ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Goods and services used for the purposes of the taxable person's taxable transactions — Need for a direct and immediate link between the input transaction and the taxable person’s activity — Criterion for appraisal — Tax chargeable on supplies of lawyers’ services in the context of criminal proceedings brought in a personal capacity against natural person, managers of a taxable undertaking — Right to deduction — No such right

(Council Directive 77/388, as amended by Directive 2001/115, Art. 17(2)(a))

Summary

The existence of a direct and immediate link between a given transaction and the taxable person’s activity as a whole for the purposes of determining whether the goods and services were used by the latter ‘for the purposes of taxable transactions’ within the meaning of Article 17(2)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 2001/115, depends on the objective content of the goods or services acquired by that taxable person.

The fact that the existence of such a direct and immediate link between a supply of services and the overall taxable economic activity must be determined in the light of the objective content of that supply of services does not preclude that the exclusive reason for the transaction at issue can also be taken into account, since that reason must be considered as a criterion for determining the objective content. Where it is clear that a transaction has not been performed for the purposes of the taxable activities of a taxable person, that transaction cannot be considered as having a direct and immediate link with those activities, even if that transaction would, in the light of its objective content, be subject to value added tax.

With regard to the supplies of lawyers’ services, whose purpose is to avoid criminal penalties against natural persons, managing directors of a taxable undertaking, such supplies do not give that undertaking the right to deduct as input tax the value added tax due on the services supplied where, in the first place, those supplies seek directly and immediately to protect the private interests of managers who are charged with offences relating to their personal behaviour and, in the second place, there is no legal link between the criminal proceedings and the taxable undertaking, so that those services must therefore be considered to have been performed entirely outside that undertaking’s taxable activities.

(see paras 29-31, 33, operative part)
Keywords

Summary



Keywords

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject-matter of the main proceedings

(Art. 267 TFEU)

2. Member States — Retained powers — Field of penalties relating to value added tax — Obligation to exercise that power in accordance with European Union law and its general principles

3. Harmonisation of fiscal legislation — Common system of value added tax — Principle of fiscal neutrality — Scope — Penalty for delay prescribed by a Member State and imposed upon a taxable person who has not complied with the obligation to record matters in the accounts — Remedying of the omission — Payment of the tax — Lawfulness — Assessment of certain circumstances by the national court in the light of Articles 242 and 273 of Directive 2006/112 and in the light of the principle of proportionality

(Council Directive 2006/112, Arts 242 and 273)

Summary

1. See the text of the decision.

(see para. 27)

2. See the text of the decision.

(see para. 31)

3. The principle of fiscal neutrality does not preclude the tax authorities of a Member State from imposing upon a taxable person who has not fulfilled within the period prescribed by national legislation his obligation to record in the accounts and to declare matters affecting the calculation of the value added tax for which he is liable a fine equal to the amount of the value added tax not paid within that period where the taxable person has subsequently remedied the omission and paid all the tax due, together with interest. It is for the national court to determine, in view of Articles 242 and 273 of Directive 2006/112 on the common system of value added tax, whether in the light of the circumstances of the main proceedings – in particular the period within which the irregularity was rectified, the seriousness of that irregularity, and the presence of any evasion or any circumvention of the applicable legislation that is attributable to the taxable person – the amount of the penalty imposed goes beyond what is necessary to attain the objectives of ensuring the correct collection of tax and preventing evasion.

European Union law cannot be relied on for abusive or fraudulent ends. Nevertheless, late payment of tax cannot, per se, be equated with evasion.

(see paras 41-43, operative part)
Article 6(2) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, must be interpreted as meaning that, even where an employee carries out the work in performance of the contract habitually, for a lengthy period and without interruption in the same country, the national court may, under the concluding part of that provision, disregard the law of the country where the work is habitually carried out, if it appears from the circumstances as a whole that the contract is more closely connected with another country.

To that end, the referring court must take account of all the elements which define the employment relationship and single out one or more as being, in its view, the most significant. The court called upon to rule in a particular case cannot automatically conclude that the rule laid down in Article 6(2)(a) of the Rome Convention must be disregarded solely because, by dint of their number, the other relevant circumstances — apart from the actual place of work — would result in the selection of another country.

Among the significant factors suggestive of a connection with a particular country, account should be taken in particular of the country in which the employee pays taxes on the income from his activity and the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes. In addition, the national court must also take account of all the circumstances of the case, such as the parameters relating to salary determination and other working conditions.

(see paras 36, 37, 40-42, 44, operative part)
Article 17 of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that a taxable person who has set up a pension fund in the form of a legally and fiscally separate entity in order to safeguard the pension rights of his employees and former employees is entitled to deduct the value added tax he has paid on services relating to the management and operation of that fund, provided that the existence of a direct and immediate link is apparent from all the circumstances of the transactions in question.

In this respect, it must be ascertained whether, despite the fact that the fund set up by the taxable person is an entity that is legally separate from that person, the existence of such a link is apparent from all the circumstances of the transactions in question.

Where the taxable person acquires those services for the purpose of the administration of his employees’ pensions and the management of the assets of the pension fund set up to safeguard those pensions, by virtue of a legal obligation imposed on him as an employer, and in so far as the costs of the services acquired by the taxable person in that connection form part of his general costs, which is for the referring court to verify, they are, as such, component parts of the price of the taxable person’s products.

In those circumstances, it may be considered that the exclusive reason for the acquisition of the input services lies in the taxable person’s taxable activities, and that there is a direct and immediate link.

That consideration is not called into question by the possibility of complying with the legal obligation of providing a pension scheme for the taxable person’s employees by other means than setting up a fund in the form of a legally and fiscally separate entity.

(see paras 24-26, 28-29, operative part)
Article 28(2)(b) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purpose of that provision, refers to legislation concerning pensions.

Under Articles 27, 28 and 28a of that regulation, the institution of the place of residence provides the benefits in kind to the pensioners on behalf of the institution of one of the Member States competent in respect of pensions, which bears the costs. The result is that the system put in place by those articles establishes a connection between the jurisdiction to provide pensions and the obligation to bear the cost of benefits in kind in respect of sickness and maternity, since that obligation is incidental to actual jurisdiction in respect of pensions. Such a system is capable of preventing Member States whose legislation confers a right to receive benefits in respect of sickness and maternity from being penalised merely by virtue of residence in their territory.

That interpretation is, moreover, corroborated by Article 33 of Regulation No 1408/71 and Article 95 of Regulation No 574/72 laying down the procedure for implementing Regulation No 1408/71. Thus, the first of those provisions authorises the Member State responsible for payment of a pension and which applies legislation providing for deductions from pensions to cover sickness and maternity benefits to make such deductions from the pension payable by it, where it is responsible for payment of those benefits in the pensioner’s State of residence. In so far as concerns Article 95 of Regulation No 574/72, it is clear from that provision that benefits in kind in respect of sickness and maternity paid to pensioners in their State of residence are, in any event, reimbursed by the Member State responsible for payment of the pension, which thus bears the essential risk linked to the provision of sickness benefits in kind in the Member State in which the pensioner resides.

(see paras 46-48, 51, 52, 56, operative part)
EU law, as it results in particular from Directive 77/799 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums and the fundamental right to be heard, must be interpreted as not conferring on a taxpayer of a Member State either the right to be informed of a request for assistance from that Member State addressed to another Member State, in particular in order to verify the information provided by that taxpayer in his income tax return, or the right to take part in formulating the request addressed to the requested Member State, or the right to take part in examinations of witnesses organised by the requested Member State.

In tax inspection procedures, the investigation stage, during which information is collected and which includes the request for information by one tax authority to another, must be distinguished from the contentious stage, between the tax authorities and the taxpayer, which begins when the taxpayer is sent the proposed adjustment. Since the request for assistance made by the tax authorities under Directive 77/799 is part of the process of collecting information, they are not required to notify the taxpayer of this or to obtain his point of view. The same applies to the reply made by the requested tax authorities and the inquiries carried out to that end by those authorities, including the examination of witnesses.

(see paras 40-43, 46, operative part 1)
Article 3(1) of Directive 72/166 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability and Article 1(1) and (2) of Second Directive 84/5 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as meaning that compulsory insurance against civil liability in respect of the use of motor vehicles must cover compensation for non-material damage suffered by the next of kin of the deceased victims of a road traffic accident, in so far as such compensation is provided for as part of the civil liability of the insured party under national law.

In the light of the different language versions of Article 1(1) of the Second Directive, Article 1(1) of Directive 90/232 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and the protective aim of the three directives referred to above, the notion of ‘personal injuries’ covers any type of damage, in so far as compensation for such damage is provided for, as part of the civil liability of the insured, under the national law applicable in the dispute, resulting from an injury to physical integrity, which includes both physical and psychological suffering.

In so far as concerns the issue as to who is entitled to compensation for such non-material damage, the protection which must be assured under Directive 72/166 extends to anyone who is entitled, under national civil liability law, to compensation for damage caused by motor vehicles.

Consequently, the Member States are required to ensure that compensation payable, under their national civil liability law, for non-material harm suffered by the next of kin of victims of road traffic accidents is covered by compulsory insurance of at least the minimum amounts laid down in Article 1(2) of the Second Directive.

(see paras 38, 42, 46, 48, operative part 1)
With regard to the transfer to the EU pension scheme of pension rights acquired by an official in a national pension scheme, Article 11(2) of Annex VIII to the Staff Regulations, as amended by Regulation No 723/2004, must be interpreted as meaning that a Member State may determine the amount of the capital value of pension rights by means of the actuarial equivalent, the flat-rate redemption value or by means of other methods, in so far as the amount to be transferred actually represents the pension rights acquired by virtue of the previous activities of the official concerned.

It follows that the Member States enjoy broad discretion in adopting their national legislation implementing Article 11(2) of Annex VIII to the Staff Regulations. This is most particularly so in the case of the Member States’ method for determining the amount of the capital value of pension rights acquired in the national scheme and intended to be taken into account by the European Union pension scheme. That method must, however, be established in accordance with the nature of the principles and rules governing their pension system. In that regard, if the calculation of the capital value of pension rights stems logically from the nature, principles and rules of the pension system in force in a Member State, the consistency of that method with EU law cannot be called into question. It is only in the case in which the method for calculating that capital significantly diverges, to the advantage or disadvantage of the official, from the nature of the principles and rules of the national pension system that the legislation of the Member State concerned is likely to constitute a barrier to the free movement of workers guaranteed by Article 45 TFEU or to infringe the obligations provided for in Article 4(3) TEU.

The mere fact that the calculation method results in a sum to be transferred that is less than half of the contributions paid by the official and his former employer into the national pension scheme cannot, in itself, constitute evidence of such a divergence. Article 11(2) of Annex VIII to the Staff Regulations and Article 4(3) TEU must be interpreted as not precluding application of the method for calculating the capital value of pension rights acquired earlier which results in such a result.

(see paras 26, 31, 32, 36, 38-40, operative part 1, 2)
Article 2(2)(a) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a provision in a collective agreement under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

The difference in treatment based on the employees’ marital status and not expressly on their sexual orientation is still direct discrimination because only persons of different sexes may marry and homosexual employees are therefore unable to meet the condition required for obtaining the benefit claimed. Moreover, as the discrimination is direct, it may be upheld, not on the basis of a ‘legitimate aim’ within the meaning of Article 2(2)(b) of Directive 2000/78, as that provision covers only indirect discrimination, but only on one of the grounds referred to in Article 2(5) of that directive, namely public security, the maintenance of public order and the prevention of criminal offences, the protection of health and the protection of the rights and freedoms of others. Since the latter provision establishes an exception to the principle of the prohibition of discrimination, it must be interpreted strictly

(see paras 44-47, operative part)
Article 15(1) of Directive 90/619 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services (Second Life Assurance Directive), as amended by Directive 92/96 (Third Life Assurance Directive), read in conjunction with Article 31 of the latter directive, must be interpreted as precluding a national provision under which a right of cancellation lapses one year at the latest after payment of the first premium, where the policy-holder has not been informed about the right of cancellation.

Such a national provision, providing for the expiry of the policy-holder’s right to cancel the contract at a time when he has not been informed about that right runs counter to the achievement of an essential objective pursued by the second and third life assurance directives and, therefore, to the effectiveness of those directives. As insurance contracts are legally complex financial products, capable of differing considerably depending on the insurer offering those products and of involving significant and potentially very long-term financial commitments, the policy-holder is at a disadvantage vis-à-vis the insurer, a situation which is similar to that of a consumer concluding a contract away from business premises. Therefore, the insurer may not validly rely on reasons of legal certainty in order to redress a situation caused by its own failure to comply with the requirement, under EU law, to communicate a defined list of information, including, in particular, information relating to the right of the policy-holder to cancel the contract.

(see paras 26, 29, 30, 32, operative part)
Article 52 and Article 56 TFEU must be interpreted as precluding legislation of a Member State which imposes a condition of residence within the national territory for European Union citizens seeking to obtain a recreational boating licence in that Member State.

Such national legislation, which, first, discourages European Union nationals not resident in that Member State from travelling to that Member State for nautical training for the purpose of obtaining a boating licence issued by that Member State and, second, makes the services offered by nautical training schools less attractive to students not resident there because they cannot sit the examination for the award of a boating licence in that Member State or be issued such a licence, constitutes a restriction of the freedom to provide services within the meaning of Article 56(1) TFEU.

The objective of security and public policy constitutes a legitimate objective that could, in principle, warrant a restriction of the freedom to provide services. However, it is also necessary that application of that measure is such as to ensure achievement of the objective in question and that it does not go beyond what is necessary for that purpose. The condition of residency cannot be justified by that objective. Recourse to that justification presupposes the existence of a genuine and sufficiently serious threat affecting a fundamental interest of society.

Furthermore, the condition of residence which bears no relation to the training followed or the ability to sail, is not in itself appropriate for attaining the objective in question, that is, to ensure safety of navigation at sea. The objective of ensuring a better level of maritime safety may be satisfied by means less restrictive of the freedom to provide services such as, inter alia, by setting the requirements of the examination for the award of boating licences at a high level.

(see paras 17, 18, 20, 21, 23, 24, operative part)
The concept of ‘eliminating impurities’ within the meaning of Note 1 to Chapter 25 of the CN found in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation No 1549/2006, must be interpreted as covering the elimination of chemical components found in a mineral product in a crude state through natural circumstances, in so far as that elimination takes place with a view to enhancing the ability of the products at issue to fulfil their inherent intended use.

The fact that such a process may occur in natural circumstances does not rule out the possibility that it may constitute a treatment to eliminate impurities as referred to in Note 1 and does not mean that products which go through such a process must be considered mineral products in a crude state within the meaning of that note.

The concept of ‘eliminating impurities’ must be interpreted having regard to the inherent intended use of the products at issue. The decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes. Moreover, the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties.

It follows that the treatment applied to batches of decolourising earth, consisting in effecting a structural replacement of calcium ions with hydrogen ions in order to increase their adsorption capacity, which makes them suitable for purifying and decolourising edible oils, constitutes an ‘[elimination of] impurities’, in so far as that elimination takes place with a view to enhancing the ability of the decolourising earth to fulfil its inherent intended use.

(see paras 37-42, operative part 1)