Fernando Cordón González

COURT OF JUSTICE

Case study: 8/81 Becker:

The Judgment of the Court of Justice, dated January 19, 1982, in case 8/81, deals with a
preliminary ruling submitted by the Finanzgericht (Tax Court) Münster, before the Court of
Justice of the European Communities . The case involves Ursula Becker, an independent credit
negotiation agent based in Münster, and the Finanzamt (Tax Office) Münster-Innenstadt. The
request sought a preliminary ruling on the interpretation of Article 13 of Council Directive
77/388/EEC on Value Added Tax (VAT) and its applicability in the Federal Republic of Germany.

In short, the issue in dispute was whether the provision relating to the exemption from VAT for
credit trading operations, as set out in the Directive, could be invoked from 1 January 1979,
despite the fact that the Federal Republic Germany had not yet adopted the necessary
measures for its implementation.

The court considered several arguments put forward by the parties involved, including the
argument that the exemption could cause problems in the German VAT system, and concluded
that, in the event of non-implementation of the Directive, a credit trading agent that did not
charge VAT in the next phase it could invoke the exemption from January 1, 1979. The court
also determined that the State could not allege non-execution of the Directive against it.

 A preliminary question asked by the spanish supreme court of justice:

Statement

1 The request for a preliminary ruling seeks the interpretation of Council Framework Decision
2002/584/JAI of 13 June 2002 on the European Arrest Warrant and the surrender procedures
between Member States (OJ 2002, L 190, p. 1; correction of errors in OJ 2017, L 124, p. 37), as
amended by Council Framework Decision 2009/299/JAI of 26 February 2009 (OJ 2009, L 81, p.
24) (hereinafter referred to as "Framework Decision 2002/584").

2 This request has been submitted in the context of a criminal proceeding against Mr. Lluís Puig
Gordi, Mr. Carles Puigdemont Casamajó, Mr. Antoni Comín Oliveres, Ms. Clara Ponsatí Obiols,
Ms. Meritxell Serret Aleu, Ms. Marta Rovira Vergés, and Ms. Anna Gabriel Sabaté.

The Supreme Court decided to suspend the proceedings and raise the following preliminary
questions to the Court of Justice:

1) Does the Framework Decision [2002/584] allow the executing judicial authority to refuse the
surrender of the requested person through a European Arrest Warrant (EAW), based on
grounds for refusal provided in their national law but not explicitly mentioned in the
Framework Decision?

2) If the answer to the previous question is affirmative and in order to ensure the viability of an
EAW and properly access the remedy provided in Article 15.3 of the Framework Decision
[2002/584], should the issuing judicial authority investigate and consider the various legal
systems of the Member States to take into account possible grounds for refusal of an EAW not
foreseen in the Framework Decision [2002/584]?

3) In view of the answers to the previous questions, considering that, pursuant to Article 6.1 of
the Framework Decision [2002/584], the competence of the issuing judicial authority to issue
an EAW is determined by the law of the issuing Member State, should that provision be
interpreted to mean that the executing judicial authority can question the competence of the
issuing judicial authority to act in the specific criminal case and refuse surrender on the
grounds that it is not competent to issue it?

4) Regarding the potential control by the executing judicial authority over the respect for the
fundamental rights of the requested person in the issuing Member State:

a) Does the Framework Decision [2002/584] allow the executing judicial authority to refuse
the surrender of the requested person on the basis of perceiving a risk of violation of their
fundamental rights in the issuing Member State, based on a report from a Working Group
submitted to the national executing authority by the requested person themselves?

b) For the previous question, does such a report constitute an objective, reliable, accurate,
and duly updated element to justify, in light of the case law of the Court of Justice, the refusal
to surrender the requested person on the basis of a serious risk of fundamental rights
violation?

c) In the case of an affirmative answer to the previous question, what elements does EU law
require for a Member State to conclude that there is a risk of fundamental rights violation in
the issuing Member State as claimed by the requested person, justifying the rejection of the
EAW?

5) Are the answers to the above questions influenced by the circumstance that the person
whose surrender is requested has been able to contest the competence of the issuing judicial
authority, their arrest warrant, and the guarantee of their fundamental rights before the
judicial bodies of the issuing Member State, including at a second instance?

6) Are the answers to the previous questions influenced when the executing judicial authority
rejects an EAW for reasons not explicitly provided for in the mentioned Framework Decision
[2002/584], especially due to the perceived lack of competence of the issuing judicial authority
and the serious risk of fundamental rights violation in the issuing Member State, and does so
without requesting specific additional information from the issuing judicial authority that
would condition that decision?

7) If the answers to the previous questions reveal that, in the circumstances of the case, the
Framework Decision [2002/584] opposes the refusal to surrender a person on the basis of the
stated grounds for refusal:

Does the Framework Decision [2002/584] oppose this referring court from issuing a new EAW
against the same person and to the same Member State?