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02.08.2023

Tax & Financial Standards New Judgments of the ECJ For July 2023

Tax & Financial Standards New Judgments of the ECJ For July 2023
Tax&Financial Standards (T&FSt) – International Financial Reporting Standards, Date or entry into force: 1.01.2023 (consolidated version), in 4 languages - Bulgarian, English, German and French

New judgments
С-252/21 of 4 July 2023

Protection of natural persons with regard to the processing of personal data — Social networks — Abuse of a dominant position by the operator of such a network — Abuse which entails the processing of the personal data of the users of that network as provided for in its general terms of use — Powers of a competition authority of a Member State to find that processing is not consistent with that regulation — Reconciliation with the powers of the national data protection supervisory authorities — Principle of sincere cooperation — Processing of special categories of personal data
Key aspects of the decision in the economic range:
General Data Protection Regulation. Consent given to a dominant undertaking responsible for processing. Lawfulness of processing. Processing necessary for the performance of a contract to which the data subject is party or for the purposes of the legitimate interests pursued by the controller or by a third party. Processing necessary for compliance with a legal obligation to which the controller is subject, the protection of the vital interests of the data subject or of another natural person or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Special categories of personal data. Personal data which are manifestly made public by the data subject. Adoption of measures under competition law by an authority located in a Member State other than that of the lead authority for the supervision of data protection.
Proceedings between Meta and the Federal Cartel Office, Germany, concerning the decision by which the latter prohibited those companies from processing certain personal data as provided for in the general terms of use of the social network Facebook.

С-593/22 of 6 July 2023

Consumer protection – Unfair terms in consumer contracts – Scope – Exclusion of contractual terms reflecting mandatory statutory or regulatory provisions – Credit agreement denominated in a foreign currency – Terms relating to the exchange rate – Presumption of knowledge of the law - Concept of "mandatory statutory provisions".
Key aspects of the decision in the economic range:
It is not necessary for the term included in a loan agreement concluded between a consumer and a seller or supplier to quote the corresponding mandatory statutory or regulatory provision of national law verbatim or to refer expressly thereto, but it is sufficient that it is substantively equivalent to that mandatory provision. Circumstance that the consumer has no knowledge of the fact that the term included in a loan agreement reflects a mandatory statutory or regulatory provision of national law.
Concept of "mandatory statutory provisions".
Proceedings regarding a finding of unfairness in respect of a contractual term.

С-180/22 of 13 July 2023

Common system of value added tax – Special arrangements for works of art – Margin scheme – Taxable dealers – Supply of works of art by creators or their successors in title – Intra-Community transactions – Right to deduct input tax - Concepts of ‘selling price’ and ‘purchase price’
Key aspects of the decision in the economic range:
Double taxation of works of art supplied to taxable dealers in the context of exempt intra-Community supplies. The VAT paid by a taxable dealer in respect of the intra-Community acquisition of a work of art, the subsequent supply of which is subject to the margin scheme under Article 316(1) of that directive, forms part of the taxable amount of that supply..
Proceedings concerning the calculation of the taxable amount of value added tax where the margin scheme is applied to the supplies of works of art that were previously acquired by the person concerned in the context of intra-Community supplies.

С-313/22 of 13 July 2023

Structural Funds — Co-financing — Durability of investment operations — ‘Substantial modification’ of a co-financed investment operation — Recovery of aid in the event of transfer of the establishment which is the subject of that operation — Effect of the specific circumstances surrounding that transfer
Key aspects of the decision in the economic range:
European Regional Development Fund (ERDF). Transfer of an establishment which is the subject of an investment operation co-financed by the European Union Structural Funds, capable of constituting a ‘substantial modification’ of that operation. Financial corrections where the transfer constitutes a substantial modification of that operation.
Proceedings concerning the partial recovery of financial aid granted for the modernisation of a hotel and the creation of three new jobs.

С-344/22 of 13 July 2023

Common system of value added tax (VAT) — Bodies governed by public law — Municipality collecting a spa tax for the provision of spa facilities accessible to everyone — Concept of „supply of services for consideration“
Key aspects of the decision in the economic range:
A supply of services carried out ‘for consideration’, within the meaning of the VAT Directive 2006/112. Provision of spa facilities by a municipality. on the basis of municipal by-laws, that municipality imposes a spa tax of a certain amount per day’s stay on visitors staying in the municipality, when the obligation to pay that tax is linked not to the use of those facilities.
Proceedings concerning the right of a municipality to deduct input value added tax.

С-615/21 of 13 July 2023

Value added tax – National legislation providing for the possibility of suspending, without any temporal limit, the limitation period for action by the tax authorities in the event of court proceedings – Repeated tax procedures – Principles of legal certainty and effectiveness of EU law
Key aspects of the decision in the economic range:
National taxation procedure. National legislation providing for the suspension of the limitation period relating to taxation matters, in the context of judicial review, without any temporal limit, regardless of the number of repeat tax procedures. The principles of legal certainty and effectiveness of EU law must be interpreted as not precluding legislation of a Member State or the related administrative practice, under which, in relation to VAT, the limitation period in respect of the right of the tax authorities to assess that tax is suspended for the whole duration of judicial review.
Proceedings concerning that company’s right to deduct from the amount of value added tax for which it is liable the amount of VAT due in respect of various acquisitions of goods made in June 2010 and between November 2010 and September 2011.

June
С-108/22 of 29 June 2023

Common system of value added tax (VAT) – Special scheme for travel agents – Consolidator of accommodation services which purchases such services on its own behalf and resells them to other professionals without ancillary services
Key aspects of the decision in the economic range:
Service, provided by a taxable person, which consists in purchasing accommodation services from other taxable persons and reselling them to other economic operators, is covered by the special VAT scheme applicable to travel agents, even though those services are not accompanied by ancillary services.
Proceedings between the tax authority’ and C. in liquidation, concerning the application of the special value added tax (VAT) scheme for travel agents to the resale by C., in its own name, of accommodation services to other taxable persons without ancillary services.

С-211/22 of 29 June 2023

Competition — Vertical agreements — Minimum resale prices fixed by a supplier to its distributors — Proof of a concurrence of wills between the supplier and its distributors — Practice covering almost the entire territory of a Member State — Effect on trade between Member States — Concepts of „restriction of competition by object“, „hardcore restriction“ and „agreement“
Key aspects of the decision in the economic range:
A vertical agreement fixing minimum resale prices, that entails a ‘restriction of competition by object’ may only be made after having determined that that agreement presents a sufficient degree of harm to competition. THere is an ‘agreement’, where a supplier imposes on its distributors minimum resale prices of the products that it markets, if the imposition of those prices by the supplier and compliance with them by the distributors reflects the expression of the concurrence of wills of those parties.
Concepts of „restriction of competition by object“, „hardcore restriction“ and „agreement“.
Proceedings, concerning the lawfulness of decision finding that S, A and B had infringed competition rules and therefore imposing fines on them.

С-232/22 of 29 June 2023

Value added tax (VAT) — Provision of services — Point of reference for tax purposes — Suitable structure in terms of human and technical resources — Ability to receive and use the services for the fixed establishment’s own needs — Provision of tolling services and ancillary services — Exclusive contractual undertaking between a company providing services in a Member State and the company receiving those services established in a third State — Legally independent companies — Concept of ‘fixed establishment’
Key aspects of the decision in the economic range:
Place of supply of services. A taxable person receiving services, whose business is established outside the European Union, does not have a fixed establishment in the Member State in which the provider of the services concerned – which is legally independent from that recipient – is established, where that recipient does not have a suitable structure in terms of human and technical resources capable of constituting that fixed establishment, even where the taxable person providing the services provides to that taxable person receiving services, pursuant to an exclusive contractual undertaking, tolling services and a series of ancillary or additional services, contributing to the business of that taxable person receiving services in that Member State.
Concept of ‘fixed establishment’.
Proceedings, concerning a decision of the tax authority requiring a company to pay additional value added tax (VAT) together with default interest and a fine.