News

/ News
Tax & Financial Standards New Judgments of the ECJ For November 2018

30.11.2018

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

С-569/16 of 6 November 2018

Right to paid annual leave — Employment relationship terminated by the death of the worker - National legislation preventing the payment of an allowance to the legal heirs of a worker in lieu of paid annual leave not taken by him - Obligation to interpret national law in conformity with EU law - Whether it may be relied upon in a dispute between individuals

Key aspects of the decision in the economic range:

Organisation of working time.

Employment relationship terminated by the death of the worker.

Loss of entitlement to paid annual leave. A heir of a worker who died while in an employment relationship a right to financial compensation for the worker’s minimum annual leave prior to his death.

Obligation to interpret national law in conformity with EU law.

Possibility of relying directly on Article 31(2) of the Charter of Fundamental Rights in a dispute between individuals.

Obligation to disapply contrary national legislation.

Two sets of proceedings concerning the refusal by former employers of the late workers to pay their wives an allowance in lieu of the paid annual leave not taken by their spouses before their death.

С-619/16 of 6 November 2018

Organisation of working time - Right to paid annual leave - National legislation providing for the loss of annual leave not taken and of the payment in lieu thereof, where the worker did not submit a request for leave before the termination of the employment relationship

Key aspects of the decision in the economic range:

Social policy.

Allowance in lieu of untaken paid annual leave at the end of the employment relationship. Loss of the right to that allowance where the worker does not seek to take his paid annual leave and does not show that he was unable to take that leave for reasons beyond his control.

Proceedings between a worker and his former employer concerning the latter’s refusal to pay him an allowance in lieu of paid annual leave not taken before the employment relationship between them was terminated.

С-495/17 of 8 November 2018

Cases of exemption from value added tax — Transport services directly connected with the export of goods — Supply of services by intermediaries, involved in such transactions — Rules of evidence of exporting goods — Export declaration — TIR carnet

Key aspects of the decision in the economic range:

Exemptions from value added tax.

Tax practice of a Member State under which a condition for exempting value added tax on transport services, directly linked to the export of goods, and the supply of services by intermediaries involved in those transport services, is the presentation by the taxable person of the customs export declaration.

Proof that the goods have been exported outside EU territory.

System established by the Customs Convention on the international transport of goods. TIR carnets.

Proceedings concerning the refusal of the tax authorities to exempt from value added tax a number of transport transactions made for the purpose of exporting goods to third parties

С-502/17 of 8 November 2018

Holding company - Deduction of input tax - Expenditure on services linked to the proposed sale of shares in a subsidiary - Proposed sale of shares in a sub-subsidiary - Sale not carried out

Key aspects of the decision in the economic range:

Scope of VAT.

Request for a deduction of input tax. Right to a company to deduct the input VAT related to expenditure incurred in the context of a transaction for the disposal of shares in a sub-subsidiary to which that company provides VAT-taxable management services, when it is envisaged that the proceeds of that sale will be allocated to the repayment of a debt due.

Proceedings between C and the S (Ministry of Taxation) concerning the latter’s refusal to grant to that company the deduction of input value added tax relating to consultancy services which that company used in the context of a proposed sale, which was not completed, of shares in a sub-subsidiary to which C provided management and IT services.

С-33/17 of 13 November 2018

Services in the internal market - Reporting of workers - Payment of a security by the recipient of the services - Surety for a possible fine to be imposed on the service provider - Suspension of payments - Posting of workers in order to carry out construction works

Key aspects of the decision in the economic range:

Freedom to provide services.

Retention and translation of payslips.

National legislation requiring a recipient of services to provide security in order to secure a fine that might be imposed on a service provider established in another Member State.

Legislation of a Member State under which the competent authorities can order a commissioning party established in that Member State to suspend payments to his contractor established in another Member State, or even to pay a security in an amount equivalent to the price still owed for the works in order to guarantee payment of the fine. Concept of ‘labour law’.

Proceedings concerning a payment pursuant to a contract for works.

С-215/17 of 14 November 2018

Right of access to public sector information - Information to be disclosed by credit institutions and investment firms - Commercial information considered sensitive or confidential - Prudential requirements

Key aspects of the decision in the economic range:

Reuse of public sector information.

Access to public sector information more extensive than is provided for by the uniform rules on the disclosure of information.

Credit institutions, in which the State has a majority share.

National rule which compels a bank that was under the dominant influence of a public law entity, to disclose information on contracts provided for consultancy and services of an intellectual nature without providing for any exception, with a view to commercial confidentiality.

Balance of the public interest in accessing the data against the bank’s interest in safeguarding its business secrets.

Proceedings concerning the decision of the authority to protect information which bank is ordered to provide information on journalist.

С-296/17 of 14 November 2018

Judicial cooperation in civil matters — Insolvency proceedings — International jurisdiction — Action to set a transaction aside — Exclusive jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened

Key aspects of the decision in the economic range:

The jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened must hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive.

Rules for determination of international jurisdiction in the event of an action to set a transaction aside, arising directly from insolvency proceedings.

Conditions for the protection of persons who have fulfilled an obligation in favor of the debtor in insolvency, if that obligation should have been fulfilled in favor of the liquidator of the proceedings in another Member State.

Proceedings between W, a company in liquidation, and Mr T concerning the repayment by that person of a sum of money which was transferred to him from W’s bank account without the provisional liquidator’s consent.

С-308/17 of 15 November 2018

Bonds issued by a Member State — Involvement of the private sector in the restructuring of public debt of that State — Unilateral and retroactive adjustment of the borrowing terms — Collective action clauses — Action brought against the State by private creditors who hold those bonds as natural persons — Liability of the State for acts and omissions in the exercise of State authority — Concept of ‘civil and commercial matters’

Key aspects of the decision in the economic range:

Jurisdiction in matters relating to a contract.

Terms of the subscription to the State bond.

An action brought by a natural person having acquired bonds issued by a Member State, against that State and seeking to contest the exchange of those bonds with bonds of a lower value, imposed on that natural person by the effect of a law adopted in exceptional circumstances by the national legislator, according to which those terms were unilaterally and retroactively amended by the introduction of a CAC allowing a majority of holders of the relevant bonds to impose that exchange on the minority.

Concept of ‘civil and commercial matters’.

Proceedings concerning a claim to obtain fulfilment of the borrowing terms of bonds issued by a Member State or compensation for the non-fulfilment of those terms. Proceedings concerning a claim to obtain fulfilment of the borrowing terms of bonds issued by a Member State or compensation for the non-fulfilment of those terms.

С-648/17 of 15 November 2018

Compulsory insurance against civil liability in respect of the use of motor vehicles - Accident involving two vehicles parked in a car park - Material damage to a vehicle caused by a passenger from a neighbouring vehicle opening the vehicle door - Concept of ‘use of vehicles’

Key aspects of the decision in the economic range:

Compulsory insurance against civil liability, arising not only from the driving of vehicles but also from other uses made of vehicles by persons other than the driver.

Situation in which the passenger of a vehicle parked in a car park, in opening the door of that vehicle, scraped against and damaged the vehicle parked next to it.

Concept of ‘use of vehicles’.

Proceedings concerning the reimbursement of insurance compensation paid to one of the customers.

С-452/17 of 21 November 2018

Coordination of the laws of the Member States relating to self-employed commercial agents - Self-employed intermediary performing his activities from the principal’s business premises - Performance of tasks other than those related to the negotiation of sales or the purchase of goods for the principal - Definition of ‘commercial agent’

Key aspects of the decision in the economic range:

Free movement of persons. Freedom of establishment.

Self-employed commercial agents. Persons whose activities as commercial agents are considered secondary.

Independent intermediary not prospecting and not visiting customers or suppliers outside the principal's business and performing other duties than those related to negotiating the sale or purchase of goods for the principal.

Definition of ‘commercial agent’.

Proceedings concerning the payment for services and commission following the breach of an agreement between two companies.

С-648/16 of 21 November 2018

Right to deduct VAT - Tax adjustment - Method of calculating the taxable amount by extrapolation - National law basing the calculation of VAT on presumed turnover - Principles of neutrality and proportionality

Key aspects of the decision in the economic range:

Determination of VAT due by dint of inductive methods.

Suspected tax evasion. Right of tax authorities, in the event of serious differences between declared revenue and revenue estimated on the basis of sector studies, to use extrapolation, based on such sector studies, in order to determine the amount of turnover achieved by a taxable person and, consequently, to carry out a tax adjustment.

Right of defence. Standard of proof.

Proceedings regarding a tax assessment notice concerning an additional assessment to value added tax.

С-664/16 of 21 November 2018

Common system of value added tax - Scope of the right of deduction – Absence of invoices – Recourse to a court-commissioned expert report - Burden of proof of the right of deduction – Principles of fiscal neutrality and proportionality

Key aspects of the decision in the economic range:

Principle of VAT neutrality.

Right to deduct input tax.

Taxable person who is unable to provide evidence of the amount of input VAT he has paid, by producing invoices.

Right to deduct VAT solely on the basis of an assessment resulting from an expert report commissioned by a national court.

Proceedings regarding the refusal to grant the appellant in the main proceedings the right to deduct VAT in respect of the goods and services which he used for his own transactions because he was unable to produce the invoices relating to those goods and services.

С-295/17 of 22 November 2018

Common system of value added tax —Supply — A distinction between non-taxable damages and taxable supplies of services in return for payment of "compensation"

Key aspects of the decision in the economic range:

Taxation of VAT on a supply of services.

Qualification of the amount predetermined in a service contract that the client owes in case of early termination of the contract.

From the point of view of the law in the field of value added tax differentiation of payment for (taxable and non-exempt) service from payment for financial loss (therefore non-taxable)

Proceedings concerning the payment of value added tax and the corresponding compensatory interest.

С-575/17 of 22 November 2018

Withholding tax on the gross amount of nationally sourced dividends paid to non-resident companies — Deferral of taxation of dividends paid to a resident company in the event of a loss-making year — Difference in treatment — Balanced distribution of the powers of taxation between the Member States — Effective collection of tax — Discrimination

Key aspects of the decision in the economic range:

Free movement of capital.

Withholding tax on the gross amount of nationally sourced dividends paid to non-resident companies

Different taxation of dividends paid to resident companies based on the net financial result.

Taxation of withholding tax on the gross amount of dividends paid by a resident company to foreign loss-making companies, whereas the dividends paid to a resident loss-making company are subject to taxation under the general rules on their net amount, but only at a later point in time if it takes into account tax profits

Proceedings between S and Si companies incorporated under Belgian law, and the Minister for the Public Sector and Public Accounts, France regarding the latter’s refusal to reimburse the withholding tax levied on the dividends paid to those companies.

С-627/17 of 22 November 2018

European Small Claims Procedure — Cross-border disputes — A dispute, in which the applicant and the defendant have their domicile or their habitual residence in the same Member State as the court or tribunal seised — Concept of "parties"

Key aspects of the decision in the economic range:

Small claims in cross-border cases.

An individual participating in the proceedings who is neither the claimant (applicant) nor the respondent (defendant), but who intervenes in the proceedings in order to support the arguments put forward by the claimant (applicant) or the respondent (defendant) as an intervener".

Concept of "parties".

Proceedings concerning the recovery of a debt.

Oktober

С-12/17 of 4 Oktober 2018

Social policy - Organisation of working time - Right to paid annual leave - Revised Framework Agreement on parental leave - Parental leave not regarded as a period of actual work

Key aspects of the decision in the economic range:

Period of actual work.

Right to parental leave. National law which, for the purpose of determining the duration of a worker’s annual leave, does not consider a period of parental leave to care for a child under the age of two to be a period of actual work. Duration of parental leave not taken into account for the purposes of determining entitlement to paid annual leave.

Dispute between concerning the determination of annual paid leave entitlement.

С-416/17 of 4 Oktober 2018

Series of charges to tax - Difference in treatment according to the Member State of residence of the sub-subsidiary - Reimbursement of the advance payment of tax unduly paid - Requirements relating to the evidence establishing a right to such reimbursement

Key aspects of the decision in the economic range:

Discriminatory and disproportionate treatment of French parent companies which receive dividends from foreign subsidiaries with regard to the right to reimbursement of tax levied in breach of EU law.

Action under Article 258 TFEU for failure to fulfil obligations.


EuroCases

340VAT excl.

for account per year

For full pricelist see here

Buy now Free trial
TAX & FINANCIAL STANDARDS

240VAT excl.

for account per year

For full pricelist see here 

Buy now Free trial