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On December 22, 2016 the OECD released an update of its Report on BEPS Action 4 - Limiting Base Erosion Involving Interest Deductions and Other Financial Payments of which the first edition was released on October 5, 2016. The updated version which was released on December 22, 2016 includes further guidance on two areas:
· the design and operation of the group ratio rule; and
· approaches to deal with risks posed by the banking and insurance sectors.
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On December 21, 2016 the Court of Justice of the European Union (CJEU) judged in Case C‑547/15, Interservice d.o.o.Koper versus Sándor Horváth (ECLI:EU:C:2016:983).
This request for a preliminary ruling concerns the interpretation of Article 96(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13) (‘the Customs Code’).
The request has been made in proceedings between Interservice d.o.o. Koper and Mr Sándor Horváth concerning the recovery of customs duties paid by Interservice as ‘principal’ to the Slovenian customs authorities following the removal from customs supervision of goods transported under the external Community transit procedure by Mr Horváth as subcontractor.
Must Article 96(2) of the Customs Code be interpreted as meaning that not only the person who enters into a transport agreement with the seller for the transport of the goods (the contractual or main carrier), but also the person who carries out the transport, in full or in part, on the basis of another transport agreement concluded with the contractual or main carrier (the transport subcontractor), is to be regarded as a carrier of the goods?
If the first question is answered in the affirmative, must Article 96(2) of the Customs Code be interpreted as meaning that, in a case such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed?’
Read more: CJEU judges in Case C-547/15, Interservice (Free movement of goods – Customs union)
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On December 21, 2016 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Wathelet in Case C‑633/15, London Borough of Ealing versus Commissioners for Her Majesty’s Revenue and Customs (ECLI:EU:C:2016:999) was published.
The request for a preliminary ruling concerns the interpretation of point (d) of the first paragraph and the second paragraph of Article 133 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
This request has been made in proceedings between the London Borough of Ealing and the Commissioners for Her Majesty’s Revenue and Customs (the United Kingdom tax and customs authority; ‘the tax authority’) concerning the chargeability of value added tax (VAT) on entrance fees to sports facilities received by the London Borough of Ealing.
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On December 21, 2016 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Kokott in Case C‑699/15, The Commissioners for Her Majesty’s Revenue & Customs versus Brockenhurst College (ECLI:EU:C:2016:991) was published.
In the present case, the Court is asked to rule on the tax exemption provision in Article 132(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’). It is necessary to clarify the scope of the exemption, as it applies not only to precisely listed services, but also exempts the supply of ‘closely related’ services and goods (‘supplies’) from value added tax.
This technique for extending the exemption to closely related supplies is used by the EU legislature also in connection with other exemptions (for example, Article 132(1)(b) and (n) of the VAT Directive). However, here too there are difficulties in differentiating supplies that are still closely related from supplies that are no longer closely related. There is already some case-law of the Court on that question of differentiation. However, the Court has not yet concerned itself in detail with the question whether the exemption can also apply to supplies to external third parties (that is to say, not to the students to be taught (or patients to be treated) and also not to other training establishments that are exempt from tax). This concerns cases in which the taxable person (for example the school or the hospital) makes supplies to those third parties that are to some extent related to its exempt supplies (the education or the hospital care).
The question of the scope of the exemption of these ‘closely related’ supplies is raised in the present case on the basis of a ‘training restaurant’ or ‘training theatre’ at Brockenhurst College (‘the College’). The College provides through trainees, in the course of their practical training, restaurant services or theatre services to third parties in return for payment and would like to have that income treated as consideration for a supply that is exempt from tax under Article 132(1)(i) of the VAT Directive. The question can be raised, in all its variants, in connection with practical training. In Germany, for example, the owner of a hairdressing school attempted to treat the haircuts given by its trainees to customers — who had to pay a reduced price for them — as exempt from tax. According to the Advocate General there are almost no limits to the possible cases here. The same question would also arise if — as the Commission stated at the hearing — a baker training establishment allowed its trainees to sell bread and bread rolls in the course of their training or an industrial cleaning academy gave its trainees experience at the premises of paying customers in the course of their training.
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On December 21, 2016 the Court of Justice of the European Union (CJEU) judged in joined Cases C‑164/15 P (European Commission vs Aer Lingus Ltd) and C‑165/15 P (European Commission vs Ryanair Designated Activity Company) (ECLI:EU:C:2016:990).
Ireland was an intervener at first instance in Cases C‑164/15 P and C‑165/15 P and Aer Lingus Ltd was an intervener at first instance in Cases C‑165/15 P.
By its appeals, the European Commission seeks to have set aside, first, in Case C‑164/15 P, the judgment of the General Court of the European Union of 5 February 2015, Aer Lingus v Commission (T‑473/12, not published, ‘the Aer Lingus judgment’, EU:T:2015:78) and, second, in Case C‑165/15 P, the judgment of the General Court of the European Union of 5 February 2015, Ryanair v Commission (T‑500/12, not published, ‘the Ryanair judgment’, EU:T:2015:73) (together, ‘the judgments under appeal’), by which that court allowed in part the actions brought by Aer Lingus Ltd and Ryanair Designated Activity Company, formerly Ryanair Ltd (‘Ryanair’), respectively, and annulled Article 4 of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel rates implemented by Ireland (OJ 2013 L 119, p. 30) (‘the decision at issue’), in so far as that article ordered that the aid be recovered from the beneficiaries in an amount which was set at EUR 8 per passenger in recital 70 of that decision.
By their cross-appeals, Aer Lingus and Ryanair also seek, respectively, the setting aside of the Aer Lingus judgment and the Ryanair judgment.
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