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

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Case C-382/02 16 September 2004 Cimber Air A/S – Skatteministeriet 1. Article 15(6), (7) and (9) of the Sixth Council Directive must be interpreted as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate on domestic routes but are used by airlines chiefly operating for reward on international routes are exempt from VAT. 2. It is for the national courts to assess the extent of the international business and the extent of the non-international business of such companies. In doing so, they may take account of all information which indicates the relative importance of the type of operations concerned, in particular turnover. [2004] ECR I-8379 Case C-8/03 21 October 2004 Banque Bruxelles Lambert SA (BBL) – Belgian State Open-ended investment companies (SICAVs) which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) are taxable persons within the meaning of Article 4 of the Sixth Directive [...], so that, where services referred to in Article 9(2)(e) of that Directive are supplied to such SICAVs which are established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business. [2004] ECR I-10157 Case C-284/03 18 November 2004 Temco Europe SA – Belgian State Article 13(B)(b) of the Sixth Directive […] must be interpreted as meaning that transactions by which one company, through a number of contracts, simultaneously grants associated companies a licence to occupy a single property in return for a payment set essentially on the basis of the area occupied and by which the contracts, as performed, have as their essential object the making available, in a passive manner, of premises or parts of buildings in return for a payment linked to the passage of time, are transactions comprising the 'letting of immovable property' within the meaning of that provision and not the provision of a service capable of being categorised in a different way. [2004] ECR I-11237 Case C-412/03 20 January 2005 Hotel Scandic Gåsabäck AB – Riksskatteverket Articles 2, 5(6) and 6(2)(b) of the Sixth Directive […] must be interpreted as precluding a national rule whereby transactions in respect of which an actual consideration is paid are regarded as an application of goods or services for private use, even where that consideration is less than the cost price of the goods or services supplied. [2005] ECR I-743 Joined Cases C-453/02 and C-462/02 17 February 2005 Edith Linneweber – Finanzamt Gladbeck Savvas Akritidis – Finanzamt Herne-West 1. Article 13(B)(f) of the Sixth Directive [...] precludes national legislation which provides that the operation of all games of chance and gaming machines is exempt from VAT where it is carried out in licensed public casinos, while the operation of the same activity by traders other than those running casinos does not enjoy that exemption. 2. Article 13(B)(f) of the Sixth Directive has direct effect in the sense that it can be relied on by an operator of games of chance or gaming machines before national courts to prevent the application of rules of national law which are inconsistent with that provision. [2005] ECR I-1131 Judgments of the Court of Justice – 30 © 2006 IBFD Case C-428/02 3 March 2005 Fonden Marselisborg Lystbådehavn – Skatteministeriet 1. Article 13(B)(b) of the Sixth Directive [...], as amended by Directive 92/111/EEC [...], must be interpreted as meaning that the concept of letting of immovable property includes the letting of both water-based mooring berths for pleasure boats and land sites for storage of boats on port land. 2. Article 13(B)(b)(2) of the Sixth Directive [...], as amended by Directive 92/111, must be interpreted as meaning that the definition of 'vehicles' includes boats. [2005] ECR I-1527 Case C-32/03 3 March 2005 I/S Fini H – Skatteministeriet Article 4(1) to (3) of the Sixth Directive [...], as amended by Directive 95/7/EC [...], is to be interpreted as meaning that a person who has ceased an economic activity but who, because the lease contains a non-termination clause, continues to pay the rent and charges on the premises used for that activity is to be regarded as a taxable person within the meaning of that article and is entitled to deduct the VAT on the amounts thus paid, provided that there is a direct and immediate link between the payments made and the commercial activity and that the absence of any fraudulent or abusive intent has been established. [2005] ECR I-1599 Case C-172/03 3 March 2005 Wolfgang Heiser – Finanzamt Innsbruck Article 92 of the Treaty (now Article 87 EC) must be interpreted as meaning that a rule, such as that laid down by Paragraph XIV(3) of Federal Law 21/1995, as amended by Federal Law 756/1996, providing that the changeover for medical practitioners from taxable to exempt status for the purposes of VAT does not, in relation to goods that continue to be used in the business, entail the reduction of input tax already deducted that is prescribed by Article 20 of the Sixth Directive [...], must be classified as State aid. [2005] ECR I-1627 Case C-472/03 3 March 2005 Arthur Andersen & Co. Accountants c.s. – Staatssecretaris van Financiën Article 13(B)(a) of the Sixth Directive [...] must be interpreted as meaning that 'back office' activities, consisting in rendering services, for payment, to an insurance company do not constitute the performance of services relating to insurance transactions carried out by an insurance broker or an insurance agent within the meaning of that provision. [2005] ECR I-1719 Case C-33/03 10 March 2005 Commission of the European Communities – United Kingdom of Great Britain and Northern Ireland 1. By granting taxable persons the right to deduct VAT on certain supplies of fuel to non-taxable persons, contrary to the provisions of Articles 17(2)(a) and 18(1)(a) of the Sixth Directive [...], the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive; 2. The United Kingdom of Great Britain and Northern Ireland are ordered to pay the costs. [2005] ECR I-1865 Case C-25/03 21 April 2005 HE (Hans U. Hundt-Eßwein) – Finanzamt Bergisch Gladbach The Sixth Directive [...], both in its original version and following amendment by Directive 91/680/EEC [...], is to be interpreted as follows: – where a person purchases a house, or has a house built, in order to live in it with his family he is acting as a taxable
person, and is thus entitled to make deductions under Article 17 of the Sixth Directive in so far as he uses one room in that building as an office for the purposes of carrying out an economic activity, albeit an ancillary one, within the meaning of Articles 2 and 4 of the Directive and allocates that part of the building to the assets of his business; – where a marital community which does not have legal personality and does not itself carry out an economic activity within the meaning of the Sixth Directive places an order for a capital item, the co-owners forming that community are to be regarded as recipients of the transaction for the purposes of the Directive; – where spouses forming a community by marriage purchase a capital item, part of which is used exclusively for business purposes by one of the co-owning spouses, that spouse is entitled to deduct in respect of all the input VAT attributable to the share of the item which he uses for the purposes of his business, in so far as the amount deducted does not exceed the limits of the taxable person's interest in the co-ownership of the item; – Articles 18(1)(a) and 22(3) of the Sixth Directive do not require the taxable person, in order to be able to exercise the right to deduct in circumstances such as those at issue in the main proceedings, to hold an invoice issued in his name and stating the proportions of the payments and VAT corresponding to his interest in the property held in co-ownership. An invoice issued to the co-owning spouses without distinguishing between them and without reference to such apportionment is sufficient for that purpose. [2005] ECR I-3123 Case C-376/02 26 April 2005 Stichting 'Goed Wonen' – Staatssecretaris van Financiën The principles of the protection of legitimate expectations and legal certainty do not preclude a Member State, on an exceptional basis and in order to avoid the large-scale use, during the legislative process, of contrived financial arrangements intended to minimise the burden of VAT that an amending law is specifically designed to combat, from giving that law retroactive effect when, in circumstances such as those in the main proceedings, economic operators carrying out economic transactions such as those referred to by the law were warned of the impending adoption of that law and of the retroactive effect envisaged in a way that enabled them to understand the consequences of the legislative amendment planned for the transactions they carry out. When that law exempts an economic transaction in respect of immovable property previously subject to VAT, it may have the effect of revoking a VAT adjustment made on account of the exercise, when immovable property was used for a transaction regarded at that time as taxable, of a right to deduct VAT paid in respect of the supply of that immovable property. [2005] ECR I-3445 Case C-452/03 12 May 2005 RAL (Channel Islands) Ltd, RAL Ltd, RAL Services Ltd, RAL Machines Ltd – Commissioners of Customs & Excise The supply of services consisting of enabling the public to use, for consideration, slot gaming machines installed in amusement arcades established in the territory of a Member State must be regarded as constituting entertainment or similar activities within the meaning of the first indent of Article 9(2)(c) of the Sixth Directive [...], so that the place where those services are supplied is the place where they are physically carried out. [2005] ECR I-3947 Case C-465/03 26 May 2005 Kretztechnik AG – Finanzamt Linz 1. A new share issue does not constitute a transaction falling within the scope of Article 2(1) of the Sixth Directive [...], as amended by Council Directive 95/7/EC [...]. 2. Article 17(1) and (2) of the Sixth Directive [...], as amended Judgments of the Court of Justice – 31 © 2006 IBFD by Directive 95/7, confers the right to deduct in its entirety the VAT charged on the expenses incurred by a taxable person for the various supplies acquired by him in connection with a share issue, provided that all the transactions undertaken by the taxable person in the context of his economic activity constitute taxed transactions. [2005] ECR I-4357 Case C-498/03 26 May 2005 Kingscrest Associates Ltd and Montecello Ltd – Commissioners of Customs and Excise 1. The word 'charitable' in the English version of Article 13(A)(1)(g) and (h) of the Sixth Directive [...] is a concept with its own independent meaning in Community law which must be interpreted taking account of all the language versions of that Directive. 2. The meaning of 'organisations recognised as charitable by the Member State concerned' in Article 13(A)(1)(g) and (h) of the Sixth Directive [...] does not exclude private profit-making entities. 3. It is for the national court to determine, having regard, in particular, to the principles of equal treatment and fiscal neutrality, and taking account of the content of the supplies of services in question, as well as the conditions for making them, whether the recognition of a private profit-making entity, which as such does not have charitable status under domestic law, as charitable for the purposes of the exemptions under Article 13(A)(1)(g) and (h) of the Sixth Directive [...] exceeds the discretion granted by those provisions to the Member States for the purposes of such recognition. [2005] ECR I-4427 Case C-536/03 26 May 2005 da António Jorge L – Fazenda Pública It is contrary to Article 19(1) of the Sixth Directive [...] to include, in the denominator of the fraction making it possible to calculate the deductible proportion, the value of work in progress carried out by a taxable person in the course of civil construction activity, where that value does not correspond to the supply of goods or the provision of services which has already been made by the taxable person or which has given rise to statements of account of work and/or the receipt of payments on account. [2005] ECR I-4463 Case C-43/04 26 May 2005 Stadt Sundern – Finanzamt Arnsberg 1. Article 25 of the Sixth Directive [...] is to be interpreted as meaning that the common flat-rate scheme for farmers applies only to the supply of agricultural products and agricultural services, as defined in Article 25(2), and that other operations carried out by flat-rate farmers are subject to the general scheme under that Directive. 2. The fifth indent of Article 25(2) of the Sixth Directive [...], read together with Annex B thereto, is to be interpreted as meaning that the grant of hunting licences by a flat-rate farmer is not an agricultural service within the meaning of that Directive. [2005] ECR I-4491 Case C-378/02 2 June 2005 Waterschap Zeeuws Vlaanderen – Staatssecretaris van Financiën A body governed by public law which purchases capital goods as a public authority within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive [...], that is to say as a nontaxable person, and subsequently sells those goods as a taxable person, is not entitled, in respect of that sale, to a right of adjustment based on Article 20 of that Directive in order to deduct the VAT paid on the purchase of those goods. [2005] ECR I-4685
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 and 38: ules incompatible with that provisi
Page 39 and 40: the main proceedings and which sati
Page 41: ment of deductions made in respect
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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