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Tax & Financial Standards New Judgments of the ECJ For January 2020

30.01.2020

Tax & Financial Standards New Judgments of the ECJ For January 2020

С-32/19 of 22 January 2020

Citizenship of the Union - Right to move and reside freely in the territory of the Member States - Right of permanent residence - Acquisition before completion of a continuous period of five years of residence - Workers who, at the time they stop working, have reached the age for entitlement to an old age pension

Key aspects of the decision in the economic range:

Freedom of movement for persons. Right of workers to remain in the territory of a Member State after having been employed in that State. Right of permanent residence in the host Member State before completion of a continuous period of 5 years of residence, when the conditions that the person must have been working in that Member State for the preceding 12 months and must have resided in that Member State continuously for more than 3 years apply to workers who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension.

Proceedings between A and the Pensions Office, Austria, concerning the latter’s refusal to grant him the compensatory supplement provided for in Austrian legislation to augment his retirement pension.

С-617/10 of 26 February 2013

Tax penalties and criminal proceedings for tax evasion — National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct — Ne bis in idem principle — Case-law, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision is compatible with the Charter.

Key aspects of the decision in the economic range:

Accumulation of administrative and criminal penalties. Ne bis in idem as a general principle of European Union law. Interpretation of the Charter in the light of the European Convention on Human Rights. European Court of Human Rights. Determination of the fundamental rights of the European Union based on the common constitutional traditions of the Member States. A national judicial practice, compatible with European Union law if it makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the ECHR and by the Charter conditional upon that infringement being clear from the instruments concerned or the case-law relating to them.

A dispute concerning proceedings brought by the Public Prosecutor’s Office for serious tax offences.

December

С-168/18 of 19 December 2019

Protection of employees in the event of the insolvency of their employer — Supplementary pension schemes — Protection of entitlement to old-age benefits — Minimum guaranteed level of protection — Former employer’s obligation to offset a reduction in an occupational old-age pension — External pension institution

Key aspects of the decision in the economic range:

Protection of entitlement to old-age benefits. Offset of a previous pension reduction by the former employer. Minimum level of protection guaranteed. Direct effect against a supplementary occupational pension institution. An insolvency insurance institution responsible for occupational pensions to take over payments which an employer, now in insolvency, had the obligation to make to a former employee in order to comply with a legal obligation.

Proceedings concerning the offset of reductions in the amount of benefits paid by a pension fund.

С-263/18 of 19 December 2019

Harmonisation of certain aspects of copyright and related rights in the information society — Right of communication to the public — Making available — Distribution right — E-books — Virtual market for ‘second-hand’ e-books — Concepts of "Communication to the public", "Act of making available to the public" and "Public"

Key aspects of the decision in the economic range:

Information society. Intellectual property. Virtual market for ‘second-hand’ e-books. Acts necessary to ensure legitimate use. Distribution. Making available for use, at a distance, by downloading, for an unlimited period, of e-books. making available remotely by downloading of e-books at a price by means of which the copyright holder receives remuneration equivalent to the economic value of the work belonging to him. Concepts of "Communication to the public", "Act of making available to the public" and "Public".

Proceedings concerning the provision of an online service consisting in a virtual market for ‘second-hand’ e-books

С-290/19 of 19 December 2019

Consumer protection — Consumer credit agreements — Information to be included in credit agreements — Annual percentage rate of charge — Lack of indication of the exact percentage of that rate of charge — Rate of charge expressed as a range between 21.5% and 22.4%

Key aspects of the decision in the economic range:

An action for repayment of sums paid but not due on the ground that the credit should have been considered to be free of interest and charges, since the APRC had been set in the contract not as a single rate, but as a range referring to a minimum and a maximum rate. Additional assumptions to facilitate the calculation of the APRC in cases where certain information is not known or where it is not possible, for other reasons, to determine it.

Proceedings regarding a consumer credit agreement concluded by a consumer with a credit provider, in which the annual percentage rate of charge (‘APRC’) is not set at a single rate.

Joined Cases С-355/18, С-356/18, C-357/18 and C-479/18 of 19 December 2019

Direct life assurance — Right of cancellation — Incorrect information concerning the detailed rules for exercising the right of cancellation — Formal requirements for the declaration of cancellation — Effects on the obligations of the assurance undertaking — Time limit — Lapse of the right of cancellation — Possibility to cancel a contract after it has been terminated — Repayment of the surrender value of the contract — Reimbursement of premiums paid — Right to remuneration interest — Limitation

Key aspects of the decision in the economic range:

Freedom to provide services. Under what circumstances and for how long can a policyholder cancel a life assurance contract. Coordination of laws, regulations and administrative provisions relating to direct life assurance. A notice of termination of a life insurance contract due incorrect information the right of cancellation and after it has been unilateral terminated by the policyholder. No information or incorrect information on the conditions governing the exercise of that right. Expiry of the right of cancellation. Legal consequences of cancellation.

Seven sets of proceedings regarding the scope of the right to cancel life assurance contracts and the time limit to which that right is subject.

С-389/18 of 19 December 2019

Taxation applicable in the case of parent companies and subsidiaries of different Member States — Prevention of double taxation — Prohibition on taxing profits received — Inclusion of the dividend distributed by the subsidiary in the parent company’s tax base — Deduction of the dividend distributed from the parent company’s tax base and the indefinite carrying forward of the surplus to the following tax years — The order in which tax deductions on profits are to be applied

Key aspects of the decision in the economic range:

National legislation, aimed at preventing double taxation of the profit distributed by the subsidiary.

Dividends, deducted from the parent company’s tax base, only to the extent that there is taxable profit. Unlimited possibility of carrying forward of the surplus in time. Mandatory order of deduction. A system of exemption (refraining from taxing the distributed profits received by a parent company by virtue of its association with its subsidiary) under which, first, the dividend distributed by the subsidiary is included in the tax base of the parent company and, secondly, 95% of that dividend is deducted from that tax base as [DTI].

Proceedings concerning the order in which the deductible income must be deducted from taxable profits.

С-390/18 of 19 December 2019

Information society services - Connection of hosts, whether businesses or individuals, with accommodation to rent with persons seeking that type of accommodation - National legislation imposing certain restrictions on the exercise of the profession of real estate agent - Obligation to give notification of measures restricting the freedom to provide information society services — Failure to give notification - Criminal proceedings with an ancillary civil action - Notion of ‘information society service’

Key aspects of the decision in the economic range:

Freedom to provide services. Intermediation service which, by means of an electronic platform, is intended to connect, for remuneration, potential guests with professional or non-professional hosts offering short-term accommodation services, while also providing a certain number of other services. Classification of services provided via electronic platforms. Service consisting in connecting hosts with accommodation to rent with persons seeking that type of accommodation. Additional provision of various other services.

Notion of ‘information society service’.

Criminal proceedings for handling monies for activities concerning the mediation and management of buildings and businesses by a person without a professional licence.

Joined Cases С-453/18 and C 494/18 of 19 December 2019

Judicial cooperation in civil matters - European order for payment procedure - Provision of additional documents to support the claim - Unfair terms in consumer contracts - Review by the court seised in the context of an application for a European payment order

Key aspects of the decision in the economic range:

Application for a European order for payment. Contract concluded between a seller or supplier and a consumer. Official controls on the possible existence of unfair terms. Review by a court of its own motion. Documents which are non-mandatory in the context of an application for a European order for payment but essential for assessing whether there are unfair terms.

Two European order for payment proceedings concerning the recovery of claims arising from loan contracts.

С-707/18 of 19 December 2019

Common system of value added tax - Deduction of input tax – Purchase of immovable property not registered in the national land register — First-registration costs incurred by the purchaser - Participation in a supply of services or investment expenditure carried out for the purposes of an undertaking

Key aspects of the decision in the economic range:

Parties to a transaction, the aim of which is to transfer the ownership of immovable property, that agree that the future purchaser will incur some or all of the costs of the administrative formalities relating to that transaction — in particular those connected with the first registration of that property in the Land Register — and as thereby precluding the purchaser from being entitled to deduct VAT. Steps, deemed to have been carried out on behalf of another person, within the meaning of the VAT Directive.

Proceedings concerning the right to reimbursement of the value added tax on transactions by which A carried out, at its own expense, the necessary steps for the first registration in the national land register of the land which it intended to purchase.

С-715/18 of 19 December 2019

Value added tax - Option for the Member States to apply a reduced rate of VAT to certain supplies of goods and services - Reduced rate of VAT applicable to the letting of places on camping or caravan sites - Question of whether that reduced rate is applicable to the letting of boat moorings in a marina - Concept of ‘accommodation’

Key aspects of the decision in the economic range:

Ability to apply a reduced rate of VAT to services for the letting of boat moorings. Comparison with the letting of premises and sites for the parking of vehicles. Whether the reduced rate of VAT, envisaged for the letting of places on camping or caravan sites is also applicable to the letting of boat moorings.

Concept of ‘accommodation’.

Proceedings concerning the rate of value added tax applicable to the letting of boat moorings.


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