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26.09.2024

Tax & Financial Standards New Judgments of the ECJ For September 2024

Tax & Financial Standards New Judgments of the ECJ For September 2024

September

С-83/23 of 5 September 2024
Common system of value added tax – VAT unduly invoiced and paid – Correction of the invoice – Liquidation of the supplier – Refusal of the tax authority to refund the VAT directly to the purchaser – Priority for the right to a VAT refund – Risk of a double refund of the VAT – Risk of loss of tax revenue
Key aspects of the decision in the economic range:
Refund to the supplier of the VAT. The recipient of a service may not request directly from the tax authority of the Member State in whose territory it is established, the refund of the VAT which it paid to the supplier of that service – which invoiced in error the national VAT of that Member State instead of the VAT legally due in another Member State and paid it to the tax authorities of the first Member State – where those tax authorities have already refunded the VAT to the supplier.
Proceedings concerning the right to deduct input value added tax and the equitable refund of that tax.
С-86/23 of 5 September 2024
Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Civil liability insurance for motor vehicles — Road traffic accident — Rights to compensation recognised in respect of the family members of the deceased person — Principle of fairness for the purposes of compensation for non-material damage suffered — Assessment criteria — Concept of „overriding mandatory provision“
Key aspects of the decision in the economic range:
Law applicable to a claim for compensation submitted by private individuals in accordance with compulsory insurance against civil liability in respect of the use of motor vehicles, against an insurance company. A national provision under which compensation for non-material damage suffered by the close family members of a person who died in a road traffic accident is determined by the court on the basis of fairness. Concept of „overriding mandatory provision“.
Proceedings between Bulgarian nationals and H, an insurance company, concerning compensation by the latter, on the basis of compulsory civil liability in respect of the use of motor vehicles, for non-material damage suffered by the Bulgarians as a result of the death of their daughter in a road traffic accident, which occurred in Germany.
Joined Cases С-639/22 - C-644/22 of 5 September 2024
Exemptions – Management of special investment funds – Definition – Pension funds – Comparability with an undertaking for collective investment in transferable securities (UCITS) – Investment risk borne by the members – Scope – Need for comparison with a pension fund regarded by the Member State concerned as a special investment fund
Key aspects of the decision in the economic range:
Under what conditions certain occupational pension funds can be regarded as special investment funds within the meaning of the VAT Directive. The VAT Directive must be interpreted that the members of a pension fund performing, under a collective pension scheme, a pension agreement providing for pension entitlements and retirement benefits, the amount of which may vary under certain conditions as a result of the investments made by that pension fund, may be regarded as bearing the investment risk only where that amount depends primarily on the performance of those investments.
Six sets of proceedings regarding the application of the value added tax exemption provided for in Article 135(1)(g) of the VAT directive to pension funds.
Joined Cases С-775/22, С-779/22 and C-794/22 of 5 September 2024
Resolution of credit institutions and investment firms  — General principles — Bail-in  — Write down of capital instruments  — Conversion of subordinated obligations into shares and mandatory transfer for no consideration — Protection of the rights of shareholders and creditors — Purchase of capital instruments  — Flawed and incorrect information provided in the prospectus  — Action for a declaration of nullity in respect of the agreement for the purchase of capital instruments — Actions brought against the universal successor of the credit institution subject to a resolution decision
Key aspects of the decision in the economic range:
After the total write down of the shares in a credit institution under resolution, persons who have purchased capital instruments that have been converted into shares before the adoption of resolution measures against it, bring an action for damages. After the total write down of the shares in a credit institution under resolution, persons who have purchased capital instruments which, in the context of that procedure, have been converted into shares in that credit institution, which were subsequently transferred to another credit institution, bring an action against the latter institution for a declaration of nullity in respect of the agreement by which they subscribed for those capital instruments under national law
Proceedings, concerning actions for a declaration of nullity or for damages brought by investors on account of flawed and incorrect information provided to them in the issuance prospectus when purchasing capital instruments that were subsequently converted into shares in a bank B.
С-351/22 of 10 September 2024
Common Foreign and Security Policy (CFSP) — Restrictive measures adopted in view of the actions of the Russian Federation destabilising the situation in Ukraine — Principle of legal certainty and principle that penalties must be defined by law — Brokering services in relation to military equipment — Prohibition on providing such services — Failure to notify the competent national authorities — Administrative offence  — Fine — Automatic confiscation of the amounts received in consideration for the prohibited transaction
Key aspects of the decision in the economic range:
Alleged breach of general principles of EU law and fundamental rights. Charter of Fundamental Rights of the European Union. Principle of legal certainty. Principle of nulla poena sine lege. Prohibition on providing brokering services is applicable even where the military equipment that was the subject of the brokering transaction concerned was never imported into the territory of a Member State. A national measure confiscating the entire proceeds of a brokering transaction, which is implemented automatically following a finding by the competent national authorities of an infringement of the prohibition on carrying out that transaction and of the obligation to notify that transaction.
Proceedings between N and the National Tax Administration Agency (ANAF), regarding an infringement notice imposing on that company a penalty and the confiscation of the amounts received in consideration for a brokering transaction for infringement of, inter alia, Article 2(2)(a) of Decision 2014/512.
С-73/23 of 12 September 2024
Taxation — Exemptions — Betting, lotteries and other forms of gambling — Principle of fiscal neutrality — Maintenance of the effects of a piece of national legislation — Entitlement to refund — Unjust enrichment
Key aspects of the decision in the economic range:
Principle of fiscal neutrality, not precluding national legislation which differentiates between, on the one hand, the purchase of lottery tickets and participation in other forms of gambling offered offline and, on the other hand, participation in forms of gambling other than lotteries offered online, by excluding the latter from the VAT exemption applicable to the former. Direct effect of the exemption.
Proceedings, concerning a decision relating to the value added tax as well as fines and late interest payments.
С-243/23 of 12 September 2024
VAT – Adjustment of deductions – Extended adjustment period for immovable property acquired as capital goods – Option for Member States to treat as capital goods services with characteristics similar to those normally associated with those goods – Building extension and renovation works – Possibility under national law of treating such works as the construction or acquisition of immovable property – Restrictions – Direct effect - Concept of ‘capital goods’
Key aspects of the decision in the economic range:
Principle of fiscal neutrality precludes the extended adjustment period for immovable property acquired as capital goods does not apply to construction works, subject to VAT as a supply of services, which involve a significant extension and/or substantial renovation of the building concerned by that work and the effects of which have a duration of economic life which corresponds to that of a new building. Requirement that a renovated building is considered as new. Direct effect.
Concept of ‘capital goods’.
Proceedings concerning the adjustment period applicable to the deductions of the value added tax paid in relation to work carried out on a building used for its economic activity.
С-429/23 of 12 September 2024
Common system of value added tax – Right of deduction – Time limits for filing and paying certain taxes – Extension of time on account of the COVID-19 pandemic – Denial of the right to deduct VAT – Time-barred – Principles of equivalence, effectiveness and neutrality of VAT
Key aspects of the decision in the economic range:
The principles of equivalence, effectiveness and neutrality of VAT must be interpreted as not precluding national legislation under which a taxable person is denied the right to deduct input VAT, on the ground that that person requested that deduction after the expiry of the limitation period, by means of a return seeking to correct a VAT return filed before the expiry of that period, notwithstanding the fact that national measures linked to the COVID-19 pandemic to extend the time limits for the filing and payment of certain taxes, without including VAT among those taxes.
Proceedings between N and the Director of the ‘Tax and Social Security Appeals regarding the director’s refusal to allow N to exercise its right to deduct input VAT for the taxable transactions carried out before N s registration for VAT.
С-741/22 of 12 September 2024
VAT – Exemptions – Betting, lotteries and other forms of gambling – Conditions and limits – Principle of fiscal neutrality – Maintenance of the effects of a piece of national legislation – Entitlement to refund – Unjust enrichment – State aid – Application for a refund of the tax in the form of damages
Key aspects of the decision in the economic range:
Exemption of gambling. Direct effect of the exemption. The principle of fiscal neutrality, must be interpreted as not precluding national legislation which differentiates between, on the one hand, the purchase of lottery tickets online and, on the other hand, participation in other forms of gambling offered online, by excluding the latter from the VAT exemption applicable to the former, provided that the objective differences between those two categories of gambling are liable to have a considerable influence on the decision of the average consumer to use one or other of those categories of games. Where the VAT exemption constitutes unlawful State aid, a taxable person who has not benefited from such an exemption cannot receive, in the form of damages, an amount equivalent to the VAT that that taxable person paid.
Proceedings relating to the value added taxes as well as fines and late interest payments in relation to that VAT payable.
С-501/23 of 19 September 2024
Judicial cooperation in civil matters — Insolvency proceedings — International jurisdiction — Centre of main interests of an individual exercising an independent business activity — Chairman of the supervisory board of a public limited company — – Concepts of ‘establishment’, ‘principal place of business’ and ‘interests’
Key aspects of the decision in the economic range:
A concept of ‘principal place of business’ of an individual exercising an independent business or professional activity, within the meaning of Article 3(1) of Regulation 2015/848, which does not correspond to the concept of ‘establishment’ defined in Article 2(10) of that regulation. With regard to an individual exercising an independent business or professional activity, it is to be presumed, in the absence of proof to the contrary, that that individual’s centre of main interests is situated in the principal place of business of that individual, even where that activity does not require any human means or any asset.
Proceedings, concerning insolvency proceedings.