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

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eturn for a percentage of the gross profits on the sales of cigarettes and other tobacco goods in the premises, but with no rights of possession or control being granted to the owner of the machine other than those expressly set out in the agreement between the parties, does not amount to a letting of immovable property within the meaning of that provision. [2003] ECR I-5965 Case C-149/01 19 June 2003 First Choice Holidays plc S Commissioners of Customs and Excise Article 26(2) of the Sixth Directive [...] must be interpreted as meaning that the 'total amount to be paid by the traveller' within the meaning of that provision includes the additional amount that a travel agent, acting as intermediary on behalf of a tour operator, must, in circumstances such as those described in the order for reference, pay to the tour operator on top of the price paid by the traveller and which corresponds in amount to the discount given by the travel agent to the traveller on the price of the holiday stated in the tour operator's brochure. [2003] ECR I-6289 Case C-442/01 26 June 2003 KapHag Renditefonds 35 Spreecenter Berlin-Hellersdorf 3. Tranche GbR S Finanzamt Charlottenburg A partnership which admits a partner in consideration of payment of a contribution in cash does not effect towards that person a supply of services for consideration within the meaning of Article 2(1) of the Sixth Directive [...]. [2003] ECR I-6851 Case C-305/01 26 June 2003 MKG-Kraftfahrzeuge-Factoring GmbH S Finanzamt Groß-- Gerau 1. On a proper construction of the Sixth Directive [...], a business which purchases debts, assuming the risk of the debtors' default, and which, in return, invoices its clients in respect of commission pursues an economic activity for the purposes of Articles 2 and 4 of that Directive, so that it has the status of taxable person and thus enjoys the right to deduct tax under Article 17 thereof. 2. An economic activity by which a business purchases debts, assuming the risk of the debtors' default, and, in return, invoices its clients in respect of commission, constitutes debt collection and factoring within the meaning of the final clause of Article 13(B)(d)(3) of the Sixth Directive [...] and is therefore excluded from the exemption laid down by that provision. [2003] ECR I-6729 Case C-155/01 11 September 2003 Cookies World Vertriebsgesellschaft mbH iL – Finanzlandesdirektion für Tirol The provisions of the Sixth Directive [...] preclude a measure of a Member State which provides that payment for services supplied in other Member States to a person in the first Member State is subject to VAT whereas, had the services in question been supplied within the territory of the country, the person to whom they were supplied would not have been entitled to deduction of input tax. [2003] ECR I-8785 Case C-109/02 23 October 2003 Commission of the European Communities – Federal Republic of Germany 1. By applying a reduced rate of VAT to services provided directly to the public by musical ensembles or for a concert organiser and to services provided directly to the public by soloists, but applying the standard rate of that tax to the services of soloists working for an organiser, the Federal Republic of Germany has failed to fulfil its obligations under the third subparagraph of Article 12(3)(a) of the Sixth Direc- Judgments of the Court of Justice – 26 © 2006 IBFD tive [...], as amended by Directive 1999/49/EC [...]; 2. The Federal Republic of Germany is ordered to pay the costs. [2003] ECR I-12691 Case C-45/01 6 November 2003 Christoph-Dornier-Stiftung für Klinische Psychologie – Finanzamt Gießen, 1. Psychotherapeutic treatment given in an out-patient facility of a foundation governed by private law by qualified psychologists who are not doctors is not an activity closely related to hospital or medical care within the meaning of Article 13(A)(1)(b) of the Sixth Directive [...], except where such treatment is actually given as a service ancillary to the hospital or medical care received by the patients in question and constituting the principal service. However, the term medical care in that provision must be interpreted as covering all provision of medical care envisaged in letter (c) of the same provision, including services provided by persons who are not doctors but who give paramedical services, such as psychotherapeutic treatment given by qualified psychologists. 2. Recognition of an establishment for the purposes of Article 13(A)(1)(b) of the Sixth Directive [...] does not presuppose a formal recognition procedure; nor must such recognition necessarily derive from national tax law provisions. Where the national rules pertaining to recognition contain restrictions which exceed the limits of the discretion allowed to Member States under that provision, it is for the national court to determine, in the light of all the relevant facts, whether a taxable person must none the less be regarded as an other duly recognised establishment of a similar nature within the meaning of that provision. 3. Since the exemption envisaged in Article 13(A)(1)(c) of the Sixth Directive is not dependent on the legal form of the taxable person providing the medical or paramedical services referred to in that provision, psychotherapeutic treatment provided by a foundation governed by private law and given by psychotherapists employed by the foundation may benefit from that exemption. 4. In circumstances such as those in the main proceedings, Article 13(A)(1)(b) and (c) of the Sixth Directive [...] may be relied on by a taxable person before a national court in order to contest the application of rules of national law which are incompatible with that provision. [2003] ECR I-12911 Joined Cases C-78/02, C-79/02 and C-80/02 6 November 2003 Maria Karageorgou, Katina Petrova and Loukas Vlachos – Elliniko Dimosio 1. The amount mentioned as VAT on the invoice drawn up by a person providing services to the State may not be classified as VAT where that person erroneous-ly believes that he is providing those services as a self-employed person whilst in reality there is an employer-employee relationship. 2. Article 21(1)(c) of the Sixth Directive [...] does not preclude reimbursement of an amount mentioned in error by way of VAT on an invoice or other document serving as invoice where the services at issue are not subject to VAT and the amount invoiced cannot therefore be classified as VAT. [2003] ECR I-13295 Case C-8/01 20 November 2003 Assurandør-Societetet, acting on behalf of Taksatorringen – Skatteministeriet 1. Article 13(B)(a) of the Sixth Directive [...] must be construed as meaning that motor vehicle damage assessments carried out, on behalf of its members, by an association whose members are insurance companies are neither insurance transactions nor services related to insurance transactions that are performed by insurance brokers or insurance agents within the meaning of that provision. 2. Article 13(A)(1)(f) of the Sixth Directive [...] must be construed as meaning that the grant of exemption from VAT under that provision to an association such as that in issue in
the main proceedings and which satisfies all of the other conditions of that provision must be refused if there is a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition. 3. National legislation which allows a temporary exemption to be granted where doubt exists as to whether that exemption, such as that in the case in the main proceedings, is liable at a later date to give rise to distortions of competition is compatible with Article 13(A)(1)(f) of the Sixth Directive, provided that the exemption is renewed only for as long as the person concerned satisfies the conditions of that provision. 4. The fact that large insurance companies have the assessments of damage to motor vehicles carried out by their own experts, thereby avoiding liability for VAT in respect of the provision of such services, is not such as to have any bearing on the answers to be given to the first three questions. [2003] ECR I-13711 Case C-212/01 20 November 2003 Margarete Unterpertinger – Pensionsversicherungsanstalt der Arbeiter Article 13(A)(1)(c) of the Sixth Directive [...], is to be interpreted as meaning that the exemption from VAT under that provision does not apply to the services of a doctor consisting of making an expert report on a person's state of health in order to support or exclude a claim for payment of a disability pension. The fact that the medical expert was instructed by a court or pension insurance institution is irrelevant in that respect. [2003] ECR I-13859 Case C-307/01 20 November 2003 Peter d'Ambrumenil, Dispute Resolution Services Ltd – Commissioners of Customs and Excise 1. Article 13(A)(1)(c) of the Sixth Directive [...], is to be interpreted as meaning that the exemption from VAT under that provision applies to medical services consisting of: – conducting medical examinations of individuals for employers or insurance companies, – the taking of blood or other bodily samples to test for the presence of viruses, infections or other diseases on behalf of employers or insurers, or – certification of medical fitness, for example, as to fitness to travel, where those services are intended principally to protect the health of the person concerned. 2. The said exemption does not apply to the following services, performed in the exercise of the medical profession: – giving certificates as to a person's medical condition for purposes such as entitlement to a war pension, – medical examinations conducted with a view to the preparation of an expert medical report regarding issues of liability and the quantification of damages for individuals contemplating personal injury litigation, – the preparation of medical reports following examinations referred to in the previous indent and medical reports based on medical notes without conducting a medical examination, – medical examinations conducted with a view to the preparation of expert medical reports regarding professional medical negligence for individuals contemplating litigation, – the preparation of medical reports following examinations referred to in the previous indent and medical reports based on medical notes without conducting a medical examination. [2003] ECR I-13989 Case C-497/01 27 November 2003 Zita Modes Sàrl – Administration de l'enregistrement et des domaines 1. Article 5(8) of the Sixth Directive [...], as amended by Directive 95/7/EC [...], must be interpreted as meaning that when a Member State has made use of the option in the first sentence of that paragraph to consider that for the purposes of Judgments of the Court of Justice – 27 © 2006 IBFD VAT no supply of goods has taken place in the event of a transfer of a totality of assets, that no-supply rule applies S without prejudice to use of the possibility of restricting its application in the circumstances laid down in the second sentence of the same paragraph S to any transfer of a business or an independent part of an undertaking, including tangible elements and, as the case may be, intangible elements which, together, constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity. The transferee must however intend to operate the business or the part of the undertaking transferred and not simply to immediately liquidate the activity concerned and sell the stock, if any. 2. When a Member State has made use of the option in the first sentence of Article 5(8) of the Sixth Directive [...], as amended by Directive 95/7, to consider that for the purposes of VAT no supply of goods has taken place in the event of a transfer of a totality of assets, the restriction by a Member State of the application of that no-supply rule to transfers of a totality of assets where the transferee holds the authorisation for pursuit of the economic activity which that totality enables to be carried on infringes that provision. [2003] ECR I-14393 Case C-395/02 3 March 2004 Transport Service NV – Belgian State (intervener: Bea Cars BVBA) The principle of the neutrality in the common system of VAT does not preclude a Member State from recovering VAT, after the event, from a taxable person who has wrongly invoiced a supply of goods as being exempt from VAT. It is irrelevant, in that regard, whether the VAT on the later sale of the goods concerned to the end user has been paid to the public purse or not. [2004] ECR I-1991 Case C-90/02 1 April 2004 Gerhard Bockemühl – Finanzamt Gummersbach A taxable person who is liable, as the recipient of services, for the VAT relating thereto, in accordance with Article 21(1) of the Sixth Directive [...], as amended by Council Directive 91/680/EEC [...] and by Council Directive 92/111/EEC [...], is not obliged to be in possession of an invoice drawn up in accordance with Article 22(3) of that Directive in order to be able to exercise his right to deduct. [2004] ECR I-3303 Case C-320/02 1 April 2004 Förvaltnings AB Stenholmen – Riksskatteverket 1. Article 26a of the Sixth Directive [...], as amended by Council Directive 94/5/EC [...], must be interpreted as meaning that live animals may be considered to be second-hand goods within the meaning of this provision. 2. Thus an animal bought from a private individual (other than the breeder) which is sold on after training for a specific use may be considered to be second-hand goods. [2004] ECR I-3509 Case C-17/01 29 April 2004 Walter Sudholz – Finanzamt Sulingen 1. Consideration of the procedure prior to the adoption of Coun- 1) cil Decision 2000/186/EC of 28 February 2000 authorising the Federal Republic of Germany to apply measures derogating from Articles 6 and 17 of the Sixth Directive [...] has disclosed no irregularity such as to affect the validity of that decision. 2. Article 3 of Decision 2000/186/EC is invalid in that it provides for the authorisation granted by the Council of the European Union to the Federal Republic of Germany to have retroactive effect from 1 April 1999. 3 Article 2 of Decision 2000/186 meets the substantive require-
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 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: ules incompatible with that provisi
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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