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

27.05.2020

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

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

New judgments                                                     

С-547/18 of 07 May 2020

Supply of services — Място на данъчна привръзка — Taxable person — Subsidiary, established in a Member State, of a parent company, established in a third country — Criteria that a service provider must take into account in order to determine the recipient's permanent establishment — Concept of ‘fixed establishment’

Key aspects of the decision in the economic range:

Common system of the Value added tax. Place of supply of services. Service provider can not make a conclusion for the existence on the territory of a Member State of a permanent establishment of a company established in a third country only by the fact that this company has a subsidiary there and in view of this assessment the provider is not obliged to be informed about the contractual relations between the two subjects. Subsidiary (established in a Member State) of a parent company established in a third country).

Concept of ‘fixed establishment’.

Proceedings between D and the tax authorities concerning their decision to fix VAT for D for services.

С-208/19 of 14 May 2020

Consumer protection — A contract between an architect and a consumer for preparation of a planning for the construction of a new single-family house — Consumer contracts from a distance or off-premises — Concepts of „goods made to the consumer’s specification“, „service contract“, „contract for the construction of new buildings“ and „ sales contract “

Key aspects of the decision in the economic range:

Consumer rights. A contract between an architect and a consumer, according to which the architect is required to carry out the planning for the construction of a new single-family house to be built, including the preparation of plans, is not a contract ‘for the construction of new buildings’. A contract for the supply of ‘goods made to the consumer’s specifications or clearly personalised’.

Concepts of „goods made to the consumer’s specification“, „service contract“, „contract for the construction of new buildings“ and „ sales contract “.

Proceedings concerning the payment of remuneration for architectural services.

С-266/19 of 14 May 2020

Consumer protection - Right of withdrawal - Information to be provided by the professional concerning the conditions, time limit and procedures for exercising the right of withdrawal - Obligation for the professional to indicate his telephone number "when available"

Key aspects of the decision in the economic range:

Consumer information and right of withdrawal concerning distance contracts and off-premises contracts. A telephone number, if the professional, while using the telephone line of the company, does not use this line for the conclusion of distance contracts and that he therefore does not offer it either for the cancellation of contracts concluded at a distance, that is to say to receive declarations of withdrawal.

Litigation concerning the request, made by T, exercising his commercial activity as a natural person, against E, to cease his commercial practice consisting in not indicating his telephone number on his website in the relative information to the consumer's right of withdrawal.

С-446/18 of 14 May 2020

Deduction of input tax — Excess VAT — Retention of the total amount of excess VAT upon a tax inspection — Request for reimbursement of part of the excess tax relating to transactions that are not subject to this procedure — Refusal of the tax administration

Key aspects of the decision in the economic range:

Value added tax. Partial refund of excess VAT claimed. Principle of neutrality. Principle of proportionality. Ability of the tax authorities to defer the refund of the total amount of excess VAT even though only a small part is still the subject of an ongoing tax inspection

Proceedings concerning retention of the total amount of excess VAT from the tax authorities upon a tax inspection.

С-667/18 of 14 May 2020

Legal expenses insurance - Insured person’s right freely to choose a lawyer - Mediation proceedings – Meaning of „proceedings“ and „inquiry“

Key aspects of the decision in the economic range:

Freedom of the insured person to choose a lawyer or representative. Arbitration proceedings but not to mediation proceedings, of the freedom for the holder of legal expenses insurance to choose a lawyer or a representative.

Proceedings concerning the freedom of the insured person, in the context of a legal expenses insurance contract, to choose his or her representative in mediation proceedings.

С-749/18 of 14 May 2020

Freedom of establishment — Tax law — Parent companies and subsidiaries — Vertical integration schemes and horizontal integration schemes — Legislation of a Member State, which allows vertical tax integration between a resident parent company or a permanent native establishment of a non-resident parent company and its resident subsidiaries, but precludes the horizontal tax integration of the subsidiaries between resident subsidiaries of a non-resident parent company

Key aspects of the decision in the economic range:

Corporate taxes. Legislation of a Member State relating to a tax integration scheme. Legislation of a Member State, which allows vertical tax integration between a resident parent company or a permanent native establishment of a non-resident parent company and its resident subsidiaries, but precludes the horizontal tax integration of the subsidiaries between resident subsidiaries of a non-resident parent company. Legislation of a Member State which, which leads to forces a parent company, resident in another Member State, to end vertical tax integration arrangement да прекрати вертикалната данъчна консолидация.

Proceedings between companies incorporated under Luxembourg law and the Office for Direct Taxation concerning the rejection of their joint request for access to the tax consolidation scheme.

 

April

 

Joined Cases С-13/18 and C-126/18 of 23 April 2020

Value added tax — Refund of excess VAT — A late refund — Calculation of interest — Conditions of payment of interest, payable due to the inability to use of excess deductible VAT, levied in breach of EU law, and of interest payable due the delay of the tax administration to pay the amount due — Principles of effectivity and equivalence

Key aspects of the decision in the economic range:

A national practice to compensate VAT payers for the application of a condition laid down by a national law which was subsequently declared by this Court to be contrary to EU law. Practice of the Member State which first put the payment of default interest payable because the tax administration has not exercised within the prescribed time payment of a debt for interest due in connection with the recovery of overpaid VAT detained in violation of European Union law, depending on the submission of a special application.

Two disputes concerning the substantive and procedural conditions under which the taxable person is reimbursed for the excess value added tax (VAT) which could not be reimbursed within a reasonable time due to a condition laid down in the legislation of a Member State subsequently declared by the Court of Justice as contrary to Union law.

С-401/18 of 23 April 2020

Common system of Value added tax — Intra-Community acquisition of goods — Getting the right to dispose of the goods as owner — Chain of transactions for the purchase and resale of goods with a single intra-Community transport — Opportunity to make decisions that are able to influence the legal status of the goods — Transport under a duty suspension arrangement

Key aspects of the decision in the economic range:

Products subject to excise duty. Exemption of supplies of goods dispatched or transported within the European Union. Ascribing transport to one supply within a supply chain. Transport of excise goods under a duty suspension arrangement. Taxable person who carries out an intra-Community transport of goods under suspension of excise duty with the intention of acquiring those goods for the purposes of his economic activity once they have been released for free circulation in the Member State of destination Primacy of EU law. Limits of an interpretation in conformity with EU law. Principle of in dubio mitius.

Proceedings concerning the deduction of value added tax (VAT) on the acquisition of fuels which a company has transported from certain Member States to the Czech Republic under the excise duty suspension arrangement.

С-640/18 of 23 April 2020

Annual accounts of certain types of companies - Conditions under which the annual accounts of companies may or must serve as a basis for the determination by the tax authorities of the Member States of the taxable amount - Acquisition of a financial asset by a joint stock company - Entry in the income statement of a discount linked to a debt due more than one year, not producing interest, and entry of the acquisition price of the asset in the assets side of the balance sheet, after deduction of the discount - Principle of true and fair view

Key aspects of the decision in the economic range:

Fourth Directive 78/660/EEC. Annual accounts of certain types of companies. Obligation to provide additional information. Derogation from a provision of the Directive in "exceptional cases". Acquisition by a public limited company of a financial asset, for which the payment of the price is planned in a long-term installment, without interest, under conditions similar to those of a loan. Use of an accounting method which provides for the entry in the income statement of a discount, at the market rate, linked to the debt at more than one year, non-bearing interest, relating to this acquisition, and the entry of the acquisition price of this asset on the assets side of the balance sheet, after deduction of the said discount.

Dispute over the corporate tax due by the company.

С-710/18 of 23 April 2020

Free movement of workers - Ranking in the levels of the remuneration system - Remuneration system linking the benefit of higher remuneration to seniority acquired from the same employer - Limitation of considering previous periods of relevant activity completed with an employer located in a Member State other than the home Member State

Key aspects of the decision in the economic range:

Difference in treatment between workers depending on the employer from whom the professional experience was acquired. National regulations which, for the purposes of determining the amount of remuneration of a worker as a school teacher with a local authority, consider only up to a total duration of three years at maximum previous periods of activity completed by said worker with an employer other than that authority, situated in another Member State, when this activity is equivalent to that which that worker is required to exercise.

Dispute between W and the Land of Lower Saxony, Germany concerning partial compliance, in determining the amount of the applicant's remuneration for the relevant length of service acquired by her with an employer established in France.

С-5/19 of 30 April 2020

Common rules for the internal market in natural gas - Public service obligations - Natural gas storage obligations for the purposes of ensuring the security and regularity of supply - National legislation providing that the financial burden of the public service obligations imposed on the natural gas undertakings is to be passed on to their customers - Adoption of a legal act by a national regulatory authority imposing a public service obligation

Key aspects of the decision in the economic range:

Legislation of a Member State which provides that the costs associated with the natural gas storage obligations imposed on natural gas undertakings in order to ensure the security and regularity of natural gas supply in that Member State are to be borne entirely by those undertakings’ customers. Legislation of a Member State which releases the regulatory authority of that Member State from the obligation to comply with certain provisions of national legislation governing the procedure for the adoption of normative legal acts where it adopts an act imposing a public service obligation.

Proceedings concerning the legality of regulations adopted by the latter according to which the entire financial burden associated with the public service obligations imposed on the energy companies is to be borne by customers, who may be private individuals.

С-565/18 of 30 April 2020

Free movement of capital - Financial transaction tax - Transactions in derivative financial instruments having as underlying title a security issued by a company resident in the taxing Member State - Tax due regardless of the place of conclusion of the transaction - Administrative and declarative obligations

Key aspects of the decision in the economic range:

Right of a Member State to impose a tax on certain transactions based on criteria other than the conventional criteria. Regulation of a Member State which subjects financial transactions in derivative financial instruments, weighing on the parties to the transaction, to a tax and to administrative and reporting obligations, regardless of where or where the transaction is concluded State of residence of these parties and of any intermediary intervening in the execution thereof, provided that these instruments have as their underlying title a security issued by a company established in that Member State.

Dispute over a request for refund of tax paid on financial transactions with derivative financial instruments.

С-661/18 of 30 April 2020

Deduction of input tax — Mixed taxable person — Deduction methods — Pro rata method — Deduction on the basis of actual use — Adjustment of deductions — Change in the factors used to determine the amount to be deducted — Output transaction incorrectly regarded as VAT-exempt — National measure prohibiting a change in the deduction method for years that have already elapsed — Principles of fiscal neutrality, legal certainty, effectiveness, and proportionality

Key aspects of the decision in the economic range:

A Member State, when authorising a taxable person to deduct VAT on the basis of the use made of all or part of the goods and services used both for transactions in respect of which VAT is deductible and for transactions in respect of which VAT is not deductible, from prohibiting such a taxable person from changing the deduction method once the final proportion has been fixed.

National legislation under which a taxable person who deducted VAT charged on the acquisition of goods and services used both for transactions in respect of which VAT is deductible and for transactions in respect of which VAT is not deductible, using the turnover-based method, is denied the opportunity, once the final proportion has been fixed, to correct those deductions, by using the actual use method.

Proceedings concerning the adjustment of value added tax deductions made by a company, in the course of its business, which is the provision of postal services.

С-772/18 of 30 April 2020

Approximation of the laws of the Member States relating to trade marks — Goods released for free circulation — Imports — Retention of goods for marketing — Exports — Concept of ‘use in the course of trade’

Key aspects of the decision in the economic range:

A person who does not engage in trade as an occupation, who takes delivery of, releases for free circulation in a Member State and retains goods that are manifestly not intended for private use, where those goods were sent to that person’s address from a third country and where a trade mark, without the consent of the proprietor of that trade mark, is affixed to those goods.

Concept of ‘use in the course of trade’.

Proceedings concerning a trade mark infringement action

 

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