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01.04.2022

Tax & Financial Standards New Judgments of the ECJ For March 2022

Tax & Financial Standards New Judgments of the ECJ For March 2022

Tax&Financial Standards (T&FSt) – International Financial Reporting Standards, Date or entry into force: 1.01.2022 (consolidated version), in 4 languages - Bulgarian, English, German and French

New judgments

Principles of EU law – Direct effect – Obligations on a Member State as a result of a preliminary ruling – Interpretation of a provision of EU law given by the Court in a preliminary ruling – Obligation to give full effect to EU law – Obligation for a national court to disapply national legislation which contravenes EU law as interpreted by the Court – Administrative decision which became final in the absence of a challenge before the courts – Principles of equivalence and effectiveness

Key aspects of the decision in the economic range:

Non-application of the national law to cases which are similar, but not identical, to those at issue in that preliminary ruling. A national court hearing an action against a decision rejecting a request for reinstatement of rights of usufruct which have been extinguished by operation of law and deleted from the land register pursuant to national legislation which is incompatible with Article 63 TFEU, as interpreted by the Court in a preliminary ruling, is required:

– to disapply that legislation; and

– in the absence of objective and legitimate obstacles, in particular those of a legal nature, to order the competent administrative authority to reinstate the rights of usufruct.

Proceedings concerning the legality of a decision rejecting a request for the reinstatement in the land register of rights of usufruct which were extinguished by operation of law and deleted from that register.

Judicial cooperation in civil matters — Jurisdiction over cases of tort or quasi-tort — A claim brought by a trustee in bankruptcy against a third party in the interest of creditors — Place of occurrence of the harmful event — Application for intervention by a defender of collective interests

Key aspects of the decision in the economic range:

Jurisdiction in matters relating to non-contractual liability. Collective action for damages in cases of tort, brought by the trustee in bankruptcy in the framework of its statutory function for liquidation of the insolvency estate, in favor of, but not on behalf of all creditors, who will subsequently have to take action for their own compensation.

Proceedings between Z, successor of J, trustee in bankruptcy of B NL, and B AG concerning the damaging actions which the latter company committed in breach of its duty of care to the detriment of the creditors of the first company.

Market abuse - Single Market for financial services - Information relating to the forthcoming publication of a press article reporting a market rumour about an issuer of financial instruments – Unlawfulness of the disclosure of inside information - Disclosure of inside information for the purpose of journalism – Freedom of the press and freedom of expression – Disclosure by a journalist, to a usual source, of information relating to the forthcoming publication of a press article

Key aspects of the decision in the economic range:

Insider dealing and market manipulation. Functionality and integrity of capital markets. Inside information and insider dealing. Requirements of precision and ability to influence prices. Market rumour. Disclosure of inside information in the normal exercise of a profession. A disclosure of inside information by a journalist is lawful where it must be regarded as being necessary for the exercise of his or her profession and as complying with the principle of proportionality.

Concepts of „inside information“, information ‘of a precise nature’ and ‘for the purpose of journalism’.

Proceedings between Mr A and the AMF (Financial Markets Authority) concerning the latter’s decision to impose a financial penalty on Mr A for disclosing information relating to the forthcoming publication of press articles reporting market rumours about the launch of takeover bids on companies listed on stock exchanges.

Social policy — Work through temporary employment agencies — Occupying a permanent position — Consecutive appointments — Derogation by the social partners of the maximum duration set by the national legislator — Concept of „temporarily”

Key aspects of the decision in the economic range:

Transitional provision precluding reliance, prior to a specified date, on periods of assignment of a temporary agency worker to a user undertaking. Introduction under the law of a Member State of a maximum assignment period for temporary agency workers to user undertakings. Right of a temporary agency worker to a permanent contract of employment with a user undertaking in the event of misuse of temporary agency work.

Concept of „temporarily”

Proceedings between N and D in connection with N's request to establish that he had an employment relationship with company D, since, due to the length of his employment with that company through a temporary employment agency, he could not be classified as 'temporary'.

Competition – Tariff system adopted by a universal service provider – Fine imposed by a national postal regulator – Fine imposed by a national competition authority – Non bis in idem principle – Existence of the same offence – Limitations to the non bis in idem principle – Duplication of proceedings and penalties – Conditions

Key aspects of the decision in the economic range:

Charter of Fundamental Rights of the European Union. Legal person from being fined for an infringement of EU competition law where, on the same facts, that person has already been the subject of a final decision following proceedings relating to an infringement of sectoral rules concerning the liberalisation of the relevant market.

Limitations to the non bis in idem principle.

Proceedings between bpost and the Competition Authority, concerning the lawfulness of a decision by which bpost was fined for abuse of a dominant position.

Competition — Cartel prosecuted by two national competition authorities — Principle ne bis in idem — Simultaneous application of EU and national competition law — Territorial effects of a decision of a national competition authority — Leniency programme

Key aspects of the decision in the economic range:

Charter of Fundamental Rights of the European Union. An undertaking, which has proceedings brought against it by the competition authority of a Member State and may be fined on the basis of conduct which has had an anticompetitive object even though that conduct has already been referred to by a competition authority of another Member State in a final decision adopted by that authority in respect of that undertaking. Limitations to the non bis in idem principle.

Proceedings between the B, Federal Competition Authority, Austria, of the one part, and N, S and A, of the other, concerning the participation of those undertakings in a practice contrary to Article 101 TFEU and the corresponding provisions of Austrian competition law.

Taxable person — Flat-rate scheme for farmers — Spouses engaged in an agricultural activity using property forming part of the marital community of property — Choice on the part of one of the spouses to give up flat-rate farmer status and to bring her activity under the normal VAT arrangements — Loss of flat-rate farmer status for the other spouse

Key aspects of the decision in the economic range:

Possibility spouses carrying out an agricultural activity in the same holding, using property forming part of the marital community of property, from being regarded as separate taxable persons for value added tax (VAT) purposes where each of those spouses carries out an economic activity independently. circumstances in which spouses carry out that agricultural activity under the flat-rate scheme for farmers, the choice of one spouse to place her activity under the normal VAT arrangements from resulting in the other spouse losing the status of flat-rate farmer.

Proceedings concerning the payment of value added tax.

Excise taxes - Movement of goods under the excise duty suspension arrangement - Release for consumption - Forgery of the accompanying administrative document - Violation or irregularity committed during the movement of excise goods under the excise duty suspension arrangement - Illegal withdrawal of goods from the deferred payment regime - Recipient who does not know about the movement - Third party fraud - Mandatory security in connection with traffic

Key aspects of the decision in the economic range:

General regime of excise duty. The dispatch of excisable goods by a licensed warehouse keeper together with an accompanying document and a compulsory security shall constitute movement of goods under suspension of excise duty, notwithstanding the fact that due to fraudulent acts of third parties the consignee specified in the accompanying document and the security document does not know that these goods were sent to him. Circumstance that the compulsory security document provided by the licensed warehouse keeper for the purpose of dispatch indicates the name of the authorized consignee but not his status as a registered trader.

Dispute concerning the collection of excise duty due to violation of the deferred payment regime in the movement of mineral oils.

 

 

February

 

Direct life insurance - Life-linked group insurance contracts, called "unit-linked", which are linked to investment funds - Obligation to provide pre - contractual information - Indication of the nature of the main assets in unit-linked insurance contracts - The terms "insurance contract", "policyholder", "indication of the nature of the underlying assets for unit-linked policies" and "misleading omission"

Key aspects of the decision in the economic range:

Group life assurance contracts linked to investment funds. Scope and content of pre-contractual information disclosure obligations. Guidance on the nature of the underlying assets that must be communicated to the consumer before he can join a unit-linked group insurance contract. Improper performance of the obligation to provide information may result in invalidity or invalidity of a group insurance contract.

The terms "insurance contract", "policyholder", "indication of the nature of the underlying assets for unit-linked policies" and "misleading omission".

Two disputes related to the refund of insurance premiums paid under life insurance group contracts related to units in investment funds.

Free movement of capital — Withholding tax on notional interest on an interest-free loan granted to a resident subsidiary by a non-resident parent company — Payments of interest between associated companies of different Member States — Distribution of profits by a resident subsidiary to its non-resident parent company — Taxation of the gross amount of notional interest — Recovery procedure for the purposes of the deduction of expenses related to the grant of the loan and a possible refund — Balanced allocation of the power to impose taxes between the Member States — Combating of tax avoidance

Key aspects of the decision in the economic range:

Taxation. National legislation which provides for the taxation in the form of a withholding tax of notional interest that a resident subsidiary which has been granted an interest-free loan by its non-resident parent company would have had to pay to the latter had the loan been concluded under market conditions. National legislation which provides for the taxation in the form of a withholding tax of notional interest that a resident subsidiary which has been granted an interest-free loan by its non-resident parent company would have had to pay to the latter had the loan been concluded under market conditions, where that withholding tax applies to the gross amount of that interest, without it being possible to deduct, at that stage, expenses related to that loan since a subsequent application to that effect is necessary for the purpose of recalculating that tax and making a possible refund.

Proceedings concerning the taxation, by means of a withholding tax, of notional interest on an interest-free loan granted to company by its parent company established in another Member State.

Organization of working hours - Reduction of the normal duration of night work compared to the normal duration of work during the day - Public and private sector workers - Equal treatment - The concept of "application of European Union law"

Key aspects of the decision in the economic range:

Social Policy. Legislation stipulating that the normal duration of night work for public sector workers such as police officers and firefighters is shorter than the normal duration of day work provided for them. The normal seven-hour night work period laid down in the legislation of a Member State for private sector workers should not apply to public sector workers.

The concept of "application of European Union law".

Proceedings between V, an employee of the fire service at the General Directorate for Fire Safety and Protection of the Population, and this General Directorate regarding the reporting and payment of his night work hours.

Consumer contracts — Obligation to provide information in respect of distance contracts — Requirement that the necessary information be provided in plain and intelligible language and on a durable medium — Concepts of „consumer“ and „trader“

Key aspects of the decision in the economic range:

Consumer rights.Provision of the information required in the general terms and conditions for the provision of services on the intermediary’s website, which the consumer accepts by ticking the box provided for that purpose, prior to payment for the ticket, is sufficient to ensure that the obligation to provide information is fulfilled.

Concepts of „consumer“ and „trader“.

Proceedings concerning the reimbursement of the sum paid to purchase a ticket for a cultural event which was subsequently cancelled and the associated costs incurred, namely travel and postage costs, as well as compensation for the non-pecuniary damage suffered as a result of that cancellation.

Value added tax - Tax fraud - Collection of evidence - Suspension of the proceedings on an administrative appeal against a revision act denying the right to deduct until the conclusion of criminal proceedings - Procedural autonomy of the Member States - Principle of tax neutrality

Key aspects of the decision in the economic range:

National legislation allowing national tax authorities to suspend an administrative appeal against a review act denying a taxable person the right to deduct value added tax paid on supplies received because of that taxpayer's participation in a tax fraud, for to obtain additional objective data related to this participation.

Dispute regarding the decision to suspend the proceedings on an administrative appeal against a revision act, which denies the right to deduct value added tax, until the conclusion of a criminal case.

VAT taxable supplies — Internal relations within a group — Provision of services related to the repair or replacement of components of covered wind turbines and the preparation of non-conformity reports — Debit notices issued by the supplier without VAT — Deduction (in respect of the same supplies) of VAT from the supplier for supplies of goods and services received by his subcontractors

Key aspects of the decision in the economic range:

Value added tax. Supplies of services for consideration - transactions which fall within the contractual framework defining the service provider, the recipient of those services and the nature of the supplies in question, which are duly accounted for by the taxable person and which have resulted in remuneration from the provider representing the actual equivalent of those services (form of debit notes).

Proceedings concerning value added tax (VAT) on supplies of repair services made during the warranty period for the goods in question to a company established in a third country and indirectly holding all the capital of the appellant in the main proceedings.