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

28.09.2020

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

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

New judgments

Joined Cases С-84/19, С-222/19 and C-252/19 of 03 September 2020

Consumer protection — National provision providing for the maximum amount of non-interest credit costs — Contractual term passing on to the consumer costs of the lender’s business activity — Significant imbalance between the rights and obligations of the parties — Contractual terms which do not specify the services for which remuneration is sought — Obligation to draft contract terms in plain, intelligible language — National legislation laying down a method of calculating the maximum non-interest credit cost which may be charged to the consumer

Key aspects of the decision in the economic range:

Credit agreements for consumers. Unfair terms in consumer contracts. Exclusion provided for contractual terms reflecting mandatory legislative or regulatory provisions. National provision instituting a maximum amount of total cost of the credit for the consumer excluding interest. Application to clauses providing fees in addition of an interest. Compatibility of a national legislation laying down the maximum amount of non-interest credit cost. Compatibility of a national legislation calculating maximum amount of non-interest credit cost by taking into account the general expenses of the credit institution.

Three sets of proceedings concerning the recovery from consumers of sums claimed by credit institutions under consumer credit agreements.

С-186/19 of 03 September 2020

Judicial cooperation in civil matters - Jurisdiction - Exclusive jurisdiction - Action brought by an international organisation based on immunity from execution seeking to have an interim garnishee order lifted and a prohibition on new orders being levied on the same grounds – Concept of „civil and commercial matters“ – Concept of „provisional, including protective, measures“

Key aspects of the decision in the economic range:

An action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution. Whether reliance in an action by an international organisation on the privilege derived from immunity from execution automatically excludes that action from the scope of Regulation No 1215/2012.

Concept of „civil and commercial matters“.

Concept of „provisional, including protective, measures“.

Proceedings between and SH concerning the lifting of an interim garnishee order.

С-356/19 of 03 September 2020

Air transport - Right to compensation in the event of delay or cancellation of a flight – Compensation procedure – Claim expressed in national currency – National provision prohibiting the creditor from choosing the currency

Key aspects of the decision in the economic range:

Establishment of common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Provision governing not only the scope of the obligation to pay compensation but also the manner in which that obligation is to be discharged. Provisions of national law which result in the dismissal of an action brought by a passenger or his legal successor on the sole ground that the claim incorrectly indicated the national currency of the passenger’s place of residence.

Proceedings concerning a claim for compensation on the basis of Regulation No 261/2004.

Joined Cases С-503/19 and C-592/19 of 03 September 2020

Status of third-country nationals who are long-term residents — Elements to be taken into consideration — Failure to take those elements into consideration — Refusal to grant long-term resident status on the ground that the person concerned has previous convictions

Key aspects of the decision in the economic range:

Status of third-country nationals who are long-term residents. National law that allows long-term resident status to be refused on grounds of public policy or public security. Whether a criminal record, of any nature, is sufficient grounds for refusing access to long-term resident status, without any requirement to assess the duration of residence and the existence of links with the country of residence.

Two disputes concerning a refusal of the applications for long-term resident status submitted by the persons concerned.

С-539/19 of 03 September 2020

Roaming on public mobile communications networks within the European Union — Roaming provider required to automatically apply the regulated roaming tariff — Application to consumer having opted for a specific roaming tariff prior to the entry into force of Regulation (EU) No 531/2012)

Key aspects of the decision in the economic range:

Abolition of retail roaming surcharges. Sustainability of the abolition of retail roaming surcharges. Provision of regulated retail roaming services. Transitional retail roaming surcharges. Transparency of retail charges for roaming calls and SMS messages. Automatically switching of all customers to the regulated tariff under Article 6a of Regulation (EU) No 531/2012 regardless of whether those customers hitherto had a regulated tariff or a special, so-called alternative, roaming tariff.

Proceedings between a telecommunications service provider which operates, O, and the Federal Union of consumer organisations and associations, B, concerning an injunction brought by the latter against O’s practices relating to the arrangements for switching to the new regulated roaming tariff at European Union level, following the abolition, with effect from 15 June 2017, of retail roaming surcharges within the Union.

С-719/18 of 03 September 2020

Electronic communications — Media freedom and pluralism — Freedom of establishment — National legislation prohibiting an undertaking which has significant market power in a sector from establishing a ‘significant economic dimension’ in another sector — Calculation of revenues received in the electronic communications sector and the media sector — Definition of the electronic communications sector — Restriction to markets which have been subject to ex ante regulation — Account taken of the income of affiliated companies — Fixing of different income thresholds for undertakings active in the electronic communications sector

Key aspects of the decision in the economic range:

A common regulatory framework for electronic communications networks and services. Calculation of revenues earned in the electronic communications sector and in the Integrated Communications System. Limitation of the electronic communications sector to markets forming the subject of ex ante regulation. Accounting for the revenues of affiliated companies. Differentiation of revenue thresholds as between companies active in the electronic communications sector and other operators. Legislation of a Member State which has the effect of preventing a company registered in another Member State, the revenue of which in the electronic communications sector, as defined for the purposes of that national legislation, including through controlled or affiliated companies, is in excess of 40% of the total revenues in that sector, from earning, within the SIC, revenue exceeding 10% of the total revenues generated in that system.

Proceedings concerning a provision of national law which prohibits an undertaking from receiving revenue in excess of 10% of the total revenues generated in the integrated communications system (‘the SIC’), in the case where that undertaking has a share of more than 40% of the total revenues generated in the electronic communications sector.

С-265/19 of 08 September 2020

Intellectual property - Rights related to copyright - Right of the performers to equitable remuneration shared with the phonogram producers - Applicability to nationals of third States - Reservations notified by third States - Requirement that any limitation must be provided for by law, respect the essence of the fundamental right and be proportionate – Division between the European Union and the Member States of competences to set those limitations – Division of competences in relations with third States

Key aspects of the decision in the economic range:

Rights related to copyright in the field of intellectual property. Division of powers between the Union and its Member States. Obligation of ‘national treatment’ of performers. Exceptions to that obligation resulting from international reservations. Exclusive competence of the Union or the Member States’ competence to determine, on the basis of those reservations, which third-country performers are entitled to equitable remuneration.

Proceedings concerning the right of nationals of third States to a single equitable remuneration when they have contributed to a phonogram which is used in Ireland.

Joined Cases С-674/18 and C-675/18 of 09 September 2020

Social policy - Transfers of undertakings - Safeguarding of employees’ rights - Protection of employees in the event of the insolvency of their employer - Transfer made by the insolvency administrator of the transferring undertaking subject to insolvency proceedings - Occupational old-age pension benefits – Restriction on the obligations of the transferee – Amount of the benefit payable under the supplementary occupational pension scheme calculated on the basis of the employee’s pay when insolvency proceedings were opened

Key aspects of the decision in the economic range:

Safeguarding of employees rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses. Safeguarding the rights of employees in the event of insolvency of employers. Supplementary pension benefits. Whether transferees responsible for supplementary pension benefits of employees of an undertaking transferred from an insolvent transferor.

Two proceedings concerning accrued rights to an occupational old-age pension benefit in the event of a transfer of an establishment carried out in the course of insolvency proceedings.

С-509/19 of 10 September 2020

Union Customs Code - Imports of electronic products equipped with software - Reporting as customs value of software development costs

Key aspects of the decision in the economic range:

Customs value. Development costs for software, added to the transaction value for the imported product, if they are not included in the price actually paid or payable for the imported product. Determination of the customs value of imported goods by adding to its contract value the economic value of software created in the Union and provided free of charge by the buyer to a seller established in a third country.

Proceedings concerning the taking into account, in respect of customs value, of the software development costs supplied free of charge by the buyer to the producer for use in the production and sale for export of the goods.

С-738/19 of 10 September 2020

Consumer protection — Unfair terms in consumer contracts — Social housing — Obligation of residence and prohibition on subletting the property — Assessment of whether penalty clauses are unfair

Key aspects of the decision in the economic range:

Unfair terms in consumer contracts. A degree of interaction between the term at issue and other terms, having regard, inter alia, to their respective scope. A breach on the basis of which payment of the penalty and compensation in the form of the restitution of unfairly made profits are sought.

A dispute between A, in its capacity as the landlord of a social housing dwelling, and its tenant B and the subtenant C, concerning the payment, first, of the contractual penalty for breach of the obligation to reside in that dwelling and of the prohibition on subletting and, second, of a sum corresponding to the profit unlawfully made from the subletting by B.

Joined Cases С-807/18 and C-39/19 of 15 September 2020

Electronic communications — Open internet access — End-users’ rights — Right to provide applications and services — Prohibition of agreements and commercial practices limiting the exercise of end users’ rights — Concepts of ‘agreements’, ‘commercial practices’, ‘end users’ and ‘consumers’

Key aspects of the decision in the economic range:

Determination of measures concerning open internet access. Universal service and users’ rights relating to electronic communications networks and services. Right to access applications and services and to use them. Assessment of whether the exercise of end users’ rights is limited. Obligation of equal and non-discriminatory treatment of traffic. Possibility of implementing reasonable traffic-management measures. Prohibition of measures blocking and slowing down traffic. Commercial practices consisting in offering packages which provide (i) that customers subscribing to them purchase a tariff entitling them to use a given data volume without restriction, without any deduction being made from that volume for using certain specific applications and services covered by ‘a zero tariff’ and (ii) that once the data volume has been used up, those customers may continue to use those specific applications and services without restriction, while measures blocking or slowing down traffic are applied to the other applications and services.

Concepts of ‘agreements’, ‘commercial practices’, ‘end users’ and ‘consumers’.

Two sets of proceedings concerning two decisions by which it is ordered the termination of some of internet access services.

С-312/19 of 16 September 2020

Value added tax — Joint activity agreement — Partnership — Allocation of an economic transaction to one of the partners — Capacity to be a taxable person — Determination of the taxable person liable for the tax — Concept of ‘taxable person’

Key aspects of the decision in the economic range:

Joint action by several persons. Allocation of transaction to one taxable person. A partnership, which lacks legal personality and is characterised by the fact that the first person is empowered to act in the name of the partners as a whole, but participates alone and in his or her own name in relations with third parties. A natural person who has concluded with another natural person a joint activity agreement, when performing acts that form the economic activity pursued by that partnership, carries out that activity independently.

Concept of ‘taxable person’.

Proceedings concerning an order issued to X by the tax authority requiring payment of value added tax together with default interest and of a fine following undeclared property transactions.

С-528/19 of 16 September 2020

Value added tax — Origin and scope of the right to deduct — Entry in the accounts of the costs incurred by the works as part of the taxable person’s general costs — Determination of the existence of a direct and immediate link with the economic activity of the taxable person — Supply to be treated as a supply made for consideration

Key aspects of the decision in the economic range:

Deduction of input tax. Extension of a road belonging to a municipality. Works for the extension of the municipal road, carried out free of charge by the taxable person. A supply of goods for consideration when the authorisation to operate a quarry is the consideration for the supply of a road.

Proceedings concerning a refusal to deduct input value added tax paid for carrying out works for the extension of a road belonging to a municipality.

С-674/19 of 16 September 2020

Structure and rates of excise duty applied to manufactured tobacco — Concept of ‘Products consisting in whole or in part of substances other than tobacco’, ‘Smoking tobacco’, and ‘Water-pipe tobacco’

Key aspects of the decision in the economic range:

General principles for the harmonisation of the structure and rates of the excise duty to which the Member States subject manufactured tobacco. Components of water-pipe tobacco. Smoking tobacco subject to excise duty on tobacco. “Water-pipe tobacco” to be regarded as “consisting in whole or in part of substances other than tobacco”.

Concept of ‘Products consisting in whole or in part of substances other than tobacco’, ‘Smoking tobacco’, and ‘Water-pipe tobacco’

Proceedings concerning the decision of Customs Department to issue S an additional assessment in respect of excise duty and in respect of import value added tax on water-pipe tobacco imported and released for consumption and to impose on it a fine.

С-791/18 of 17 September 2020

Value added tax — Immovable property acquired as capital goods — Deduction of input tax paid — Adjustment of the initial deduction — Single adjustment of that deduction in full after the goods in question are first used — Principle of fiscal neutrality

Key aspects of the decision in the economic range:

A national adjustment regime for capital goods which provides for an adjustment spread over a number of years, whereby in the year the goods [are first used] – which year is moreover the first adjustment year – the total amount of the initial deduction for [those capital goods] is adjusted (revised) in a single step, if, [when first used], it [becomes apparent] that that initial deduction deviates from the deduction which the taxable person is entitled to apply on the basis of the actual use of the capital good[s]. National rules which are consistent with the principle of fiscal neutrality in so far as that principle requires that undue deductions be adjusted in any case.

Proceedings concerning the adjustment in a single step on account of the use of part of an apartment complex for an exempt activity of the entire deduction of the turnover tax (VAT) initially paid in respect of the construction of that complex.

С-777/18 of 23 September 2020

Freedom to provide services — Social security — Healthcare that may be subject to prior authorisation — Insured person prevented from applying for prior authorisation — Assumption of costs of scheduled treatment incurred by the insured person — Cross-border healthcare — Processing of applications for cross-border healthcare — Factors to be taken into account — Concept of „scheduled treatment“

Key aspects of the decision in the economic range:

National legislation, which, as regards the reimbursement of the costs of cross-border healthcare, precludes the healthcare provided in another Member State without prior authorisation from being subsequently authorised. national legislation that makes the reimbursement of costs of healthcare received by an insured person in another Member State subject, in all cases, to prior authorisation, even when there is, while waiting for such authorisation to be granted, a genuine risk that that person’s state of health will irreversibly deteriorate. Conditions which render mandatory the grant by the competent institution of the prior authorisation. Presence of a restriction on the freedom to provide services. Justification for the system of prior authorisation. Proportionality of the system of prior authorisation. A reasonable procedural period taking into account specific medical conditions, urgency and individual circumstances.

Concept of „scheduled treatment“.

Proceedings concerning a refusal of reimbursement for the costs of cross-border healthcare.

 

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