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Tax & Financial Standards New Judgments of the ECJ For September 2018

02.10.2018

Tax & Financial Standards New Judgments of the ECJ For September 2018

С-502/17 of 6 September 2018

Common system of value added tax

Holding company

Deduction of VAT

Costs of services used in connection with a planned sale of shares in the capital of a subsidiary

С-531/17 of 6 September 2018

Common system of value added tax

Exemption from import duty and subsequent intracommunity supply

Refusal to recognize an exemption from importation as a result of subsequent evasion of VAT incurred by the purchaser in relation to the imported goods

Tax obligation of the declarant of import VAT as a representative of the importer)

"Infecting" on a subsequent intention to commit fraud

С-80/17 of 4 September 2018

Compulsory insurance against civil liability in respect of the use of motor vehicles - Obligation to take out a contract of insurance - Vehicle parked on private land - Right of the compensation body to bring an action against the owner of the uninsured vehicle - Concept of ‘vehicle’

Key aspects of the decision in the economic range:

Insurance against civil liability and the enforcement of the obligation to insure against such liability.

Conclusion of a contract of insurance against civil liability relating to the use of a motor vehicle when the vehicle concerned is still registered in a Member State and is capable of being driven but is parked on private land, solely by the choice of the owner, who no longer intends to drive it.

Concept of ‘vehicle’.

Proceedings concerning the reimbursement of compensation that the Motor Vehicle Guarantee Fund paid to victims of an accident involving a vehicle, belonging to Mrs D which was driven by her son.

С-17/17 of 6 September 2018

Protection of employees in the event of the insolvency of their employer - Supplementary pension schemes - Protection of entitlement to old-age benefits - Minimum level of protection guaranteed

Key aspects of the decision in the economic range:

Minimum level of Community protection in the event of the employer’s insolvency.

Protection of the immediate and prospective entitlement of employees to old-age benefits. Supplementary occupational pension scheme.

Minimum guarantee. Direct applicability.

Proceedings between Mr H and the Board of the Pension Protection Fund, concerning the calculation of the former’s entitlement to old-age benefits.

С-527/16 of 6 September 2018

Social security - Workers posted in a Member State other than that in which the employer usually carries out its activities - Issue of the A1 attestations by the Member State of origin after recognition by the host Member State that the workers are subject to its social security scheme - Incorrect issue of A1 certificates - Binding nature and retroactive effect of those certificates - Legislation applicable - Concept of a person ‘sent to replace another person’

Key aspects of the decision in the economic range:

Migrant workers.

Principle of the affiliation of employees to a single social security scheme.

Decision of the Administrative Commission for the Coordination of Social Security Systems that the portable document A1 should be withdrawn. Retroactive effect of the portable document A1. Portable document A1 issued after the worker became subject to the social security system of the host Member State.

‘Non-replacement condition’ applicable to the posted persons.

Proceedings concerning the social security legislation applicable to persons posted to work in Austria under an agreement between A, established in Austria, and M, established in Hungary.

С-69/17 of 12 September 2018

Value added tax - Right of deduction - Acquisitions made by a taxpayer declared ‘inactive’ by the tax authorities - Refusal of the right of deduction - Principles of proportionality and neutrality of VAT

Key aspects of the decision in the economic range:

Substantive requirements conferring a right to deduct VAT paid as input tax satisfied irrespective of the date of the VAT return or invoice.

Taxable person which has made acquisitions during the period in which its VAT identification number was revoked due to a failure to submit tax returns.

Proceedings concerning company G’s right to deduct value added tax (VAT) paid on acquisitions made during a period in which its VAT identification number was inoperative.

С-176/17 of 13 September 2018

Consumer protection - Unfair terms in consumer contracts - Order for payment procedure founded on a promissory note that secures the obligations arising from a consumer credit agreement

Key aspects of the decision in the economic range:

Consumer credit agreement.

Issue of an order for payment founded on a formally valid promissory note that secures a claim arising from a consumer credit agreement, where the court dealing with an application for an order for payment does not have the power to examine whether the terms of that agreement are unfair.

Proceedings that relate to an application seeking an order for payment and founded on a promissory note in respect of the payment of sums allegedly due pursuant to a consumer credit agreement.

С-594/16 of 13 September 2018

Obligation of professional secrecy on national authorities charged with prudential supervision of credit institutions - Credit institution which is being compulsorily wound up - Disclosure of confidential information in civil or commercial proceedings

Key aspects of the decision in the economic range:

Access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms. Access to documents concerning the supervision of a bank. Professional secrecy.

Bankruptcy or compulsory winding up of credit institutions. Disclosure of confidential information in civil or commercial proceedings.

Request for access to documents before the commencement of civil or commercial proceedings. Action for damages.

Proceedings between Mr B and the Bd concerning the latter’s decision refusing to grant the applicant access to certain documents regarding BNI.

С-51/17 of 20 September 2018

Loan contract denominated in a foreign currency - Plain and intelligible drafting of a term - Term incorporated in the contract after its conclusion following the intervention of the national legislature - Examination by the national court of its own motion as to whether a term is unfair - Concept of "term which has not been individually negotiated"

Key aspects of the decision in the economic range:

Unfair terms in consumer contracts.

Mandatory statutory or regulatory provisions. Member State statutory measures passed to remedy unfair contractual terms.

Powers of Member State courts to assess contractual terms for unfairness of their own motion.

Requirement financial institutions to provide borrowers with adequate information to enable them to take well-informed and prudent decisions.

Concept of "term which has not been individually negotiated".

Proceedings concerning an application for a declaration that certain terms in a loan contract denominated in Swiss francs disbursed and repaid in Hungarian forints are unfair.

С-448/17 of 20 September 2018

Judicial review of the contract terms of the credit agreement - Obligation to draft terms in plain intelligible language - Actions brought before the courts by persons or organisations having a legitimate interest in protecting consumers against the use of unfair terms - National law making the possibility for a consumer protection association to intervene in the proceedings subject to the consumer’s consent - Obligation to indicate the annual percentage rate in the written agreement

Key aspects of the decision in the economic range:

Consumer credit.

Unfair terms in consumer contracts.

National legislation which does not permit a consumer protection organisation to intervene in the interests of the consumer in proceedings seeking an order for payment concerning an individual consumer or to lodge an objection against such an order in the absence of a challenge to it by the consumer.

Grant of orders for payment to officials who do not have the status of magistrate.

Credit agreement that fails to mention the APR. Mathematical formula for the calculation of the APR without the information necessary to make that calculation.

Proceedings concerning a claim for payment of the outstanding amounts due under a consumer credit.

С-685/16 of 20 September 2018

Deduction of taxable profits - Shareholdings of a parent company in a capital company whose management and registered office are located in a non-member State - Dividends distributed to the parent company - Tax deductibility subject to stricter conditions than deduction of profits from shareholdings in a non-tax-exempt capital company governed by national law

Key aspects of the decision in the economic range:

Different treatment of dividends from subsidiaries having their management and registered office in a third country.

National legislation, which subjects a deduction of profits from shareholdings in a capital company with its management and head office in a non-member State to stricter conditions than a deduction of profits from shareholdings in a non-exempt capital company governed by national law.

Proceedings between E, a partnership limited by shares governed by German law, and the Tax Office, concerning trade tax imposed on E.

Expect

Case C-502/17

Reference for a preliminary ruling - Common system of value added tax - Holding company - Deduction of VAT - Costs of services used in connection with a planned sale of shares in the capital of a subsidiary

Case C-531/17

Reference for a preliminary ruling - Common system of value added tax - Exemption from import duty and subsequent intra-Community supply - Refusal to recognize the exemption of imports from subsequent VAT evasion carried out by the purchaser in respect of the imported goods - Tax liability of the declarant VAT on import (as representative of the importer) - "Infecting" on a subsequent intention to commit fraud


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