure or penalty becomes final (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 95).
48 That provision leaves no discretion to the Member States and, therefore, precludes national legislation which provides that the period for implementation starts to run from the actual adoption of a decision requiring the repayment of amounts wrongly received before it has become final (see, to that effect, judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 98).
49 Moreover, the first subparagraph of Article 3(2) of Regulation No 2988/95 makes no reference to the law of the Member States. Therefore, in the light of the need for a uniform application of EU law and the principle of equality, that provision must be subject to independent and uniform interpretation throughout the European Union (see, to that effect, judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraphs 101 and 102).
50 In that connection, the Court has held that, although the terms of the first subparagraph of Article 3(2) of Regulation No 2988/95 are ambiguous, the reference in that provision to a decision which becomes final militates in favour of an interpretation according to which that provision refers to the final decision taken in the course of an administrative procedure and thus rendering the obligation to repay amounts wrongly received unchallengeable or an order imposing an administrative penalty unchallengeable (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 103).
51 It must therefore be held that the first subparagraph of Article 3(2) of Regulation No 2988/95 refers to a decision which acquires a definitive character either upon expiry of reasonable periods for bringing proceedings laid down by national law or after all rights of appeal have been exhausted (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 104).
52 In the light of all the foregoing considerations, the answer to the second part of the second question is that the first subparagraph of Article 3(2) of Regulation No 2988/95 must be interpreted as meaning that, as regards the implementation of a decision requiring the repayment of amounts wrongly received, the period for implementation established by that provision starts to run from the day on which that decision becomes final, that is to say, from the day on which the periods for bringing proceedings have expired or all rights of appeal have been exhausted.
The third question
53 By its third question, the referring court seeks to ascertain, in essence, whether the second subparagraph of Article 3(2) of Regulation No 2988/95 is to be interpreted as precluding national legislation under which, first, the limitation period for a debt is interrupted when the extension of tax enforcement proceedings is notified to secondarily liable parties from the debtor company and, second, that period is suspended until such time as a final or unappealable decision is adopted regarding the objection raised by those secondarily liable parties.
54 It should be borne in mind that the second subparagraph of Article 3(2) of Regulation No 2988/95 provides that it is for the Member States to determine, by their national law, instances of interruption and suspension of the period for implementation laid down in the first subparagraph of Article 3(2) of that regulation.
55 However, the order for reference does not set out the provisions of national law governing instances of interruption and suspension of enforcement proceedings, such as those initiated in the main proceedings.
56 In that regard, it should be recalled that the Court cannot give a preliminary ruling where it does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (order of 1 October 2020, Inter Consulting, C‑89/20, EU:C:2020:771, paragraph 23 and the case-law cited).
57 Furthermore, according to settled case-law, in the context of cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure (judgment of 11 November 2021, Dublin City Council, C‑214/20, EU:C:2021:909, paragraph 28).
58 In particular, under Article 94(b) of those rules, the request for a preliminary ruling must contain the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law.
59 It is true that the Court has already ruled on the question whether the second subparagraph of Article 3(2) of Regulation No 2988/95 is to be interpreted as precluding a provision of Portuguese law under which the period for implementation laid down in the first subparagraph thereof is interrupted by the summons for enforced recovery of the debt which is the subject of a recovery decision (see, to that effect, judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 110).
60 It has held in that regard that, although the Member States retain a broad discretion in determining instances of interruption and suspension of the period for implementation referred to in Article 3(2) of Regulation No 2988/95, they must nevertheless observe the principles of effectiveness and equivalence, as well as the principles of proportionality and legal certainty (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraphs 113 to 115).
61 It is in the light of those principles that the Court found, subject to the verifications that were to be carried out by the referring court in the cases which gave rise to the judgment of 7 April 2022, IFAP (C‑447/20 and C‑448/20, EU:C:2022:265), that the second subparagraph of Article 3(2) of Regulation No 2988/95 had to be interpreted as not precluding national legislation under which the period for implementation laid down in the first subparagraph thereof is interrupted by the summons for enforced recovery of the debt which is the subject of a recovery decision (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraphs 117 to 120).
62 However, in this instance, the question submitted does not concern the interruption of the period for implementation in respect of the entity to which a recovery decision has been addressed, but relates to a different situation, namely the interruption of that period in respect of the secondarily liable parties from the debtor entity to whom tax enforcement proceedings have been extended.
63 In the absence of any information regarding the applicable provisions of national law and, in particular, regarding the detailed rules governing the extension of enforcement proceedings and the interruption of periods in that situation, the Court of Justice cannot provide the referring court with a useful answer.
64 The same holds true as regards the referring court’s questions concerning the suspension of the period for implementation.
65 First, the referring court has not provided any information regarding the applicable national legislation, so that the Court of Justice cannot answer the question of whether EU law is to be interpreted as precluding that legislation.
66 Moreover, it is apparent from the judgment of 7 April 2022, IFAP (C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 108), that, when asked about the detailed rules governing the suspension of the period for implementation laid down by Portuguese law pursuant to the second subparagraph of Article 3(2) of Regulation No 2988/95, the national court which had made references to the Court of Justice for a preliminary ruling in the cases which gave rise to that judgment stated that ‘it is … apparent from the civil law applicable in the present case that there are no grounds for suspending that period’.
67 Second, the request for a preliminary ruling does not make it possible to determine whether, in this instance, the period for implementation provided for by national law has in fact been suspended. Accordingly, the Court is not in a position to check whether that aspect of the question submitted relates to the actual facts of the main action or its purpose or whether it is purely hypothetical.
68 It must be borne in mind that, according to the settled case-law of the Court, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law (judgment of 7 April 2022, Autonome Provinz Bozen, C‑102/21 and C‑103/21, EU:C:2022:272, paragraph 57).
69 Consequently, pursuant to Article 53(2) of the Rules of Procedure, the third question must be regarded as manifestly inadmissible.
70 However, it should be borne in mind that the referring court retains the right to submit a new request for a preliminary ruling, providing the Court of Justice with all the information enabling it to give a ruling (see, to that effect, judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 41 and the case-law cited).
Costs
71 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
1. Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests
must be interpreted as not precluding, subject to the principles of equivalence and effectiveness, national legislation under which, for the purpose of challenging a decision to recover amounts wrongly paid, adopted after the expiry of the limitation period for proceedings referred to in that provision, the addressee of that decision is required to plead the irregularity thereof within a certain period before the competent administrative court, failing which the challenge will be time-barred, and the addressee is no longer able to object to the enforcement of that decision by relying on that irregularity in the context of the judicial proceedings for enforced recovery brought against that addressee.
2. The first subparagraph of Article 3(2) of Regulation No 2988/95
must be interpreted as meaning that the secondarily liable parties from the debtor entity which is the addressee of a decision to recover amounts wrongly received, to whom tax enforcement proceedings have been extended, must be able to rely on the expiry of the period for implementation laid down in the first subparagraph of Article 3(2) of that regulation or, as the case may be, of an extended period for implementation pursuant to Article 3(3) of that regulation, in order to oppose the enforced recovery of those amounts.
3. The first subparagraph of Article 3(2) of Regulation No 2988/95
must be interpreted as meaning that, as regards the implementation of a decision requiring the repayment of amounts wrongly received, the period for implementation established by that provision starts to run from the day on which that decision becomes final, that is to say, from the day on which the periods for bringing proceedings have expired or all rights of appeal have been exhausted.
[Signatures]