News

27.07.2017

New judgments of the court June & July

Tax & Financial Standards

New Cases

Case from July C-245/16

State aid - General exemption by category - Withdrawal of the aid - Obligation to reimburse the advance paid - Company granted State aid under a regional operational programme of the European Regional Development Fund subsequently admitted to an arrangement with creditors as a going concern - Concept of ‘collective insolvency proceedings’

Key aspects of the decision in the economic range:

Conditions for refusal or withdrawal of aid from European Union funds. Obligation to refund aid. Application for an arrangement with creditors by a company in receipt of European Union funds. Withdrawal of State aid, as part of the implementation of a regional operational programme of the European Regional Development Fund (ERDF), on account of the admission of that company to an arrangement with creditors as a going concern. Concept of ‘collective insolvency proceedings’

Case from July C-254/16

State aid - General exemption by category - Withdrawal of the aid - Obligation to reimburse the advance paid - Company granted State aid under a regional operational programme of the European Regional Development Fund subsequently admitted to an arrangement with creditors as a going concern - Concept of ‘collective insolvency proceedings’

Key aspects of the decision in the economic range:

Conditions for refusal or withdrawal of aid from European Union funds. Obligation to refund aid. Application for an arrangement with creditors by a company in receipt of European Union funds. Withdrawal of State aid, as part of the implementation of a regional operational programme of the European Regional Development Fund (ERDF), on account of the admission of that company to an arrangement with creditors as a going concern. Concept of ‘collective insolvency proceedings’

Case from July C-20/16

Freedom of movement of workers - Income received in a Member State other than the Member State of residence - Method of exemption with maintenance of progressivity in the Member State of residence - Pension and health insurance contributions levied on income received in a Member State other than the Member State of residence

Key aspects of the decision in the economic range:

The Convention concluded between the French Republic and the Federal Republic of Germany for the avoidance of double taxation. Tax treatment, by a Member State, of income received by a resident of that Member State in respect of employment in the public administration of another Member State, and, in particular pension and health insurance contributions deducted from that income in the Member State of employment. the inclusion of pension and health insurance contributions in the calculation of the taxable income and the special tax rate to be applied to the taxable income.

   Case from June C-126/16

Safeguarding of employees’ rights in the event of transfers of undertakings - Insolvency proceedings - ‘Pre-packs’ - a transfer of the assets prepared before the declaration of insolvency, with the consent of a prospective insolvency administrator, appointed by the court, and is put into effect by that administrator immediately after the declaration of insolvency

Key aspects of the decision in the economic range:

Safeguarding employees’ rights in the event of transfers of undertakings. Preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for. Exception in the event of bankruptcy or insolvency proceedings. The insolvent undertaking in a situation where the insolvency is preceded by a judicially monitored “pre-pack” procedure, expressly aimed at securing the survival of the undertaking. ‘Pre-pack’ - continuation of the undertaking’s business.

            in proceedings between, on the one hand, a Netherlands trade union organisation, and, on the other hand, Smallsteps BV, for a declaration of transfer of employment relationships to Smallsteps BV.

Case from June C-288/16

Value added tax - Exemptions on exportation - Services that are not supplied directly to the exporter, the importer or the consignee – Meaning of “supply of services directly connected with the exportation or the importation of goods”

Key aspects of the decision in the economic range:

The application of value added tax (VAT) to freight transport transactions. Exemptions on exportation the supply of services, including transport and ancillary transactions. A supply of services consisting in the transport of goods to a third country, where those services are not supplied directly to the consignor or the consignee of those goods.

Meaning of “supply of services directly connected with the exportation or the importation of goods”.

Case from June C-74/16

State aid – TFEU - Demarcation between economic and non-economic activities of the Catholic Church - Tax on construction, installations and works - Exemption for buildings belonging to the Catholic Church - Meaning of ‘State aid’, ‘undertaking’ and ‘economic activity’, ‘selective economic advantage’, ‘aid granted by the State or through State resources’, ‘new aid’ and ‘existing aid’

Key aspects of the decision in the economic range:

Exemption from certain taxes granted by a Member State to a religious community, even in respect of activities which have no strictly religious purpose. A tax exemption in respect of works on a building intended to be used for activities that do not have a strictly religious purpose. Meaning of ‘State aid’, ‘undertaking’ and ‘economic activity’, ‘selective economic advantage’, ‘aid granted by the State or through State resources’, ‘new aid’ and ‘existing aid’.

In proceedings between Congregation of the schools of a religious order and Municipality of Getafe, Spain, concerning the latter’s refusal of the Congregación’s application for a refund of the amount it had paid in respect of the tax on construction, installations and works.

Cases of  June

Case from June C-571/15

Value added tax - Community Customs Code - External transit procedure - Incurrence of a customs debt and chargeability of VAT in cases of unlawful removal from customs supervision - Goods transported through a free port located in a Member State - Legislation of that Member State excluding free ports from its national fiscal territory.

Key aspects of the decision in the economic range:

International trade. Incurrence of a customs debt and chargeability of VAT. Place of taxable transactions. Removal from customs supervision. Goods which had been brought into the customs territory of the European Union, after having been placed in temporary storage for a short period - the customs seal having been broken.

            In proceedings concerning obligation to pay the value added tax arising as a consequence of the incurrence of a customs debt.

Case from June C-54/16

Area of freedom, security and justice - Insolvency proceedings - Acts detrimental to all the creditors - Conditions in which the act in question may be challenged - Act subject to the law of a Member State other than the State of the opening of proceedings - Location of all the elements of the situation concerned in the State of the opening of proceedings

Key aspects of the decision in the economic range:

Judicial cooperation in civil matters. Insolvency proceedings. Unenforceability of legal acts detrimental to all the creditors. Payments made after the contractual deadlines had expired, at a time when it was well known that the company was insolvent.

            Choice of law applicable to contractual obligations. Parties to a contract, who have their head offices in a single Member State on whose territory all the other elements relevant to the situation are located, have designated the law of another Member State as the law applicable to that contract.

            In proceedings between Vinyls Italia SpA, in liquidation, and Mediterranea, concerning an action to set certain transactions aside and for the repayment, by Mediterranea, of sums which Vinyls Italia SpA paid to it in the six months preceding the declaration of insolvency.

Case from June C-580/15

Agreement on the European Economic Area - Deposits received by credit institutions established in another Member State of the European Economic Area - Tax legislation - Income tax - ax exemption reserved to interest payments by banks complying with certain statutory conditions

Key aspects of the decision in the economic range:

A tax system which is applicable without distinction to the remuneration received from a savings deposit. Indirect discrimination. Banks established in Belgium and banks established in another Member State. A national tax exemption system applicable to income from savings deposits held with banking service providers. Certain criteria, laid down by statute, such as denomination in euros, withdrawal limits and a method for calculating remuneration that must consist of basic interest and a fidelity premium.

            In proceedings concerning the refusal to grant a tax exemption for remuneration received from a savings deposit in a Member State other than the Kingdom of Belgium.

Case from June C-26/16

Value added tax – Exemptions - An intra-Community supply of a new means of transport - Purchaser’s residence in the Member State of destination - Temporary registration in the Member State of destination - Risk of tax evasion - Good faith of the vendor

Key aspects of the decision in the economic range:

Intra-Community transactions. Conditions for the grant of the exemption for an intra-Community supply of a new means of transport. Supply of new means of transport, dispatched or transported to the customer at a destination outside their respective territory but within the Union, by or on behalf of the vendor. Tax and Customs Authority`s refusal to exempt a transaction from value added tax as an intra-Community supply of a new means of transport. Good faith - obligation of diligence on the part of the vendor.

Case from June C-38/16

Value added tax - Right to deduct VAT - Repayment of overpaid VAT - Detailed rules on repayment - Difference in relation to the period laid down for repayment of deductions wrongly refused - Principles of equal treatment and fiscal neutrality - Principle of effectiveness

Key aspects of the decision in the economic range:

Deduction of input VAT. Tax paid but not due. Claim for repayment of overpaid VAT. National legislation, which, in the context of a reduction in the limitation period, lays down different transitional periods, on the one hand, for claims for repayment of overpaid VAT and, on the other hand, for claims for deduction of input VAT.

         

Case from June C-678/15

Consumer protection - Markets in financial instruments - Reception and transmission of orders in relation to one or more financial instruments - Potential inclusion of brokering with a view to concluding a portfolio management contract - Definition of ‘investment services’

Key aspects of the decision in the economic range:

A high level of protection for investors. Organisational requirements and operating conditions for investment firms. Investment service consisting in the reception and transmission of orders in relation to one or more financial instruments. Brokering with a view to concluding a contract covering portfolio management services. Definition of ‘investment services’.

            In proceedings concerning the brokering in connection with an asset management agreement.

         Case from June C-75/16

Consumer protection - Applications by consumers to set an order aside in the context of payment order proceedings instituted by a credit institution - Mediation in civil and commercial matters - Alternative dispute resolution (ADR) procedures - Right of access to the judicial system - National legislation providing for mandatory recourse to a mediation procedure - Obligation to be assisted by a lawyer

Key aspects of the decision in the economic range:

Payment of the debit balance on a current account following the grant of credit facilities - a contract for the opening of a current account guaranteed by a mortgage. An appeal against an order for payment obtained by a credit institution. A complaint by a consumer, of an independent nature in relation to the order for payment proceedings instituted by a trader working in credit. Obligation on the consumer to use a mediation procedure before referring the matter to a judicial body - mandatory assistance of a lawyer. Penalties for withdrawal from a mediation procedure.

Case from June C-249/16

Jurisdiction in civil and commercial matters - The reimbursement of monthly payments, due under a joint credit agreement - Recourse claim between jointly and severally liable debtors under a credit agreement - Determination of the place of performance of the credit agreement - Concepts of ‘matters relating to a contract’ and of a ‘contract for the provision of services’

Key aspects of the decision in the economic range:

A credit agreement concluded between a credit institution and two jointly and severally liable debtors. Claim for repayment made by a debtor against the other jointly and severally liable debtor for banking commitments under a joint credit agreement. Determining the territorial jurisdiction of the court called upon to hear and determine an action for recourse between those debtors. Concepts of ‘matters relating to a contract’ and of a ‘contract for the provision of services’

Case from June C-444/16

Annual accounts of certain types of companies. Company - option issuer per share, which accounts for the option price during the accounting year in which the option was exercised or after the expiration of its term. Principle of true and fair view - Principle of precaution

Key aspects of the decision in the economic range:

Posting a provision to cover losses or liabilities that are either probable or secure. Option price accounted for in accrued liabilities and accrued income for future periods. The accounting method whereby a company issuing a share option right shall account for revenue as the proceeds of the exercise of this option during the accounting year in which that option is exercised or when its option expires. Tax audit act as hidden options price options. Principle of true and fair view - Principle of precaution

Expect:

Judgment C‑308/16

Reference for a preliminary ruling concerning the exemption from VAT of the supply of buildings or parts of buildings and of the land occupied by them - Concept of first residence - Concept of transformation

The referring court seeks to ascertain whether the Polish legislation transposing that part of Directive 2006/112 into national law (both as regards the concept of 'first inhabitation' and the concept of 'conversion of buildings') is consistent with With that Directive.