Language of document :

Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 27 November 2014 — Ordre des barreaux francophones et germanophone and Others v Conseil des ministres

(Case C-543/14)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone and Others,

Vlaams Netwerk van Verenigingen waar armen het woord nemen ASBL and Others,

Jimmy Tessens and Others, Orde van Vlaamse Balies, Ordre des avocats du barreau d’Arlon and Others

Defendant: Conseil des ministres

Questions referred

(a)    By making services supplied by lawyers subject to VAT without taking account, having regard to the right to the assistance of a lawyer and the principle of equality of arms, of whether or not a client who does not qualify for legal aid is subject to VAT, is Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax 1 compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice?

(b)    For the same reasons, is Council Directive 2006/112/EC of 28 November 2006 compatible with Article 9(4) and (5) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998, in so far as those provisions establish a right of access to justice without the cost of those procedures being prohibitively expensive through ‘the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice’?

(c)    May services provided by lawyers under a national legal aid scheme be included in the services referred to in Article 132(1)(g) of Directive 2006/112/EC which are closely linked to welfare and social security work, or may they be exempted under another provision of the directive? If that question is answered in the negative, is Directive 2006/112/EC, interpreted as not permitting a VAT exemption for services supplied by lawyers for clients who qualify for legal aid under a national legal aid scheme, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights?

If the questions mentioned in paragraph 1 are answered in the negative, is Article 98 of Directive 2006/112/EC, in so far as it does not provide for the possibility of applying a reduced rate of VAT to services supplied by lawyers, as the case may be depending on whether or not a client who does not qualify for legal aid is subject to VAT, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice?

If the questions mentioned in paragraph 1 are answered in the negative, is Article 132 of Directive 2006/112/EC compatible with the principle of equality and non-discrimination enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 9 of the Treaty on European Union, in conjunction with Article 47 of the Charter, in so far as it does not provide, among activities in the public interest, for VAT exemption for services of lawyers, when other supplies of services are exempted as activities in the public interest, such as the supply of services by the public postal services, various medical services or services connected with education, sport or culture, and when that difference in treatment between services of lawyers and services exempted by Article 132 of the directive raises sufficient doubts because services of lawyers contribute to respect for certain fundamental rights?

(a)    If the questions mentioned in paragraphs 1 and 3 are answered in the negative, can Article 371 of Directive 2006/112/EC be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who are not subject to VAT?

(b)    Can Article 371 of Directive 2006/112/EC also be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who qualify for legal aid under a national legal aid scheme?

____________

____________

1 OJ 2006 L 347, p. 1.