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Tax & Financial Standards New Judgments of the ECJ For October 2021


Tax & Financial Standards New Judgments of the ECJ For October 2021

Tax & Financial Standards New Judgments of the ECJ For October 2021

Tax&Financial Standards (T&FSt) – International Financial Reporting Standards, Date or entry into force: 1.01.2021 (consolidated version), in 4 languages - Bulgarian, English, German and French

New judgments

С-538/19 of 6 October 2021

Health Insurance - Medical treatment carried out in a Member State other than that of the insured person - Preliminary permission - Requirement to submit a report prepared by a doctor from the national public health insurance scheme prescribing treatment - Second medical opinion received in a Member State other than that of the insured person in which alternative treatment is prescribed which has the advantage of not causing invalidity - Reimbursement of all medical expenses for this alternative treatment

Key aspects of the decision in the economic range:

An insured person who has received treatment in a Member State other than that in which he is resident, which is among the benefits provided for in the legislation of the Member State of residence, shall be entitled to reimbursement of all medical expenses under Regulation № 883 / 2004, where the person has not been able to obtain authorization from the competent institution because, although the diagnosis and the need for urgent treatment have been confirmed by a doctor from the health insurance scheme of the Member State of residence, that doctor has prescribed treatment other than what the person has decided to undergo according to a second medical opinion, given that the second treatment, unlike the first, does not lead to disability.

Dispute between Z's heirs and the Health Insurance Fund, Romania, over the latter's refusal to reimburse them for all costs incurred for Z's medical treatment in Austria.

С-544/19 of 6 October 2021

Free movement of capital — National legislation Национална правна уредба, which requires payments over a certain amount to be made only by transfer or deposit to a payment account — Fight against tax fraud and tax evasion — Proportionality — Administrative penalties — Principles of Принципи на legality and proportionality и пропорционалност of crime and punishment — Concept of „restriction“

Key aspects of the decision in the economic range:

Country, which is not member of the Eurozone. National legislation, which prohibits cash payments on the territory of the country when they are equal to or exceeds the specified threshold, and it requires the use of a transfer or deposit to a payment account. Distribution of dividends by a company in favor of a shareholder or partner in the form of a cash payment exceeding the threshold set by national legislation. Imposition of an administrative penalty.

Concept of „restriction“.

Proceedings between company E and tax authority concerningСпор между дружество Е и данъчен орган относно the legality of the administrative pecuniary sanction imposed on that company for infringement of the national legislation about restricting cash payments.

С-581/20 of 6 October 2021

Civil and commercial matters — Provisional, including protective, measures — Claim, based on a contract for the construction of a public expressway concluded between a state institution and two private companies — Apply for admission of precautionary measures for the penalties and guarantees under this contract — Decision on interim proceedings, made by the court having jurisdiction as to the substance of the matter

Key aspects of the decision in the economic range:

Jurisdiction of the Court, seised of an application for provisional, including protective, measures, if the court of another Member State which has jurisdiction in the substance of the case has already ruled on the application on the same subject. A relationship between two courts of different Member States – the court seised of the proceedings as regards the substance and the court seised solely in relation to provisional, including protective, relief – in cross-border situations.

Proceedings between The Polish contracting authority and two construction companies under Italian law, concerning a contract for construction of a section of expressway in Poland.

С-717/19 of 6 October 2021

Value added tax — Reduction of the tax base in case of reduction of the price after the delivery — Contributions transferred from a pharmaceutical company to the state health insurance fund — Administrative formalities provided by national law for the exercise the right of reduction

Key aspects of the decision in the economic range:

National legislation according to which a pharmaceutical company may not deduct from its VAT tax base the part of its turnover from the sale of medicinal products subsidized by the state health insurance fund, which it transfers to that fund by virtue of a contract concluded between the fund and that company, due to the fact that the transferred amounts were not determined on the basis of conditions previously approved by this company. National legislation, according to which the subsequent reduction of the VAT tax base requires the taxable person entitled to a refund to have an invoice in his name.

Proceedings between a company B and Tax and Customs Administration, Hungary, concerning the decision by which the latter refused to recognize B's right to deduct from its tax base the contributions that this company has transferred to the state health insurance fund.

Joined Cases С-45/20, and C-46/20 of 14 October 2021

Value added tax - Deduction of input tax – Immovable property - Allocation decision giving rise to a right of deduction – Communication of the allocation decision – Limitation period for exercising a right to deduct – Presumption of allocation to the private assets of the taxable person where the allocation decision is not communicated

Key aspects of the decision in the economic range:

Mixed-use assets. Allocation to assets of a business. Compatibility with EU law of a Member State time limit for allocation and presumption of allocation to private assets absent evidence to the contrary. Loss of the right to deduct input tax. Consequences flowing from the allocation decision for the right to deduct input tax.

Two sets of proceedings concerning the rejection by those tax authorities of deductions of value added tax on account of the failure to take an allocation decision identifiable by the tax authorities before the statutory deadline for submitting the annual turnover-tax return expired.

С-360/20 of 14 October 2021

Protection of the financial interests of the European Union - Fight against fraud and other illegal activities - Unlawful conduct of the sustainability phase of a project - Concept of "fraud detrimental to the financial interests" of the Union, referred to in Article 1 (1) (a) of the PIF Convention

Key aspects of the decision in the economic range:

Use of false or inaccurate statements submitted after the end of the project implementation phase for which funding has been received, in order to give the impression that the obligations foreseen for the project sustainability phase are being fulfilled. The principle of the primacy of European Union law obliges a national court to interpret the provisions of national law in accordance with the obligations arising from Article 325 (1) and (2) TFEU.

Dispute in the framework of an appeal procedure against a decree by which the prosecutor's office terminates the initiated criminal proceedings regarding crimes in connection with misuse of funds from the general budget of the European Union.

С-80/20 of 21 October 2021

Right of VAT deduction — Refund of VAT to taxable persons established in a Member State other than the Member State of refund — Possession of an invoice — Rejection of the refund application — Reversing the invoice from the supplier — Issuing a new invoice — New refund application — Rejection

Key aspects of the decision in the economic range:

Origin of right of deduction. Time of origin of right of deduction. Possession of an invoice as a substantive requirement. Differentiation from the formal requirements for the right of deduction. Enforceability of an uncontested refusal decision. Legal consequences of cancellation (annulment) and reissuing of invoices.

Proceedings, concerning the decision rejecting an application for a refund of value added tax (VAT) made by a company in 2015 in connection with the acquisition of goods made in 2012.

С-373/19 of 21 October 2021

Value added tax — Exemptions for certain activities in the public interest — Provision of children’s or young people’s education, school or university education — Basic swimming tuition — Concept of „school or university education“

Key aspects of the decision in the economic range:

VAT exemption. Cover of the concept of ‘school or university education’, within the meaning of Directive 2006/112. Swimming tuition provided by a swimming school. An organisation having objects similar to those of bodies governed by public law that have as their aim the provision of children’s or young people’s education.

Proceedings concerning the refusal by Tax Office to exempt from value added tax (VAT) swimming tuition services.

С-396/20 of 21 October 2021

Rules for the refund of VAT to taxable persons not established in the Member State of refund — Request for additional information from the Member State of refund — Data that may be subject of request for additional information — Inconformity between the amount of VAT indicated in the refund application, and the amount in the presented invoices — Principle of good administration — Limitation period — Consequences in connection with the correction of the error made by the taxable person

Key aspects of the decision in the economic range:

Value added tax. Tax administration of the Member State of refund, which refunds VAT only up to the amount indicated last, without first to invite the taxable person to adjust his application, if it is certain, possibly in the light of the additional information provided by the taxable person. that the amount of VAT actually paid on supplies received, which is indicated in the invoice attached to the refund application, is higher than that indicated in that application.

Proceedings between a company and tax and customs administration concerning the latter's decision to grant only a partial application for a refund of value added tax.

Joined Cases С-845/19, and C-863/19 of 21 October 2021

Charter of Fundamental Rights of the European Union - Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Confiscation of illegally obtained assets – Economic benefit derived from a criminal offence which has not been the subject of a conviction – Extended confiscation – Confiscation from a third party – Confiscation of money allegedly belonging to a third party – Third party having no right to appear as a party in the confiscation proceedings - Concept of ‘property’ and ‘criminal offence’ 

Key aspects of the decision in the economic range:

The possession of narcotics for the purposes of their distribution comes within the scope of Directive 2014/42, even though all the elements inherent in the commission of that offence are confined within a single Member State. Confiscation of property constituting an ‘economic advantage’ derived from the criminal offence in respect of which the perpetrator of that offence has been convicted. Confiscation of property belonging to that perpetrator for which there is evidence that it constitutes an economic benefit derived from other criminal conduct. Right to an effective remedy of third parties who claim a right of ownership of property which has been confiscated.

Concept of ‘property’ and ‘criminal offence’.

The requests have been made in the context of criminal proceedings against ‘the persons concerned’ concerning applications for the confiscation, following the conviction of the persons concerned of possession of narcotics for the purposes of their distribution, of sums of money which those persons claim belong to third parties.






С-186/20 of 30 September 2021

Administrative cooperation and combating fraud in the field of value added tax - Exchange of information - Tax audit – Time limits – Suspension of the tax audit in case of exchange of information – Non-compliance with the time limits laid down for providing information

Key aspects of the decision in the economic range:

Time limits, the non-compliance with which is liable to affect the lawfulness of the suspension of a tax audit provided for by the law of the requesting Member State pending the communication, by the requested Member State, of the information requested under the administrative cooperation mechanism established by that regulation.

Proceedings concerning a tax audit following a claim for deduction of value added tax in respect of supplies of goods.

С-296/20 of 30 September 2021

Jurisdiction, recognition and enforcement of judgments - Civil and commercial matters – Lugano II Convention - Jurisdiction over consumer contracts – Transfer of the consumer’s domicile to another State bound by the convention

Key aspects of the decision in the economic range:

Judicial cooperation in civil matters. Consumer who transfers his domicile, after the contract has been concluded, to another State bound by the Convention. Pursuit of commercial or professional activities in the State bound by the Convention and in which the consumer is domiciled. Which court has jurisdiction to settle a dispute in which a banking institution is seeking to recover from a customer payment of the debit balance on his current account.

Proceedings concerning the repayment of a debt resulting from an overdraft on a current account.

С-299/20 of 30 September 2021

Value added tax — Margin taxation scheme — Supply of buildings and building land purchased for resale — Taxable person for whom the VAT on the purchase of buildings was not deductible — Resale subject to VAT — Concepts of ‘building land’ and ‘immovable property’

Key aspects of the decision in the economic range:

A refund the value added tax, paid in respect of sales of building land to private individuals. Provided as an exception мargin taxation scheme under the VAT Directive, which applies to land transactions, if the taxable person was not entitled to deduct upon its acquisition and if subsequently, after having parceled it out and improved it, resold it as building land.

Concepts of ‘building land’ and ‘immovable property’.

Proceedings concerning the tax authorities’ refusal to refund the value added tax (VAT) paid by a company in respect of sales of building land to private individuals.

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