Jul 2

 

Hearing in joined Cases T-760/15 (Netherlands v Commission) and T-636/16 (Starbucks and Starbucks Manufacturing Emea v Commission) (State Aid)

 

 

 

 

Jul 4

 

CJEU expected to deliver judgment in Case C-28/17, NN (Freedom of establishment – Entitlement to deduct losses from a permanent establishment at Tax Group level)

 

Questions referred for a preliminary ruling:

(1)   What factors are to be taken into account in assessing whether resident companies in a situation such as the present one are subject to an “equivalent condition” within the meaning of paragraph 20 of the judgment of 6 September 2012, Philips Electronics UK, C‑18/11, EU:C:2012:532, with respect to the setting off of losses, to that applicable to branches of non-resident companies?

(2)   If it is presumed that the Danish tax rules do not contain a difference of treatment as dealt with in the judgment of 6 September 2012, Philips Electronics UK, C‑18/11, EU:C:2012:532, does a prohibition of setting off similar to that described — in a case in which the loss in the non-resident company’s permanent establishment is also subject to the host country’s power of taxation — in itself constitute a restriction of the right of freedom of establishment under Article 49 TFEU, which has to be justified by reference to overriding reasons of the public interest?

3)     If so, can such a restriction then be justified by the interest in preventing the double use of losses, the objective of ensuring a balanced distribution of powers of taxation between the Member States, or a combination of both?

4)     If so, is such a restriction proportionate?

 

The opinion in this case as delivered on February 21, 2018 by Advocate General Campos Sánchez-Bordona can be found here

 

 

 

 

Jul 5

 

CJEU expected to deliver judgment in Case C-544/16, Marcandi (VAT – Issue of credits that can be used to place bids in online penny auctions and whose value may be credited towards the price of goods purchased directly from the company running the auctions)

 

Questions referred for a preliminary ruling:

(1)   On the correct interpretation of [A]rticles 2(1), 24, 62, 63, 65, and 73 of [Directive 2006/112], and in circumstances such as those in the main proceedings:

(a)   is the issue of Credits to users, by Madbid, in return for a money payment:

(i)    a “preliminary transaction” outside the scope of [A]rticle 2(1), of the sort identified by the Court in [the judgment of 16 December 2010, Macdonald Resorts (C‑270/09, EU:C:2010:780)], at paragraphs 23 [to] 42; or

(ii)   a supply of services by Madbid within the meaning of [A]rticle 2(1)(c), namely the grant of a right to participate in online auctions;

(b)   if the grant of a right to participate in online auctions is a supply of services by Madbid, then is it a supply made “for consideration” within the meaning of [A]rticle 2(1)(c), namely the payment for it (i.e. the money received by Madbid from a user in return for Credits);

(c)    is the answer to (b) different if the payment for the Credits also serves as an entitlement for the user to acquire goods to the same value in the event of the user not succeeding in the auction;

(d)   if Madbid does not make a supply of services for consideration when it issues Credits to its users in return for a money payment, does it make such a supply at any other time;

and what principles should be applied in determining the answer to those questions?

(2)   On the correct interpretation of [A]rticles 2(1), 14, 62, 63, 65, 73 and 79(b) of [Directive 2006/112] what, in circumstances such as those in the main proceedings, is the consideration obtained by Madbid in return for the supplies of goods that it makes to users, for the purposes of [A]rticles 2(1)(a) and 73? In particular, and taking into account the answer to Question 1:

(a)   is the money paid by a user to Madbid for Credits a “payment … on account” for a supply of goods within the scope of [A]rticle 65, so that VAT is “chargeable” on receipt of that payment, and such that the payment received by Madbid from the user is consideration for a supply of goods;

(b)   if a user buys goods through the Buy Now or Earned Discount features, is the value of Credits used in placing bids in auctions and, where the bid is unsuccessful, has the effect of generating Earned Discount or reducing the Buy Now price:

(i)    a “price discount” within the meaning of [A]rticle 79(b), such that the consideration for Madbid’s supply of the goods is the money actually paid to Madbid by the user at the time of purchasing the goods and no more; or

(ii)   part of the consideration for the supply of goods, such that the consideration for Madbid’s supply of goods includes both the money paid to Madbid by the user at the time of purchasing the goods and the money paid by the user for Credits used in placing unsuccessful bids in auctions;

(c)    if a user exercises the right to buy goods after winning an online auction, is the consideration for the supply of those goods the stated auction winning price (plus shipping and handling charg[e]) and no more, or is the value of the Credits that the winner used to bid in that auction also part of the consideration for the supply of those goods by Madbid to the user;

or what principles should be applied in determining the answer to those questions?

(3)   Where two Member States treat a transaction differently for the purposes of VAT, to what extent should the courts of one of those Member States take into account, when interpreting the relevant provisions of EU law and national law, the desirability of avoiding:

(a)   double taxation of the transaction; and/or

(b)   non-taxation of the transaction;

and what bearing does the principle of fiscal neutrality have on this question?

 

More information on the opinion in this case as delivered on March 7, 2018 by Advocate General Tanchev can be found here

 

 

 

 

Jul 5

 

CJEU expected to deliver judgment in Case C-320/17, Marle Participations (VAT)

 

Question referred for a preliminary ruling:

The Court of Justice is asked to rule on the question as to whether — and, if so, under what conditions — the letting of buildings by a holding company to a subsidiary constitutes a direct or indirect involvement in the management of that subsidiary the effect of which being that the acquisition and holding of shares in that subsidiary are considered economic activities within the meaning of the Directive of 28 November 2006 1on the common system of value added tax.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The schedule above merely contains a selection of events/important dates taking place during the week and should in no way be considered to be complete. It is very well possible that other important events take place during the week that were not included in the schedule above. It is your own responsibility to research other sources to review whether other important events take place that are not included in the schedule above.

 

Furthermore the schedule above is solely based on the information provided as by the respective authorities when the schedule above was drafted. It is your own responsibility to check whether the information included in the schedule above is complete, accurate and correct. International Tax Plaza and/or its owners do not accept any liability if the information provided in the schedule above is incomplete, not accurate and/or incorrect.

 

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