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

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Case C-142/99 14 November 2000 Floridienne SA, Berginvest SA S Belgian State Article 19 of the Sixth Directive [...] is to be interpreted as meaning that the following must be excluded from the denominator of the fraction used to calculate the deductible proportions: S share dividends paid by its subsidiaries to a holding company which is a taxable person in respect of other activities and which supplies management services to those subsidiaries, and S interest paid by the subsidiaries to the holding company on loans it has made to them, where the loan transactions do not constitute, for the purposes of Article 4(2) of the Sixth Directive, an economic activity of the holding company. [2000] ECR I-9567 Case C-213/99 7 December 2000 José Teodoro de Andrade S Director da Alfândega de Leixões 1. Article 53 of Regulation (EEC) No. 2913/92 does not preclude the automatic application, without prior notification, of a procedure such as that established by Portuguese legislation, which provides for goods to be put up for sale where the statutory time-limits for making a declaration for release for free circulation or an application for another customs-approved treatment or use for the goods have expired. 2. Use of a procedure providing either for such goods to be put up for sale or for an ad valorem surcharge to be levied in order to regularise the situation of the goods is not in itself contrary to the principle of proportionality. It is for the national court to determine whether the surcharge applied in the present case complies with that principle. 3. Article 6(3) and Article 243 of Regulation No. 2913/92 do not preclude use of a procedure, such as that at issue in the main proceedings, which does not provide for interested parties to receive prior notification. 4. A surcharge intended to penalise a failure to comply with customs formalities cannot be subject to VAT. [2000] ECR I-11083 Case C-446/98 14 December 2000 Câmara Municipal do Porto S Fazenda Pública 1. The letting of spaces for the parking of vehicles is an activity which, where it is carried on by a body governed by public law, is carried on by that body as a public authority within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive [...], if it is carried on under a special legal regime applicable to bodies governed by public law. That is the case where the pursuit of the activity involves the use of public powers. 2. The third subparagraph of Article 4(5) of the Sixth Directive [...] must be interpreted as meaning that bodies governed by public law are not necessarily regarded as taxable persons in respect of the activities they engage in which are not negligible. Only if those bodies engage in an activity or perform a transaction listed in Annex D to that Directive may the criterion of the negligible scale of that activity or transaction be taken into account with the aim, if national law makes use of the option provided for in the third subparagraph of Article 4(5) of the Sixth Directive [...], of excluding them from being taxable persons for VAT purposes where their activities are negligible. 3. The Finance Minister of a Member State may be authorised by a national law to define what is covered by, first, the concept of significant distortions of competition within the meaning of the second subparagraph of Article 4(5) of the Sixth Directive [...] and, second, the concept of negligible activities within the meaning of the third subparagraph of Article 4(5) of that Directive, provided that his decisions of application may be reviewed by the national courts. 4. The fourth subparagraph of Article 4(5) of the Sixth Directive [...] must be interpreted as meaning that the absence of an exemption for the letting of spaces for the parking of vehicles, which follows from Article 13(B)(b) of that Directive, does not prevent bodies governed by public law which carry out that Judgments of the Court of Justice – 20 © 2006 IBFD activity from being treated as non-taxable persons for VAT in respect of it, where the conditions stated in the first and second subparagraphs are satisfied. 5. A national court is entitled, and in certain cases obliged, to refer to the Court, even of its own motion, a question concerning the interpretation of Directive 77/388, if it considers that a decision on the point by the Court is necessary for it to give judgment, and once it has made that reference it is bound by the Court's decision when it gives final judgment in the main proceedings. [2000] ECR I-11435 Case C-76/99 11 January 2001 Commission of the European Communities – French Republic 1. By levying VAT on fixed allowances for the transmission of samples for the purpose of medical analysis, the French Republic has failed to fulfil its obligations under Article 13(A)(1)(b) of the Sixth Directive [...]; 2. The French Republic is ordered to pay the costs. [2001] ECR I-249 Case C-150/99 18 January 2001 Stockholm Lindöpark S Svenska Staten 1. The provisions of Article 13(A)(1)(m) and 13(B)(b) of the Sixth Directive [...], preclude national legislation from providing for a general exemption from VAT for the supply of premises and other facilities and the related supply of accessories or other arrangements for the practice of sport or physical education, including services supplied by profit-making organisations. 2. The provisions of Article 17(1) and (2) of Directive 77/388, read together with those of Articles 2, 6(1) and 13(B)(b), are sufficiently clear, precise and unconditional for an individual to rely on them as against a Member State before a national court. 3. The implementation of a general exemption from VAT for the supply of premises and other facilities and for the related supply of accessories or other arrangements for the purposes of the practice of sport or physical education, where no such exemption is to be found in Article 13 of Directive 77/388, constitutes a serious breach of Community law that can render a Member State liable in damages. [2001] ECR I-493 Case C-83/99 18 January 2001 Commission of the European Communities – Kingdom of Spain 1. By applying a reduced rate of VAT to the supply of services consisting in making road infrastructure available to users on payment of a toll, the Kingdom of Spain has failed to fulfil its obligations under Article 12(3)(a) of the Sixth Directive [...], as amended by Directive 96/95/EC; 2. The Kingdom of Spain is ordered to pay the costs. [2001] ECR I-445 Case C-429/97 25 January 2001 Commission of the European Communities – French Republic 1. By refusing to refund to taxable persons established in a Member State other than the French Republic, who are holders of a main contract for a composite supply of services relating to waste disposal, the VAT which they have been required to pay to the French State in cases where they have subcontracted part of the work covered by such a contract to a taxable person established in France, the French Republic has failed to fulfil its obligations under the Eighth Directive [...], in particular Article 2 thereof; 2. The remainder of the application is dismissed; 3. The French Republic is ordered to pay the costs. [2001] ECR I-637
Case T-36/00 7 February 2001 Sonia Marion Elder and Robert Dale Elder S Commission of the European Union 1. The Commission shall submit before the Court, within two weeks after notification of this order, the minutes of the VAT Committee, access to which has been refused to appellants. 2. Parties will be notified of this order; 3. The costs are reserved. [2001] ECR II-607 Case C-408/98 22 February 2001 Abbey National plc S Commissioners of Customs and Excise Where a Member State has made use of the option in Article 5(8) of the Sixth Directive [...], so that the transfer of a totality of assets or part thereof is regarded as not being a supply of goods, the costs incurred by the transferor for services acquired in order to effect that transfer form part of that taxable person's overheads and thus in principle have a direct and immediate link with the whole of his economic activity. If, therefore, the transferor effects both transactions in respect of which VAT is deductible and transactions in respect of which it is not, it follows from Article 17(5) of the Sixth Directive [...] that he may deduct only that proportion of the VAT which is attributable to the former transactions. However, if the various services acquired by the transferor in order to effect the transfer have a direct and immediate link with a clearly defined part of his economic activities, so that the costs of those services form part of the overheads of that part of the business, and all the transactions relating to that part of the business are subject to VAT, he may deduct all the VAT charged on his costs of acquiring those services. [2001] ECR I-1361 Case C-276/98 8 March 2001 Commission of the European Communities – Portuguese Republic 1. By maintaining in force a reduced rate of VAT of 5% applicable to transactions concerning the goods listed in points 1.8, 2.11 and 3.8 of List I annexed to the Portuguese VAT Code, respectively covering wines, machines and equipment designed for research into alternative forms of energy, and agricultural tools and utensils, the Portuguese Republic has failed to fulfil its obligations under Articles 12 and 28(2) of the Sixth Directive [...], as amended by Directive 92/77/EEC [...]; 1) 2. The remainder of the action is dismissed; 3. The Portuguese Republic is ordered to pay the costs. [2001] ECR I-1699 1) The Commission accused the Portuguese Republic of infringing Articles 12(3) and 28(2) of the Sixth Directive by taxing tolls for crossing the toll bridge over the Tagus in Lisbon at a reduced VAT rate of 5% rather than the normal rate in Portugal of 17%. However, the Commission has not brought before the Court sufficient evidence for it to establish the existence of the alleged failure to fulfil obligations. Indeed, it has not been established that the service in question was subject to VAT. Case C-415/98 8 March 2001 Laszlo Bakcsi S Finanzamt Fürstenfeldbruck 1. A taxable person who acquires a capital item in order to use it for both business and private purposes may retain it wholly within his private assets and thereby exclude it entirely from the system of VAT. 2. Where a taxable person has chosen to incorporate wholly into his business assets a capital item which he uses for both business and private purposes, the sale of that item is subject in full to VAT, in accordance with Articles 2(1) and 11(A)(1)(a) of the Sixth Directive [...]. Where a taxable person assigns to his business assets only the part of the item used for business purposes, only the sale of that part is subject to VAT. The fact that the item was purchased second-hand from a non-taxable person and that the taxable person was therefore not authorised to deduct the residual VAT on that item is irrelevant in this regard. However, if the taxable person withdraws such an item from his business, the VAT on that item must be considered not to be deductible for the purposes of Article 5(6) of the Sixth Judgments of the Court of Justice – 21 © 2006 IBFD Directive and no tax may therefore be levied on that withdrawal under that provision. If the taxable person subsequently sells the item, he will be carrying out that transaction in a private capacity and the transaction will therefore be excluded from the system of VAT. [2001] ECR I-1831 Case C-240/99 8 March 2001 Försäkringsaktiebolaget Skandia (publ) A commitment assumed by an insurance company to carry out, in return for remuneration at market rates, the business activities of another insurance company, which is its 100% subsidiary and which would continue to conclude insurance contracts in its own name, does not constitute an insurance transaction within the meaning of Article 13(B)(a) of the Sixth Directive [...]. [2001] ECR I-1951 Case C-108/00 15 March 2001 Syndicat des Producteurs Indépendants (SPI) S Ministère de l' economie, des finances et de l'industrie (France) The second indent of Article 9(2)(e) of the Sixth Directive [...] must be interpreted as applying not only to advertising services supplied directly and invoiced by the supplier to a taxable advertiser but also to services supplied indirectly to the advertiser and invoiced to a third party who in turn invoices them to the advertiser. [2001] ECR I-2361 Case C-404/99 29 March 2001 Commission of the European Communities – French Republic 1. By authorising, under certain conditions, the exclusion from the taxable amount for the purposes of VAT of the compulsory price supplements claimed by certain taxable persons by way of remuneration for the service provided ('service charges'), the French Republic has failed to fulfil its obligations under Articles 2(1) and 11(A)(1)(a) of the Sixth Directive [...]; 2. The French Republic is ordered to pay the costs. [2001] ECR I-2667 Case C-481/98 3 May 2001 Commission of the European Communities – French Republic 1) 1. The action is dismissed; 2. The Commission of the European Community is ordered to pay the costs; 3. The Republic of Finland is ordered to bear its own costs. [2001] ECR I-3369 1) The Commission claimed that by applying a rate of 2.1% on medicinal products reimbursable under the social security system, and of 5.5% on other medicinal products, France had failed to fulfill its obligations under Article 12 of the Sixth Directive. Case C-34/99 15 May 2001 Primback Ltd S Commissioners of Customs and Excise On a proper construction of Article 11(A)(1)(a) of the Sixth Directive [...], where a supply of goods for consideration has the following features: S a retail trader sells goods in return for payment of the advertised price which he invoices to the purchaser and which does not vary according to whether the customer pays in cash or by way of credit; S should the purchaser so request, the acquisition of the goods is financed by the provision to him of interest-free credit by a finance company distinct from the seller; S the finance company gives an undertaking to the purchaser that it will pay to the seller on the purchaser's behalf the sales price advertised and invoiced by the seller; S the finance company in fact pays to the seller, pursuant to agreements concluded with the seller but of which the purchaser is unaware, a sum less than the price advertised and
Page 1 and 2: International VAT Monitor European
Page 3 and 4: Table of Contents - 1 Case Date Par
Page 13 and 14: Cases 9/70, 20/70 and 23/70 6 Octob
Page 15 and 16: proposed to construct are specifica
Page 17 and 18: EEC Treaty; 1) 2. For the rest , th
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: S they grant taxable persons establ
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
Page 63 and 64: Preliminary Questions: Abbey Nation
Page 65 and 66: Société Monte Dei Paschi Di Siena

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