European Court of Justice VAT cases 2006-3 - empcom.gov.in

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Table of Contents – 10 © 2006 IBFD
Cases 9/70, 20/70 and 23/70 6 October 1970, 21 October 1970 and 21 October 1970 Franz Grad S Finanzamt Traunstein Transports Lesage & Cie S Hauptzollamt Freiburg Erich Haselhorst S Finanzamt Düsseldorf-Altstadt 1. The second paragraph of Article 4 of the Council Decision of 1) 13 May 1965 , which prohibits the Member States from applying the common system of turnover tax concurrently with specific taxes levied instead of turnover tax, is capable, in conjunction with the provisions of the Council Directives of 11 April 1967 and 9 December 1969, of producing direct effects in the legal relationships between the Member States to which the decision is addressed and those subject to their jurisdiction and of creating for the latter the right to invoke these provisions before the courts; 2. The prohibition on applying the common system of turnover tax concurrently with specific taxes becomes effective on the date laid down in the Third Council Directive of 9 December 1969, namely on 1 January 1972; 3. A tax with the features described by the Finanzgericht which is not imposed upon commercial transactions but merely because goods are carried by road and the basis of assessment of which is not consideration for a service but the physical load expressed in metric tonnes/kilometres to which the roads are subjected through the activity taxed, does not correspond to the usual form of turnover tax within the meaning of the second paragraph of Article 4 of the decision of 13 May 1965. [1970] ECR 825, [1970] ECR 861 and [1970] ECR 881 1) The first paragraph of Article 4 of Council decision of 13 May 1965 (No. 65/271/EEC) provided that once a common system of turnover tax has been adopted by the Council and brought into force in the Member States, the latter shall apply that system, in a manner to be determined, to the carriage of goods by rail, road and inland waterway. The second paragraph of that article provided that this common system of turnover tax shall, in so far as the carriage of goods by road, by rail and by inland waterway was subject to specific taxes instead of to the turnover tax, replace such specific taxes. Case 111/75 20 May 1976 Impresa Costruzioni Comm. Quirino Mazzalai S Ferrovia del Renon Article 6(4) of the Second Directive [...] cannot be interpreted as permitting the moment when the service is provided to be identified with that when the invoice is issued or a payment on account is made if these transactions take place after the service has been carried out. [1976] ECR 657 Case 51/76 1 February 1977 Verbond van Nederlandse Ondernemingen S Inspecteur der Invoerrechten en Accijnzen 1. The words 'capital goods' appearing in the third indent of Article 17 of the Second Directive [...], mean goods used for the purposes of some business activity and distinguishable by their durable nature and their value and such that the acquisition costs are not normally treated as current expenditure, but are written off over several years. 2. The Member States have a certain margin of discretion as regards the requirements which must be satisfied concerning the durability and value of the goods, together with the rules applicable for writing off, provided that they pay due regard to the existence of an essential difference between capital goods and the other goods used in the management and in the day to day running of undertakings. 3. In the case of goods purchased in 1972 and intended to be used for the purposes of the undertaking which do not belong to the category of capital goods within the meaning of Article 17 of the Directive, it is the duty of the national court before which the rule as to immediate deduction set out in Article 11 of the Directive is invoked to take those facts into account in so far as a national implementing measure falls outside the limits of the margin of the discretion left to the Member States. [1977] ECR 113 Judgments of the Court of Justice – 1 © 2006 IBFD Case 126/78 12 June 1979 NV Nederlandse Spoorwegen S Staatssecretaris van Financiën 1. If a carrier has undertaken, in addition to the transport of the goods, to collect the price of the goods before delivering them to the consignee (cash-on-delivery system) the collection of that price is a service ancillary to the transport within the meaning of Annex b, item 5, to the Second Directive [...]. 2. For the purposes of the application of VAT Member States are not empowered to treat an ancillary service such as the collection of the cash-on-delivery price separately from the service of the transport of goods. 3. The national court must take account of the combined provisions of Article 6(2) of the Second Directive and of Annex b, item 5, thereto. [1979] ECR 2041 Cases 181/78 and 229/78 12 June 1979 Ketelhandel P. van Paassen bv S Staatssecretaris van Financiën/Inspecteur der invoerrechten en accijnzen Denkavit Dienstbetoon BV S Minister van Financiën A Member State has adopted a system such as that referred to in the fourth paragraph of point 2 'regarding Article 4' of Annex A to the Second Directive if it has laid down in its legislation that turnover tax shall be levied inter alia on the supply of goods and services by undertakings, after entering into the consultations to which reference is made in Article 16 of the Directive, even though it has not defined the concept of an undertaking otherwise than as 'any person who independently carries on business'. [1979] ECR 2063 Case 8/81 19 January 1982 Ursula Becker – Finanzamt Münster-Innenstadt As from 1 January 1979, it was possible for the provision concerning the exemption from turnover tax of transactions consisting of the negotiation of credit contained in Article 13(B)(d)(1) of the Sixth Directive [...] to be relied upon, in the absence of the implementation of that Directive, by a credit negotiator where he had refrained from passing that tax on to persons following him in the chain of supply, and the state could not claim, as against him, that it had failed to implement the Directive. [1982] ECR 53 Case 154/80 5 February 1981 Cooperative Vereniging 'Cooperatieve Aardappelenbewaarplaats GA' S Staatssecretaris van Financiën There can be no question of any consideration within the meaning of the opening words of subparagraph (a) of Article 8 of the Second Directive [...] in the case of a cooperative association running a warehouse for the storage of goods which does not impose any storage charge on its members for the service provided. [1981] ECR 445 Case 89/81 1 April 1982 Hong Kong Trade Development Council S Staatssecretaris van Financiën A person who habitually provides services for traders, in all cases free of charge, cannot be regarded as a taxable person within the meaning of Article 4 of the Second Directive [...]. [1982] ECR 1277 Case 15/81 5 May 1982 Gaston Schul Douane Expediteur BV S Inspecteur der Invoerrechten en Accijnzen Roosendaal 1. VAT which a Member State levies on the importation of products from another Member State supplied by a private person where no such tax is levied on the supply of similar products by a private person within the territory of the Member State of importation does not constitute a charge having an effect
Page 1 and 2: International VAT Monitor European
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Page 15 and 16: proposed to construct are specifica
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Page 19 and 20: movable property for another purpos
Page 21 and 22: from the outset to remove the conse
Page 23 and 24: transport of those products from a
Page 25 and 26: and c. a customer purchases such an
Page 27 and 28: court the validity of provisions in
Page 29 and 30: not been adopted. [1998] ECR I-8153
Page 31 and 32: S they grant taxable persons establ
Page 33 and 34: Case T-36/00 7 February 2001 Sonia
Page 35 and 36: ply of goods' of the grant, transfe
Page 37 and 38: ules incompatible with that provisi
Page 39 and 40: the main proceedings and which sati
Page 41 and 42: ment of deductions made in respect
Page 43 and 44: person, and is thus entitled to mak
Page 45 and 46: chaser to use the customised softwa
Page 47 and 48: within the category of services ref
Page 49 and 50: able to force majeure or to an acci
Page 51 and 52: Taxable persons Index of Topics - 1
Page 53 and 54: Place of supply Index of Topics - 3
Page 55 and 56: Tax rates Index of Topics - 5 (Arti
Page 57 and 58: Exemptions - Miscellaneous exemptio
Page 59 and 60: Refund of input tax Index of Topics
Page 61 and 62: Charges characterized as turnover t
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Preliminary Questions: Abbey Nation
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Société Monte Dei Paschi Di Siena
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