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02.06.2022

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

Tax & Financial Standards New Judgments of the ECJ For May 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

Consumer protection — Distance contract between a consumer and a trader — Obligation of the trader to inform the consumer of the existence and the conditions of a manufacturer’s commercial guarantee — Conditions under which such an obligation arises — Content of the information to be provided to the consumer about the manufacturer’s commercial guarantee — Concepts of „commercial guarantee“ and „conditions of the guarantee“

Key aspects of the decision in the economic range:

Information requirement, which does not arise from the mere fact that the manufacturer’s commercial guarantee exists, but only where the consumer has a legitimate interest in obtaining information concerning that guarantee in order to make a decision. Information which must be provided to the consumer with regard to the conditions of the manufacturer’s commercial guarantee, която обхваща всички данни, which includes all details relating to the conditions of application and implementation of such a guarantee.

Concepts of „commercial guarantee“, „distance contract“ and „conditions of the guarantee“.

Proceedings concerning whether or not absoluts is obliged to provide its customers with information on the commercial guarantee offered by third parties in respect of products it offers for sale.

VAT – Rates - Temporary provisions for particular labour-intensive services – Renovation and repairing of private dwellings – Application of a reduced rate of VAT to repair and maintenance services for lifts in residential buildings – Concepts of „renovation“, „repairing“, „private dwellings“ and „renovation and repairing of private dwellings“

Key aspects of the decision in the economic range:

Common system of value added tax. Reduced rate of VAT to services relating to the „renovation and repairing of private dwellings“. Reduction in the VAT rate applied to labour-intensive services, which is the case with lift repair and renovation services.

Concepts of „renovation“, „repairing“, „private dwellings“ and „renovation and repairing of private dwellings“.

Proceedings concerning the rate of value added tax applicable to the lift repair and maintenance services carried out by that company.

Restructuring of credit institutions and investment intermediaries - Impairment of equity instruments - Protection of the rights of shareholders and creditors - Prospectus for publication in case of public offering of securities or in case of admission of securities to trading - Inaccurate information in the prospectus - Action for annulment of the share acquisition agreement brought against the universal successor of the credit institution for which there is a restructuring decision

Key aspects of the decision in the economic range:

Acquisition of shares. Resolution procedure. Incorrect information in the share issue prospectus. Action for a declaration of nullity of a share purchase contract. Application made against the universal successor of the credit institution. As part of a restructuring procedure, the shares in the share capital of a credit institution or investment firm have been fully impaired.

Dispute over civil liability for the information provided in the prospectus issued in accordance with Directive 2003/71 / EC on the prospectus to be published when securities are offered to the public or when securities are admitted to trading.

Fraudulent concealment of tax due — Penalties — National legislation which provides for an administrative penalty and a criminal penalty for the same acts — Limitations to the principle ne bis in idem — Requirement to provide for clear and precise rules — Possibility of taking into account the interpretation of national legislation by national courts — Need to provide for rules ensuring the proportionality of all of the penalties imposed

Key aspects of the decision in the economic range:

Limitation of the duplication of proceedings and penalties of a criminal nature in the event of fraudulent concealment or omissions from a return relating to value added tax (VAT) provided for by national legislation to the most serious cases. Requirements of the ne bis in idem principle. Clarity and foreseeability. Necessity and proportionality. Ensurement, by means of clear and precise rules, that all of the penalties imposed do not exceed the seriousness of the offence identified.

Criminal proceedings brought against B for tax offences, in particular relating to value added tax (VAT).

Competition – Abuse - Impact of a practice on consumer welfare and market structure - Abusive practice with an exclusionary effect - Ability of the practice to produce an exclusionary effect - Use of means other than those characteristic of quality-based competition - Impossibility for an equally effective hypothetical competitor to respond to the practice - Existence of anti-competitive intent - Opening up of the market for the sale of electricity to competition - Transmission of sensitive commercial information within a group of companies in order to maintain a dominant position in a market inherited from a legitimate monopolist - Imputability of the subsidiary’s conduct to the parent company – Concept of „competition“

Key aspects of the decision in the economic range:

In order to establish whether a practice constitutes an abuse of a dominant position, it is sufficient for the competition authority to demonstrate that that practice may affect the structure of effective competition in the relevant market. In order to rule out the possibility that the conduct of a dominant undertaking may be abusive, it must be regarded as insufficient to provide evidence on its part that that conduct did not give rise to specific restrictive effects. The existence of abusive practices by a dominant undertaking with a remedial effect must be assessed on the basis of the ability of that practice to produce anti-competitive effects. A practice may be classified as "abuse" when introduced by a dominant undertaking if it can have a deterrent effect and is based on the use of means other than quality-based competition. When one or more subsidiaries belonging to a business unit abuse a dominant position, the existence of that unit is sufficient to establish that the parent company is also liable for that abuse.

Concept of „competition“.

Dispute over the decision of the national authority responsible for upholding competition and the market, AGCM to impose a fine on companies for abuse of a dominant position pursuant to Article 102 TFEU.

Judicial cooperation in criminal matters - Securing and confiscating proceeds of crime in the European Union - Procedural guarantees - Securing and confiscating property belonging to a third party outside criminal proceedings - National legislation, which, during the j pre-trial phase of the proceedings, does not provide a legal remedy for the protection of third parties and does not allow the possible return of the property before the end of the criminal proceedings

Key aspects of the decision in the economic range:

National legislations, pursuant to which a conscientious third party whose property has been seized as alleged instrumentality or as alleged proceeds of a criminal offence and has been frozen is not entitled to apply to the court during the trial stage of the criminal proceedings for the return of that property. National legislation, which excludes the confiscation of property belonging to a conscientious third party and used as a means of crime, including when that property has been provided to the defendant for permanent use by a third party.

Criminal proceedings in which R and J, in their capacity as third parties outside those proceedings, requested the referring court to return their belongings seized during the pre-trial phase of the same.

Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States - Avoidance of economic double taxation of dividends - System of advance payments and tax credits at the time of redistribution of dividends - Taxation of dividends paid to a parent company - Payment of tax credits to the recipients of dividends

Key aspects of the decision in the economic range:

Withholding tax. National legislation which provides that a parent company is required to make a deduction when redistributing to its shareholders profits paid by its subsidiaries, which is the basis for granting a tax credit when that profit is not subject to the normal rate of corporation tax, provided that the amounts due under this deduction exceed a ceiling of 5%.

Dispute over a complaint for annulment of administrative comments on withholding of capital gains.

Customs Union — Value added tax — Taxpayers — VAT on import — Joint and several liability of the indirect customs representative and the importing company — Customs — The concept of "customs debt"

Key aspects of the decision in the economic range:

Union Customs Code. Indirect customs representative responsible only for the payment of customs duties due on the goods declared by him to the customs authorities, but not for the payment of value added tax on imports of the same goods.

The concept of "customs debt".

Proceedings concerning payment by U.I, as an indirect customs representative, along with customs duties on import operations and value added tax on imports.

Unfair terms in consumer contracts — Payment order and attachment proceedings against third parties — Force of res judicata implicitly covering the validity of the terms of an enforceable instrument — Power of the court hearing the enforcement proceedings to examine of its own motion the potential unfairness of a term

Key aspects of the decision in the economic range:

Mortgage enforcement proceedings in which no objection was lodged by the consumer and the mortgaged property has already been transferred to a third party. Power of the national court to examine the unfairness of contractual terms following an initial review which is not reasoned. Determination of the final point in time after which the unfairness of contractual terms can no longer be raised. Principle of res judicata.

Proceedings concerning enforcement proceedings based on enforceable instruments which have acquired the force of res judicata.

Right to be present at the trial - Tax offences punishable by custodial sentences - Information regarding the holding of the trial - Inability to locate the accused person notwithstanding the reasonable efforts of the competent authorities – Possibility of a trial and a conviction in absentia - Right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case

Key aspects of the decision in the economic range:

Requirements in the event of a conviction in absentia. Right to a new trial. Absconding of the accused person. National legislation excluding the reopening of criminal proceedings when the person convicted in absentia has absconded after learning of the charges brought against him during the investigation phase of the proceedings. Crimes against the customs regime. An accused person may be tried and, as the case may be, convicted in absentia, but must in that case, in principle, be able, after notification of the conviction, to rely directly on the right to secure the reopening of the proceedings or access to an equivalent legal remedy.

Criminal proceedings relating to acts liable to constitute tax offences punishable by custodial sentences.

 

April

 

Exclusion of fiscal provisions – Electronic commerce – Online property rental platform – Exclusion of the field of taxation – Regional legislation concerning a tax on tourist accommodation establishments – Provision requiring intermediaries to provide, on a written request, certain particulars concerning the operation of those establishments to the tax authority with the aim of identifying persons liable for that tax – No discrimination – No restriction – Concept of „fiscal provisions“

Key aspects of the decision in the economic range:

Internal market. Information society services. The tax legislation of a Member State requiring intermediaries, in respect of tourist accommodation establishments that are located in a region of that Member State and for which they act as intermediary or carry on a promotion strategy, to provide the regional tax authorities, on the latter’s written request, with the particulars of the operator and the details of the tourist accommodation establishments, as well as the number of overnight stays and of accommodation units operated during the past year, must be regarded as being indissociable, as regards its nature, from the legislation of which it forms part and, accordingly, falls within the ‘field of taxation’ which is expressly excluded from the scope of Directive 2000/31.

Proceedings brought for annulment of an article of an order on the regional tax on tourist accommodation establishments.

Common agricultural policy - Direct aid schemes - Payments to beneficiaries - Deadline for payment - Tacit refusal of the aid application

Key aspects of the decision in the economic range:

Monitoring of the common agricultural policy. Failure by the paying agency of a Member State to pay the aid requested by the farmer before the expiry of the time limit shall not be considered as tacit refusal, whether or not the farmer concerned has been notified of any additional checks.

Disputes concerning applications for support for the common agricultural policy of the European Union.

Rights to the repayment or to the payment of sums of money levied or refused by a Member State in breach of EU law — Anti-dumping duties, import duties, export refunds and financial penalties — Reimbursement of sums levied by a Member State in breach of EU law — Payment of interest — Limitation on the payment of interest in the event of reimbursement of customs duties — Principle of effectiveness — National measures providing for the payment of interest from the time when proceedings are brought before the courts

Key aspects of the decision in the economic range:

Principles of EU law relating to the rights of persons to obtain the repayment of sums of money the payment of which has been imposed on them by a Member State in breach of EU law and the payment of interest on those sums of money. Right of persons to payment of interest established in the Court’s case-law as a remedy arising under EU law. Period covered by that payment of interest. Claims for the payment of interest on sums unduly levied in breach of EU law.

Three sets of proceedings concerning requests for the repayment of sums of money paid by different companies, on various legal bases, to two principal customs offices and for the payment of the corresponding interest.

Intellectual property rights - Issuing an out-of-court warning to ensure compliance with intellectual property rights - Attorney's fees - National legislation which, under certain conditions, limits the recoverable amount of these costs – Concepts „court costs“ and „other costs“

Key aspects of the decision in the economic range:

Court costs“ and other costs. Attorney's fees for issuing an out-of-court warning. Provision providing for an upper limit on the lawyer's fees to be recovered in the event that the infringement was committed by a natural person outside any commercial or professional activity. Unfair price given the special circumstances of the case. Compensation for damages.

Concepts „court costs“ and „other costs“.

Спор относно подлежащите на възстановяване разходи за адвокат във връзка с предупреждението, което K, преди да предяви съдебен иск, е отправило до F, за да гарантира спазването на правата си.

Value added tax — Exemptions for certain activities in the public interest — Exemptions related to children’s or young people’s education, school or university education — Supply of educational services supplementing the school curriculum — Private law body providing those services for commercial purposes

Key aspects of the decision in the economic range:

Services, closely related to school education, which are exempt from VAT. A private entity which carries out teaching activities in the public interest consisting of, inter alia, the organisation of activities supplementing the school curriculum and which has obtained authorisation from the National Trade Register Office in the form of the attribution of the CAEN code 8559 – ‘Other education n.e.c.’.

Proceedings between H and the tax authorities, regarding the refusal of the tax authorities to exempt from value added tax (VAT) the provision by H of teaching services supplementing the school curriculum.

Common system of value added tax — Sale of a card entitling the cardholder to a number of tourist services for a limited period — Concept of ‘multi-purpose voucher’ and ‘single-purpose voucher’

Key aspects of the decision in the economic range:

Applying VAT to the vouchers. An instrument which gives the bearer thereof the right to benefit from various services at a given place, for a limited period and up to a certain amount. An instrument, which constitutes a ‘voucher’ even if, on account of its the limited validity period, an average consumer cannot take advantage of all the services offered. An instrument, which constitutes a ‘multi-purpose voucher’ since the VAT due on those services is not known at the time of issuance of that instrument.

Proceedings concerning the tax treatment of an instrument sold in the form of a card called ‘citycard’.