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

26.11.2020

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

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

New judgments

С-287/19 of 11 November 2020

Payment services in the internal market - Personalised multifunctional bank cards – Near-field communication (NFC) - Change in the conditions of a framework contract – Tacit consent – Rights and obligations related to payment services – Derogation for low-value payment instruments – Payment instrument that does not allow its blocking – Payment instrument used anonymously – Limitation of the temporal effects of the judgment - Concept of ‘payment instrument’

Key aspects of the decision in the economic range:

Consumer protection. Validity of terms including tacit consent and transferring to the payment service user the risk of liability for unauthorised payments. Contactless low-value payment using the NFC function of a personalised multifunctional bank card which is to be regarded as anonymous use of the payment instrument. A payment instrument that cannot be blocked or it is not possible to prevent its further use.

Concept of ‘payment instrument’.

Proceedings concerning the validity of contractual terms relating to the use of personalised multifunctional bank cards that are equipped, in particular, with near-field communication (NFC) functionality, commonly known as the ‘contactless payment’ function.

С-300/19 of 11 November 2020

Social politic — Collective redundancies — Methods for calculating the number of redundancies — Reference period to take into account — Concept of „Collective redundancy“

Key aspects of the decision in the economic range:

Protection of workers in the event of collective redundancies. Deciding whether individually controversial redundancy is part of a collective redundancy. Reference period to calculate the number of redundancies. Concept of „Collective redundancy“.

Proceedings concerning the legality of individual redundancy.

С-42/19 of 12 November 2020

Right to deduct input VAT paid by a mixed holding company in respect of consultancy services relating to a market study with a view to the possible acquisition of shareholdings in other companiesAbandonment of proposed acquisition — Input VAT paid on a bank commission for organising and putting together a bond loan, intended to provide subsidiaries with the necessary means to make investments – Investments not made — Concept of ‘taxable person’

Key aspects of the decision in the economic range:

Right to deduct of holding companies where a holding company merely manages shares in certain companies, but supplies taxable services to other companies owned by it (‘mixed holding company’). Expenditure for consultancy services and for the issue of corporate bonds with a view to acquiring another company. Change in planned output transactions. Deduction of tax borne in respect of the payment to a bank of a commission for organising and putting together a bond loan, allegedly taken out with a view to integrating the financial structure of its affiliated companies, and which, since those investments failed to materialise, was ultimately transferred to the parent company of the group.

Proceedings concerning the deductibility of input value added tax paid in respect of expenditure relating, first, to consultancy services connected with a market study commissioned with a view to possible acquisitions of shareholdings in other companies and, secondly, to the payment to bank of a commission for organising and putting together a bond loan, where neither the acquisition nor the investments, in view of which the loan was taken out, materialised.

С-427/19 of 12 November 2020

Law applicable to winding-up proceedings with regard to insurance undertakings - Withdrawal of the authorisation of an insurance company - Appointment of a provisional liquidator - Absence of a court decision to open winding-up proceedings in the home Member State - Stay of court proceedings with regard to the insurance undertaking concerned in Member States other than its home Member State – Concept of ‘decision to open winding-up proceedings with regard to an insurance undertaking’

Key aspects of the decision in the economic range:

Decision to open winding-up proceedings with regard to an insurance undertaking. Competence to identify the existence of such a decision. Decision of an authority in the undertaking’s home Member State to withdraw the authorisation of that undertaking to operate as an insurance undertaking and to appoint a provisional liquidator for it, without a court decision to open winding-up proceedings being formally adopted. The law of the home Member State of an insurance undertaking, which provides that all court proceedings against that insurance undertaking are to be stayed in the event of the withdrawal of its authorisation and the appointment of a provisional liquidator, must be applied by the courts of the other Member States.

Concept of ‘decision to open winding-up proceedings with regard to an insurance undertaking’.

Proceedings between insurance companies concerning the payment of an insurance claim.

С-734/19 of 12 November 2020

Common system of value added tax- Deduction of input tax - Abandonment of the originally planned activity - Deduction of input tax - Real estate activities

Key aspects of the decision in the economic range:

The right to deduct VAT paid on supplies received for goods - in this case real estate - and for services acquired in the course of taxable transactions, is retained when the originally envisaged investment projects have been abandoned, or in which case this VAT must be adjusted. Where there is no contract for a contract without authorization, the mechanism relating to the figure of a commission agent shall apply where the taxable person constructs a building in accordance with the needs and requirements of another person to rent the building.

Dispute concerning the deduction of value added tax paid on supplies received from expenditure relating to immovable property projects which were ultimately abandoned.

С-77/19 of 18 November 2020

Value added tax - Exemption of supplies of services made by independent groups of persons to their members – Applicability to VAT groups - Territorial scope — Group established in a third — Relationship with group taxation

Key aspects of the decision in the economic range:

System of value added tax. Tax exemption. Supply of services by an independent cost sharing group to its members. Supplies of services made by an independent group of persons to a VAT group where not all the members of the VAT group are members of that independent group of persons.

Proceedings between K’) and the C(‘HMRC’) concerning the refusal by the latter to grant KIC the exemption from value added tax laid down for costs-sharing groups (CSGs) (‘independent groups of persons’).

С-299/19 of 18 November 2020

Combating late payments in commercial transactions — Public works contract — Concept of ‘commercial transactions’, of ‘delivery of goods’ and ‘provision of services’

Key aspects of the decision in the economic range:

Late payment with regard to public works contracts. Public contracts having as their object either the execution, or both the design and execution, of works. Mechanisms for combating late payment.

Concept of ‘commercial transactions’, of ‘delivery of goods’ and ‘provision of services’.

Proceedings concerning the payment of default interest on the amount due for the performance of a contract having as its object the realisation of an operating block for a hospital.

С-519/19 of 18 November 2020

Judicial cooperation in civil and commercial matters — Jurisdiction clause agreed to by the passenger as a consumer — Claim made by the passenger against the airline — Assignment of that claim to a collection agency — Enforceability of the jurisdiction clause by the airline against the assignee company of that passenger’s claim

Key aspects of the decision in the economic range:

Contract of transport by air. A jurisdiction clause incorporated in a contract of carriage concluded between a passenger and airline cannot be enforced by the airline against a collection agency to which the passenger has assigned the claim. A clause, incorporated, without having been subject to an individual negotiation, in a contract concluded between a consumer, that is to say, the air passenger, and a seller or supplier, that is to say, the airline, and which confers exclusive jurisdiction on the courts which have jurisdiction over the territory in which that airline is based, must be considered as being unfair.

Proceedings concerning the payment of a sum as compensation for the cancellation of a flight.

С-775/19 of 19 November 2020

Community Customs Code - Customs valuation - Payments which the purchaser of a product makes in addition to the purchase price, depending on his or her sales revenues - Transaction value of imported goods - Payment in return for the granting of an exclusive distribution right - Concept of ‘condition of sale’

Key aspects of the decision in the economic range:

Payment made for a limited period of time by the buyer of imported goods to the seller of those goods, in return for the granting by the seller of an exclusive right to distribute those goods in a given territory, calculated on the basis of the turnover achieved in that territory, must be included in the customs value of those goods.

Concept of ‘condition of sale’.

Proceedings concerning the taking into account of a payment in return for the granting of an exclusive distribution right for the customs valuation of goods imported from a third country with a view to their release for free circulation within the European Union.

 

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