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Tax & Financial Standards New Judgments of the ECJ For October 2019

28.10.2019

Tax & Financial Standards New Judgments of the ECJ For October 2019

Tax & Financial Standards New Judgments of the ECJ For October 2019

New judgments

С-42/18 of 3 October 2019

Value added tax - Exemptions - Transactions concerning payments - ATM operation services provided by a company to a bank – Concept of "payments" and "transactions concerning payments"

Key aspects of the decision in the economic range:

VAT exempt transaction concerning payments. Cash withdrawal from an automated teller machine (ATM). Service supplied by an undertaking to a bank in circumstances in which the operation of ATMs has been outsourced.

Concept of "payments" and "transactions concerning payments".

Dispute concerning the refusal of the administration to release the company from value added tax on services related to the operation of ATMs, that it provides to a bank.

С-208/18 of 3 October 2019

Jurisdiction over consumer contracts - Natural person carrying out transactions on the international exchange market through the intermediary of a brokerage company - Notion of ‘consumer’ and ‘retail client’

Key aspects of the decision in the economic range:

Judicial cooperation in civil matters. Natural person engaged in the trade of foreign currencies on the international exchange market through a brokerage company. Whether a natural person which engages in trade on the FOREX market must be regarded as a consumer or whether, by reason of the knowledge and expertise required to engage in that trade, of the complex and atypical nature of the contract at issue, and of the risks incurred, that person cannot be considered a consumer.

Notion of ‘consumer’ and ‘retail client’.

Dispute concerning a request for payment of the difference between Ms P’s profit and the profit she would have obtained if the order to purchase a currency, given by her, had been executed by F without delay.

С-260/18 of 3 October 2019

Consumer contracts — A mortgage loan agreement, indexed in foreign currency— Term relating to arrangement of the exchange rate between the currencies — Effects of a declaration that a term is unfair — Possiblity for the court to modify the contract by recourse to general provisions of national law — Assessment of the consumer’s interests — Maintenance of the contract’s validity without unfair terms

Key aspects of the decision in the economic range:

Unfair terms in consumer contracts. Contracts denominated in a foreign currency. Maintenance of the contract’s validity without unfair terms. Establishing the unfairness of certain terms of the loan agreement, indexed in foreign currency and providing interest rate directly tied to the interbank rate for the relevant currency. Consequences for the consumer's situation caused by the cancellation of the contract in its entirety. Filling in the gaps in a contract created by the removal of unfair terms contained therein.

Proceedings concerning the alleged unfairness of clauses on the indexation mechanism used in the contract for mortgage loan indexed in foreign currency.

С-329/18 of 3 October 2019

Value added tax - Procurement of food products - Deduction of input tax - Refusal of deduction - Possibly fictitious supplier - VAT fraud - Requirements relating to knowledge on the part of the purchaser -Obligations of traceability of foodstuffs and identification of the supplier - Registration obligations of operators in the food sector - Effect on the right to deduct VAT

Key aspects of the decision in the economic range:

Right to deduct VAT. Refusal. Supply by co-contractors involved in tax fraud. Duty of care of the taxable person. Relevance of compliance by the taxable person with sectorial obligations. Obligation of traceability. Registration of food business operators. Refusal of the right to deduct input VAT paid to a taxable person participating in the food chain on the ground that the taxable person has he has failed to comply with the obligations relating to the identification of his suppliers.

Dispute concerning a payment demand made to A for the amount of value added tax on the purchase of rapeseed paid upstream and deducted by A, together with a fine and default interest.

С-621/18 of 3 October 2019

Consumer protection — Unfair terms in consumer contracts — Assessment of unfair character of the contractual terms — Requirement for terms of the contract to be drafted in plain and intelligible language — Terms requiring payment of charges for unspecified services — Definition of "main subject matter of the contract"

Key aspects of the decision in the economic range:

Contractual terms which have not been individually negotiated and which have been concluded in a loan contract. Requirement for terms, related to the definition of the main subject-matter of the contract, to be drafted in plain and intelligible language. Announcement of the clauses laying down the amount of the management charges and the disbursement commission for unfair on the grounds that, the contract does not stipulate in return what specific services are covered by those charges.

Concept of "main subject matter of the contract".

Proceedings concerning a request for establishment the alleged unfairness of certain terms contained in a foreign currency loan agreement.

С-548/18 of 9 October 2019

Judicial cooperation in civil matters — Law applicable to contractual obligations — Assignment of claims — Third-party effects — Concept of ‘relationship’ between the assignor and the assignee

Key aspects of the decision in the economic range:

Area of freedom, security and justice. Voluntary assignment and contractual subrogation. Applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees.

Concept of ‘relationship’ between the assignor and the assignee.

A dispute between a banking institution based in Luxembourg, and a banking institution based in Germany, concerning the release of the lodgement, in a German court, of a sum of money deposited by the trustee in insolvency of a debtor of those two institutions.

Joined Cases C-573/18 and C-574/18 of 9 October 2019

Common system of value added tax: uniform basis of assessment — Producer organisation having set up an operational fund — Deliveries made by the producer organisation to its members in exchange for payments not covering the entirety of the purchase price — Additional financing paid by the operational fund — Concept of "subsidy directly linked to price"

Key aspects of the decision in the economic range:

Common organisation of the market in fruits and vegetables. VAT solely on the amounts invoiced to producers. Amounts paid from the operational funds as compensation for making the goods available to producers, in so far as they came from the financial assistance.

A fact that, in their VAT returns the producer organisations did not consider the amounts which each of those organisations received as a subsidy from the operational funds as constituting consideration for the supply of goods to producers.

Concept of "subsidy directly linked to price".

Two sets of proceedings concerning value added tax assessment notices.

С-4/18 of 16 October 2019

Common system of value added tax — Exemptions for certain activities in the public interest — Public postal services — Universal postal service provider — Private operator providing the service of formally serving court or administrative authority documents — Concepts of "universal postal service" and "public postal services"

Key aspects of the decision in the economic range:

Common rules for the development of the internal market of Community postal services. Services, exempt from VAT as services effected by the ‘public postal services’. An undertaking, which effects the formal service of documents pursuant to provisions of public law. A ‘universal service provider’, who provides a universal postal service in whole or in part. Exemption from tax of such service.

Concepts of "universal postal service" and "public postal services".

Two sets of proceedings concerning the refusal to exempt from value added tax the formal service of documents effected by companies for courts and administrative authorities.

С-189/18 of 16 October 2019

Denial of the right of deduction — Collection of evidence — Principle of respect of the right of defense — Right to hearing — Access to the file — Principle of equality of arms — Principle of competitiveness — National legislation or practice according to which the tax administration, when examining the taxable person's exercise of the right to deduct VAT, is bound by his factual findings and legal qualifications in related administrative proceedings to which that taxable person was not a part

Key aspects of the decision in the economic range:

The VAT Directive and the principle of respect of the right of defense. Right of deduction. Tax evasion or fraud. The principles governing the burden of proof placed upon tax authorities to prove the involvement of a taxable person in tax evasion. The right of the taxable person to be granted access to the documents which are relevant to its defence. Jurisdiction brought against an appeal against a decision of the Tax Administration to determine additional liability to pay VAT. Evidence collected in the context of a related administrative proceeding to which the taxable person was not a party, and used to justify that decision, collected in violation of the rights guaranteed by EU law.

Proceedings concerning two decisions ordering in particular the payment of amounts as value added tax.

С-692/17 of 17 October 2019

Value added tax — Exemptions — Transactions relating to the granting, negotiation and management of credit — Transactions concerning debts, with the exception of the recovery of debt — Assignment for consideration, to a third party, of a position held in enforcement proceedings for recovery of a debt recognised by a judgment

Key aspects of the decision in the economic range:

An exemption from VAT for a taxable person’s transactions concerning debts, except those concerning debt collection. A transaction which, for the taxable person, consists in assigning, to a third party, for consideration all the rights and obligations deriving from the taxable person’s position in enforcement proceedings for recovery of a debt recognised by a judgment, a debt the payment of which was secured by a right over immovable property awarded to that taxable person and made the subject of attachment.

Proceedings concerning the value added tax payable on account of the assignment for consideration, to a third party, of a company’s position in enforcement proceedings for recovery of a debt recognised by a judgment.

С-653/18 of 17 October 2019

Exemptions on exportation — Conditions laid down by the Member States — Principle of proportionality — Principle of fiscal neutrality — Practice of a Member State consisting in refusing the right to exemption where the person acquiring the goods exported is not identified

Key aspects of the decision in the economic range:

The right of VAT exemption, where the goods concerned were exported to a destination outside the European Union and where, following their exportation, the tax authorities found that the person acquiring those goods was not the person stated on the invoice issued by the taxable person but another entity which has not been identified. Possible effect of a tax evasion committed in the territory of a non-Member State on the applicability of the right to exemption from VAT.

Concept of "supply of goods".

Proceedings concerning the refusal of an exemption from value added tax in respect of exports of goods to a destination outside the European Union.

С-579/18 of 17 October 2019

Excise duty — debtor for the payment of the excise duty due after the unlawful importation of goods into the customs territory of a Member State— A company, civilly liable for the actions, committed by its manager

Key aspects of the decision in the economic range:

General arrangements for excise duty. National legislation which provides that in the case of the unlawful importation into the customs territory of the European Union of goods subject to excise duties, exempt for consumption in another Member State, the entity civilly liable for its manager, who has committed that offence, is jointly and severally liable for the customs debt.

Proceedings concerning the determination of the debtor for the payment of the excise duty due after the unlawful importation of goods into Belgium.


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