March 2016 - edition 153EU Tax Alert

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Highlights in this editionTax Rulings II Committee investigates Google, Apple, IKEA and McDonalds On 15 March 2016, Google, Apple, Inter-IKEA Group and McDonald’s expressed their views at a public hearing, held by Parliament’s Special Committee on Tax Rulings II on the proposed directive against base erosion and profit shifting (anti-BEPS), which follows an agreement struck at OECD and G20 levels. Also the anticipated common consolidated corporate tax base and company specific tax were subject to debate.

Council agrees on exchange of tax-related information on multinationals and adopts conclusions on the code of conduct on business taxation On 8 March 2016, the Council adopted conclusions on the strengthening of a code of conduct aimed at eliminating measures that can create situations of unfair competition. Furthermore, the Council agreed - pending the European Parliament’s opinion - on a draft directive on the exchange of tax-related information on the activities of multinational companies.

Final judgment Netherlands Supreme Court in the cases Miljoen, X and Société Générale On 4 March 2016, the Netherlands Supreme Court issued its final decision in three cases that had previously been referred to the Court of Justice of the European Union (CJ) for a preliminary ruling (joint cases Miljoen (C-10/14), X (C-14/14) and Société Générale S.A. (C-17/14)). The cases deal with refund requests of the Netherlands, 15% withholding tax imposed on dividends paid to two individual taxpayers resident in Belgium and one corporate taxpayer resident in France.

General Court upholds unlawful aid decision with respect to German Sanierungsklausel On 4 February 2016, the General Court issued judgements considering that German rules setting aside the normal restriction on loss carry over after a takeover constitutes unlawful granted aid.

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Contents

Highlights in this edition• Tax Rulings II Committee investigates Google, Apple,

IKEA and McDonalds

• Council agrees on exchange of tax-related

information on multinationals and adopts conclusions

on the code of conduct on business taxation

• Final judgment Netherlands Supreme Court in the

cases Miljoen, X and Société Générale

• General Court upholds unlawful aid decision with

respect to German Sanierungsklausel

State Aid / WTO• Norwegian 0% VAT rate for electronic news approved

Direct taxation• EU and the Principality of Monaco initial new tax

transparency agreement

• AG Wathelet opines that German legislation

concerning the calculation of the transfer duties

payable in respect of the gift of a piece of land in

Germany contravenes the free movement of capital

(Hünnebeck)

• AG Campos Sánchez-Borgona opines that

Luxembourg legislation that limits granting a tax

credit to pensioners that satisfy certain conditions

contravenes the free movement of workers (Kohll)

VAT• CJ rules that the Netherlands’ exemption for water

sports is both too broad and too narrow (Commission

v the Netherlands)

• AG Opines that EU VAT Directive precludes national

legislation under which correction of an invoice has

no retroactive effect (Senatex)

• AG Opines on rules for taxation of private use at

cessation of economic activity in respect of capital

goods for which the VAT adjustment period has

already expired (Jan Mateusiak)

• AG Opines on requirements for a correct and

complete description of services on invoices (Barlis

06 – Investimentos Imobiliários e Turísticos SA)

• European Commission holds orientation debate on

the future for VAT in the EU

• Opinion EESC on obligation to respect minimum

standard rate

Customs Duties, Excises and other Indirect Taxes• Council adopts conclusions on the structure and rates

of excise duties applicable to manufactured tobacco

• CJ rules on the customs classification of video

multiplexers (G.E. Security)

• CJ rules on the levying of excise for oil missing during

transport (BP Europa SE)

• CJ rules on the customs classification of effervescent

tablets containing 500 mg calcium (Salutas Pharma

GmbH)

• AG Opinion on the notion of ‘commercial use’ for the

exemption of duty for temporarily imported helicopters

(Robert Fuchs A.G.)

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McDonalds

McDonalds’ representative welcomed the anti-BEPS

proposal, saying it would create a “clearer, simpler and

more consistent international tax regime”. In any event

they are concerned about unilateral approaches that

will result if the BEPS directives are not harmonised in

a holistic manner. McDonalds is not in favour of public

reporting by country as that could harm competition.

Inter-IKEA Group

Inter-IKEA Group ‘s representative made comments

on the presented research from Greens according to

which they accuse the company of dodging tax through

royalty operations via the Netherlands and Liechtenstein.

According to Inter-IKEA Group’s representative some of

the assumptions upon which the report was based were

false. It was further stated that the anti-BEPS proposal

should be aligned inside and outside the EU, that

bureaucracy must be avoided and that a mechanism for

rapid dispute settlement would be highly welcome.

Council agrees on exchange of tax-related information on multinationals and adopts conclusions on the code of conduct on business taxation On 8 March 2016, the Council adopted conclusions on the

strengthening of a code of conduct aimed at eliminating

measures that can create situations of unfair competition.

Furthermore, the Council agreed - pending the European

Parliament’s opinion - on a draft directive on the exchange

of tax-related information on the activities of multinational

companies.

Code of Conduct

In 2013, the European Council called for the code

process to be strengthened. Since then, work has been

undertaken to reform the scope and governance of the

working group.

The Council’s conclusions foresee an enhancement of

the governance, transparency and working methods of

the group.

Highlights in this editionTax Rulings II Committee investigates Google, Apple, IKEA and McDonalds On 15 March 2016, Google, Apple, Inter-IKEA Group and

McDonald’s expressed their views at a public hearing,

held by Parliament’s Special Committee on Tax Rulings

II on the proposed directive against base erosion and

profit shifting (anti-BEPS), which follows an agreement

struck at OECD and G20 levels. They specifically asked

about the proposed requirement for country-by-country

reporting of profits, taxes and subsidies and whether such

information should be made public. Also the anticipated

common consolidated corporate tax base (CCCTB)

and company specific tax structures - such as Google’s

“Bermuda” structure, IKEA’s “royalties” one, Apple’s tax

arrangements in Ireland and McDonalds’ franchises -

were subject to debate.

Google

The representative from Google said that HMRC

had looked into its transfer pricing arrangements and

concluded that certain benchmarks needed to be

adjusted. According to the expressed views that is

normal for multinational companies, adding that Google

pays a global effective tax rate of 19% and that the

EU’s overall rate is around 20%. Google has serious

reservations about the Commission’s CCCTB plans,

which would increase costs for Google as it would

require an establishment in every EU country. Ultimately

for Google this would be contrary to the principle of the

internal market.

Apple

In 2015 Apple paid 13.2 billion dollars in taxes worldwide,

which is an effective tax rate of 36.4%. However, Apple’s

representatives were not prepared to disclose its EU

and Irish tax figures. Apple, like Google, pays most of its

taxes in the US, where most of its employees are based

and its research is done.

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Remaining anti-tax avoidance package

As concerns work on the rest of anti-tax avoidance

package, the presidency has set an ambitious timetable.

The Council held a first exchange of views on 12 February

2016. The presidency is planning for an agreement on

25 May 2016 on a proposal to tackle some of the most

prevalent tax avoidance practices.

Final judgment of Netherlands Supreme Court in cases Miljoen, X and Société Générale On 4 March 2016, the Netherlands Supreme Court issued

its final judgment in three cases that had previously

been referred to the Court of Justice of the European

Union (CJ) for a preliminary ruling (joint cases Miljoen

(C-10/14), X (C-14/14) and Société Générale S.A.

(C-17/14)). The cases deal with refund requests of the

Netherlands, 15% withholding tax imposed on dividends

paid to two individual taxpayers resident in Belgium and

one corporate taxpayer resident in France.

Based on these judgments, individuals residing abroad

who have portfolio shareholdings in Netherlands

companies should review their tax position and could

possibly apply for a (partial) refund of Netherlands

dividend withholding tax provided a tax treaty between

the State of residence and the Netherlands does not

result in an effective credit of the Netherlands withholding

tax with the income tax in the State of residence. This

refund can be claimed for the past three years, and

perhaps even the past five years.

The CJ had ruled that a comparison between the tax

burdens of resident and non-resident taxpayers with

respect to the dividend income has to be made based

on the total tax burden suffered by resident taxpayers

(i.e. personal/corporate income tax) and non-resident

taxpayers (i.e. final withholding tax). In the cases Miljoen

and X, the CJ had ruled that capital exempted from

income tax (heffingsvrij vermogen) must be taken into

account in determining the total income tax on shares

held in Netherlands companies. The CJ had stated that

it is for the Netherlands Supreme Court to decide how to

take this into account. In today’s judgment, the Supreme

Court ruled that when determining the total income tax due

Efficiency will be improved by speeding up the

assessment of potentially harmful tax regimes, with an

earlier and more frequent involvement of the Council.

Information to the public on the group’s ongoing and past

work will be enhanced.

Exchange of tax-related information on multinationals

The purpose of this directive is to implement, at EU

level, an OECD recommendation requiring multinationals

to report tax-related information, detailed country-

by-country, and requiring national tax authorities to

exchange that information automatically. The directive

will transpose the OECD recommendation on country-by-

country reporting (BEPS action 13) into a legally binding

EU instrument.

The draft directive sets out to incite multinationals to

pay their taxes in the country where profits are made.

Information to be reported, on a country-by-country basis,

includes revenues, profits, taxes paid, capital, earnings,

tangible assets and the number of employees.

Under the directive, a multinational company will be

obliged to file its country-by-country report to the tax

authorities of the member state where it is tax resident,

already for the 2016 fiscal year. If the group’s parent

company is not EU tax resident and does not file a report,

it will do so through its EU subsidiaries. Such “secondary

reporting” will be mandatory as from the 2017 fiscal year;

it will be optional in 2016.

The tax authorities will have to exchange the reports

automatically, so that any tax avoidance risks related to

transfer pricing can be assessed. For this, the directive

will build on the EU’s existing framework for automatic

exchange between tax authorities, established by

Directive 2011/16/EU.

The directive will set deadlines of 12 months after the fiscal

year for filing, and a further three months for automatic

exchange and will ensure harmonised implementation

of the OECD recommendation on country-by-country

reporting, including by 7 member states that are not

members of the OECD. The Council will adopt the

directive once the European Parliament has given its

opinion and national parliamentary reservations have

been lifted, and once the text is finalised in all languages.

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State Aid/WTONorwegian 0% VAT rate for electronic news approvedThe EFTA Surveillance authority approved of a 0% VAT

rate for electronic news services that contain news and

current affairs contents, targeted at the general public.

The medium should have an editor-in-chief to guarantee

its independency, quality and trustworthiness and be

published at least once a week. Each digital edition must

have at least 50% new and internally produced content.

As promoting media pluralism and diversity is deemed

an objective of common interest, the Authority decided

to raise no objections to the 0% rate. The rate may

help business models for news production to survive by

maintaining a high level of production and consumption

of high quality news. The proposed rate will take away

the difference in VAT treatment between distribution

platforms, as newspapers are currently also subject to

a 0% rate. The rate will be available to services provided

by foreign news media as well. (Be advised that Norway,

as an EFTA Member, is not bound by the EU’s VAT

Directive.)

Direct TaxationEU and the Principality of Monaco initial new tax transparency agreementOn 22 February 2016, the EU and Monaco have today

initialled a new tax transparency agreement.

This agreement provides that Monaco and

EU Member States will automatically exchange

information on the financial accounts of one another’s

residents from 2018. The information will start being

collected from 1 January 2017.

Under the new agreement, EU Member States will

receive the names, addresses, tax identification numbers

and dates of birth of their residents with accounts in

Monaco, as well as certain other financial information,

including account balances. The procedure envisaged

complies with the new OECD and G20 global standard

on automatic exchange of information. Stepping up

information exchange will enable the tax authorities to

on all shares in Netherlands companies held by a non-

resident individual, the capital exempted from income tax

can fully be attributed to the shares held in Netherlands

companies. This means that the capital exempted from

income tax does not have to be divided pro rata between

all shares held in Netherlands companies and other

capital, which is a beneficial outcome for the taxpayer.

In the case of Société Générale, the CJ had ruled that

the Netherlands Supreme Court can take account (only)

of expenses which are directly linked to the actual

payment of the dividends. The CJ furthermore had ruled

that neither financing costs concerning the acquisition

of shares, nor purchased dividends are directly linked

to the actual payment of the dividends. Following this

judgment, the Netherlands Advocate General rendered

a Supplemental Opinion in which he concluded that the

Netherlands Supreme Court should disregard the finding

of the CJ that (effectively) purchased dividends are

not directly linked to the dividends received by Société

Générale and advised that the Supreme Court should

refer the case back to a court of appeal for further fact

finding. However, in today’s judgment the Netherlands

Supreme Court disregarded this Opinion and dismissed

the case of Société Générale on the grounds that, when

disregarding financing costs and purchased dividends,

the total tax burden of Société Générale on the dividends

was not higher than the total tax burden of a Netherlands

resident would have been.

General Court upholds unlawful aid decision with respect to German SanierungsklauselIn 2011, the Commission ruled that a German rule setting

aside the normal restriction on loss carry over after a

takeover to be unlawfully granted aid. The restriction

was set aside in the case of a takeover done with the

intention to restructure ailing companies. The General

Court agreed that excluding ailing companies from such

a restriction did not fit within the objective of the general

tax system of which the anti-abuse provision was a part.

It therefore decided to uphold the Commission’s decision

finding the aid selective (Cases T-287/11 and T-620/11 of

4 February 2016).

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The German tax authorities rejected the appeal,

considering that the German legislation already gave the

possibility to benefit from this higher personal allowance

by granting the possibility to opt to be treated as a

German resident. In this case, all transfers made in the

previous or subsequent 10 years following the transfer of

the assets would be treated as subject to unlimited tax

liability.

AG Wathelet started by referring that the ability to opt for

unlimited tax liability did not preclude the discriminatory

tax treatment. In that regard, the AG made reference to

the CJ judgment in the Gielen case (C-440/08) where the

Court ruled that the possibility for a non-resident taxable

person to avoid a discriminatory tax regime by opting

for one which was ostensibly not discriminatory (in that

case, the regime applicable to residents), ‘such a choice

is not (...) capable of remedying the discriminatory effects

of the first of those two tax regimes’ or of ‘validat[ing] a

tax regime which, in itself, remains contrary to Article 49

TFEU by reason of its discriminatory nature’.

Therefore, the AG concluded that the possibility for non-

resident taxpayers to benefit from the allowance reserved

for resident taxpayers by opting for the inheritance

and gift tax scheme for residents did not remedy the

incompatibility with the free movement of capital.

Lastly, the AG analysed the procedures for exercising the

option offered to non-residents to choose the inheritance

and gift tax scheme for residents and the consequences

of that choice. As regards, first, the procedures for

exercising that option, since that option is available only

for taxable persons residing in the territory of Member

States of the EU or the EEA, the AG considered that

excluding residents of third countries is contrary to the

free movement of capital.

As regards the consequences of exercising the option at

issue, the AG observed that in the present case there is

an indisputable difference in treatment between residents

and non-residents, since the period to be taken into

account for transfers which is laid down for non-residents

(ten years before and after the transfer) is considerably

longer than the period laid down for residents (ten years

before the transfer). In the case of multiple transfers, that

better tackle fraudsters, at the same time acting as a

deterrent for those who are tempted to hide income and

assets abroad. The EU signed similar agreements in

2015 with Switzerland, San Marino, Liechtenstein and,

this year, with Andorra.

The formal signature of the new agreement is expected

to take place before summer, as soon as the Council

authorizes the Commission’s proposal.

AG Wathelet opines that German legislation concerning the calculation of the transfer duties payable in respect of the gift of a piece of land in Germany contravenes the free movement of capital (Hünnebeck)On 18 February 2016, AG Wathelet delivered his

Opinion in case Sabine Hünnebeck v Finanzamt Krefeld

(C-479/14). The case deals with the legislation regarding

the calculation of the transfer duties payable in respect of

the gift of a piece of land in Germany, when neither the

donor nor the recipient of the gift resides in that Member

State. Specifically, the case deals with the compatibility

with EU law of the amendments to the German legislation

in accordance with which the higher tax allowance

reserved for German residents is applicable to a gift

between non-residents of an asset situated in Germany

if the donee requests that the gift be subject to the tax

scheme for residents (unlimited tax liability).

Ms Hünnebeck and her two daughters are German

nationals residing in the UK. Ms Hünnebeck was a

co-owner of a piece of land located in German that

was donated to the two daughters. It was stipulated

in the transfer agreement that Ms Hünnebeck would

be liable for any gift tax which might become payable.

In calculating the amount of the transfer duties to be

paid, the German tax authorities applied the EUR 2,000

share of personal allowance that was granted to non-

resident German persons. Ms Hünnebeck appealed

from this decision requesting for the application of the

EUR 400,000 personal allowance that was applied to

German residents as otherwise, non-residents would be

subject to a less favourable tax treatment.

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He then proceeded with the concrete analysis of the

Luxembourg legislation. First of all, he started by

observing that the legislation at stake deprives of a tax

benefit, the tax credit, to a pensioner whose pension

does not come from a Luxembourg pension fund or other

Luxembourg institution liable for payment. That difference

in treatment could deter both workers in Luxembourg who

wish to seek employment in another Member State, and

Luxembourg workers, or workers who are nationals of

other Member States, who wish to settle in Luxembourg

after their retirement. In addition and insofar as the lack

of a tax deduction document, and what that entails, will

lead to refusal to pay the tax credit to nationals of other

Member States in a higher proportion than to Luxembourg

nationals, since it will be the former in particular who will

receive pensions from other Member States. Therefore,

he concluded that the legislation at issue constituted a

restriction of the free movement of workers.

As regards possible justifications, the AG rejected the

need to preserve the coherence of the tax system. In this

regard, the AG referred to the absence of a direct link

between the tax benefit and the tax offsetting it. According

to the AG, the connection to which the Luxembourg

Government refers is concerned with the tax benefit

in relation to the technique of the deduction but not in

relation to another tax created in order to counter the loss

of tax revenue caused by the grant of the tax credit.

In what refers to the need to safeguard the balanced

allocation of the powers of taxation between Member

States, the AG also considered it inappropriate taking

into account the fact that pursuant to Article 19 of the

applicable double tax treaty, Luxembourg was granted

the power to tax both pensions received by pensioners

from pension funds in that Member State and pensions

originating in the Netherlands.

In any event and even if the Court should accept that

the legislation at issue would be justified, the AG

nevertheless considered it not proportional, notably due

to the existence of less onerous methods, namely, the

option of providing for a deduction from the amount of tax

equal to the maximum amount of the tax credit.

difference in treatment could easily lead to non-residents

being taxed more heavily. Therefore, he concluded that

such difference is in breach of the free movement of

capital.

AG Campos Sánchez-Borgona opines that Luxembourg legislation that limits granting a tax credit to pensioners that satisfy certain conditions contravenes the free movement of workers (Kohll) On 16 February 2016, AG Campos Sánchez-Borgona

delivered his Opinion in Charles Kohll and Sylvie Kohll-

Schlesser v Directeur de l’administration des contributions

directes (C-300/15). The case deals with the compatibility

with EU law of the Luxembourg legislation which grants

a tax credit to pensioners who satisfy certain conditions,

notably that the pensions or annuities refer to income

which Luxembourg has the right to tax and the taxpayers

are in possession of a tax deduction document.

The case deals with two pensions of Netherlands origin

paid to Mr Kohll and taxable in Luxembourg pursuant

to Article 19 of the applicable double tax treaty. Those

pensions paid during the years of 2009, 2010 and 2011

were not subject to deduction at source in Luxembourg,

reason by which Mr Kohll was not entitled to a tax

credit. He objected to this decision considering that the

refusal to grant tax credits to persons whose pensions

are not subject to deduction at source in Luxembourg

excludes those whose pensions are not subject to that

deduction, thereby restricting the grant of tax credits

to persons receiving their pension from a pension fund

in Luxembourg. In that connection, he claimed that it

would constitute an infringement of the free movement of

workers affirmed in Article 45 TFEU.

As a preliminary issue, the AG started by determining

the applicable fundamental freedom. In this regard, it

considered that the income received by Mr Kohll from

his two pensions constituted rights acquired through

his status of a worker having exercised freedom of

movement as a worker, and those rights are protected

under Article 45 TFEU, in the light of which the provision

of national law at issue should be examined.

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AG Opines that EU VAT Directive precludes national legislation under which correction of an invoice has no retroactive effect (Senatex) On 17 February 2016, Advocate General Bot delivered

his Opinion in the case Senatex GmbH v Finanzamt

Hannover-Nord (C-518/14). Senatex GmbH (‘Senatex’)

carries on a wholesale textile business. Senatex was

subject to an audit by the tax authorities in relation to

the years 2008-2011. It was found that commission

statements and commercial designer invoices submitted

for the purposes of input tax deduction were not proper

invoices within the meaning of the German VAT Act,

as these did not contain the tax number or the VAT

identification number of the sales representatives or

commercial designer. During the inspection period,

Senatex corrected the statements and invoices for the

years 2009-2011 by adding the missing details.

Notwithstanding those corrections, the tax authorities

issued VAT assessments taking the view that the input

VAT deduction in respect of the invoices at issue could not

be made on the ground that the requirements for those

deductions were met only when the corrections were

made, namely in 2013, and not in the years 2009-2011.

Senatex, however, took the view that the corrections

made to the invoices had retroactive effect, as those

corrections were made before the final administrative

decision. The Finance Court of Lower Saxony had doubts

as to the interpretation of the CJ’s judgments and the

provisions of the EU VAT Directive and decided to refer to

the CJ for a preliminary ruling. In particular, the questions

raised concern, first, the effect which should be given to

the correction of an incorrect or incomplete invoice in

respect of the time when the right to deduct VAT may be

exercised and, second, whether such correction may be

limited in time.

According to the AG, the EU VAT Directive must be

interpreted as precluding national legislation under which

the correction of an invoice in relation to required details

does not have retroactive effect, as a result of which the

right to deduct VAT would only be exercisable for the

year when the initial invoice was corrected and not for

VAT CJ rules that the Netherlands’ exemption for water sports is both too broad and too narrow (Commission v the Netherlands)On 25 January 2016, the CJ delivered its judgment in

the case Commission v the Netherlands (C-22/15),

which case focusses on the VAT exemption for services

closely linked to sport or physical education. The EU

VAT Directive requires the Member States to exempt

the supply of certain services closely linked to sport or

physical education by non-profit-making organizations to

persons taking part in sport or physical education. Based

on this provision, the Netherlands VAT Act exempts from

VAT the provision of services by sports associations

to their members, with the exception of the services

provided by water sports associations which, in order

to provide their services, have recourse to one or more

persons employed by them, in so far as those services

consist of the carrying out, with the help of those persons,

of activities in relation to vessels or in the provision of

quays and moorings.

The Commission first of all, took issue with the fact that

the VAT exemption is not limited to the hiring of quays and

moorings to members of non-profit-making organizations

taking part in sport, but also extends to the hiring of

quays and moorings to the members of associations in

respect of sailing or leisure activities which cannot be

equated with the practice of sport or physical education.

In addition, the Commission took issue with the fact that,

in order to benefit from the exemption, the associations in

question must not have any employees. The Netherlands

thereby, in the view the Commission, adds a condition

that goes beyond what is permitted by Article 133 of

the EU VAT Directive. Given the aforementioned, the

Commission contends that the Netherlands’ exemption is

both too broad and too narrow.

The CJ ruled that the Commission’s claim is fully justified.

As a result, according to the CJ, the Netherlands has

failed to fulfil its obligations under Articles 2(1), 24(1) and

133 in conjunction with Article 132(1)(m) of the EU VAT

Directive.

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taxation is an issue. In the view of the AG, taxation

under Article 18(c) of the EU VAT Directive ensures

the neutrality of the VAT system insofar as it does not

influence the economic decision of the taxable person.

AG Opines on requirements for a correct and complete description of services on invoices (Barlis 06 – Investimentos Imobiliários e Turísticos SA)On 18 February 2016, Advocate General Kokott delivered

her Opinion in the case Barlis 06 – Investimentos

Imobiliários e Turísticos SA (‘Barlis’, C-516/14). Barlis is

a company active in the hotel business. During the period

2008 up to and including 2010, Barlis received services

from a law firm. After performing an audit, the Portuguese

tax authorities took the view that Barlis had deducted the

input VAT on these services incorrectly as the description

of the services performed in the invoices did not meet the

requirements of national provisions.

The matter ended up with the Tax Court of Arbitration,

which referred questions to the CJ for a preliminary

ruling. The referring court asked whether Article 226(6)

of the EU VAT Directive must be interpreted as permitting

the Portuguese tax authorities to regard as insufficient

a description on an invoice which states ‘legal services

rendered from such a date until the present date’ or

merely ‘legal services rendered until the present date’,

where that body may, in accordance with the principle of

collaboration, obtain the additional information which it

deems necessary to confirm the existence and detailed

characteristics of the relevant transactions.

According to the AG, the CJ should give clarification

on two matters. First, it should clarify how detailed

the description of a service has to be on an invoice.

Second, it should express itself on the consequences of

an incomplete invoice for the right to deduct input VAT.

The AG Opined that an invoice which only contains a

description ‘legal services’ as the nature of a service,

in principle, meets the requirement of Article 226(6),

paragraph 6, of the EU VAT Directive, unless national

law (in line with EU VAT law) provides for a different

VAT treatment of certain legal services. However, if the

invoice merely mentions ‘legal services rendered until the

present date’ as the scope of the service, it does not fulfil

the year when that invoice was drawn up. Furthermore, in

the view of the AG, Member States may adopt measures

on the failure to provide the required details, as long

as they comply with the principle of proportionality, and

measures placing a temporal restriction on the possibility

of correcting an incorrect or incomplete invoice, as long

as these measures apply equally to fiscal rights derived

from domestic and EU law. However, such measures

must also meet the principles of equivalence and

effectiveness.

AG Opines on rules for taxation of private use at cessation of economic activity in respect of capital goods for which the VAT adjustment period has already expired (Jan Mateusiak)On 3 March 2016, Advocate General Kokott delivered her

Opinion in the case Minister Finansów v Jan Mateusiak

(C-229/15). Mr Mateusiak is planning to cease his activity

as a notary. His business assets include a residential

and commercial building. For the commercial part of

the building Mr Mateusiak had claimed a right to deduct

input VAT. Mr Mateusiak has raised the question whether

taxation of that part of the building at ceasing his activity

is precluded on the ground that the adjustment period for

the correction of the deduction of input VAT in respect

of the building has expired. Mr Mateusiak took the view

that such taxation must no longer take place. The Polish

tax authorities, however, opposed this view. Finally, the

matter ended up with the Supreme Administrative Court,

which referred to the CJ for a preliminary ruling regarding

the interpretation of Article 18(c) of the EU VAT Directive.

The AG opined that the adjustment period for goods

under Article 187(1) of the EU VAT Directive has no effect

on their taxation under Article 18(c) of that Directive, as

any time limits for taxation or references to Article 187

are absent in Article 18(c). Although both systems - for

adjustment of deductions and taxation of private use -

have similar aims, these aims are pursued in different

ways. According to the AG, there is some need for

coordination between the two systems in order to uphold

the principle of fiscal neutrality, under which principle

double taxation, in particular, is to be avoided. In the main

proceedings however, there is no indication that double

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Customs Duties, Excises and other Indirect TaxesCouncil adopts conclusions on the structure and rates of excise duties applicable to manufactured tobaccoOn 8 March 2016, the Council adopted conclusions on the

structure and rates of excise duty applied to manufactured

tobacco. These conclusions follow the goal to simply and

clarify the structure of excise duties on manufactured

tobacco. Some products, such as e-cigarettes, do not

fall into any of the categories of products subject to

excise duty. In this regard the Council proposes that such

situation should be monitored and, should the market

share of such products show a tendency to increase, the

ongoing efforts to develop an efficient taxation method

for such products would have to be intensified. In this

context, a solution for excise taxation of e-cigarettes,

heated tobacco, other novel tobacco products and,

where relevant, of products related to tobacco products,

needs to be practical and foresighted, and strike the

right balance between the revenue, expenses of tax

administration and public health objectives.

The Council considers that any amendments to the

directive should, aim at the reduction of an administrative

burden to businesses and the competent authorities

concerned, as well as simplification of compliance

requirements, without undermining the functioning of

the excise duty system. Furthermore, any initiatives for

adjustments of the EU legal framework on excise duties

should also aim at reducing tax fraud.

The conclusions come in response to a December 2015

report from the Commission on the structure and rates of

excise duty applied to manufactured tobacco

CJ rules on the customs classification of video multiplexers (G.E. Security)On 25 February 2016, the CJ delivered its judgment in the

case G.E. Security BV v Staatssecretaris van Financiën

(C-143/15). The case concerns the classification in

the combined nomenclature (CN) of so-called video

multiplexers.

these requirements. Moreover, such a remark does not

suffice as a reference to the date of the service. Finally, in

the view of the AG, it is not sufficient for the right to deduct

input VAT that the recipient of the invoice completes the

lacking data on the invoice with other information, unless

it concerns documents which can be considered to be

part of the invoice.

European Commission holds orientation debate on the future for VAT in the EU On 24 February 2016, the College of Commissioners held

an orientation debate on the way forward for VAT in the

EU. An Action Plan on this issue will follow. In the view of

the College, the VAT system needs reform as the ‘VAT

gap’ (which is the difference between the expected VAT

revenue and VAT actually collected in Member States)

was almost EUR 170 billion in 2013. Cross-border fraud

itself is estimated to be responsible for a VAT revenue

loss of about EUR 50 billion annually in the EU. At the

same time, the current VAT system remains fragmented

and creates significant administrative burdens, especially

for SMEs and online companies. Finally, it has been

announced that the system needs modernization in order

to reflect innovative business models and technological

progress in today’s digital environment.

Opinion EESC on obligation to respect minimum standard rate On 14 January 2016, the Council decided to consult the

European Economic and Social Committee, under Article

113 of the Treaty on the Functioning of the European

Union, on the Proposal for a Council Directive amending

the EU VAT Directive on the common system of VAT,

with regard to the duration of the obligation to respect

a minimum standard rate. The Committee endorses the

proposed directive extending the minimum standard rate

for VAT. The minimum will remain at the same level as in

previous periods, i.e. 15%, and will be extended for only

two years as from 2016. This is because the Commission

is to publish an Action Plan in spring 2016 with the aim of

moving towards a simpler, more efficient and more fraud-

resistant definitive VAT system, tailored to the single

market. During this period, more extensive discussions

can be held on VAT rates.

12

In the second place, the video multiplexer performs an

alarm function. For that purpose, it includes an integrated

alarm system which can be configured in such a way

that, when detected movements, sounds or signals so

warrant, the video multiplexer activates devices which

emit sound or light signals, and/or it emits a warning

signal in the form of an e-mail sent to one or more of the

users connected to the system (for example, the police,

the fire brigade, the owner of the premises or a security

company).

In the third place, the video multiplexer performs a function

of transmitting and receiving network data. In order to do

that, it has devices enabling it to send e-mails to system

users and/or to connect to the Internet, to digital networks

or to an automatic data-processing machine.

On 14 October 2008, G.E. Security applied to the relevant

customs inspector (‘the inspector’) to issue binding tariff

information for three video multiplexers. It requested that

they be classified under subheading 8543 70 90 of the

CN or subheading 8531 10 30 of the CN, for which the

customs duties were 3.7% and 2.2% respectively.

By letter of 27 November 2008, the inspector classified

the three video multiplexers as a ‘video recording or

reproducing apparatus’ under subheading 8521 90 00 of

the CN, subject to customs duties of 13.9%.

G.E. Security lodged an objection to that classification

decision, which the inspector dismissed. It then brought

an action against that dismissal before the Rechtbank te

Haarlem (District Court, Haarlem), which declared the

action to be well-founded and classified the three video

multiplexers as alarms of the type used in buildings,

coming under subheading 8531 10 30 of the CN.

The inspector appealed against that judgment before

the Gerechtshof te Amsterdam (Court of Appeals,

Amsterdam). That Court held that, although the video

multiplexer may, in view of its objective characteristics

and properties, be deemed to be part of an alarm system,

as referred to in heading 8531 of the CN, it must, pursuant

to Note 2(a) to Section XVI of the CN, be classified under

subheading 8521 90 00 of the CN.

G.E. Security, a company specialising in the sale of high-

tech protection systems, developed a protection system

called ‘video multiplexer’.

On its website, G.E. Security presents the video

multiplexer as a ‘digital video transmission recorder’. The

video multiplexer is sold only to companies specialising

in the sale of security installations and surveillance

systems, and which provide customers with complete

installation services for those installations and systems.

The video multiplexer is used within security and

surveillance systems or installations for buildings. More

specifically, it is part of a closed circuit video-surveillance

system connected to external cameras and/or external

censors, such as motion and fire detectors.

The video multiplexer performs three different functions.

In the first place, the video multiplexer performs a video

recording and reproducing function, in that it is capable of

receiving signals from censors, and images and sounds

from cameras, and reproducing those sounds and images

on monitors. For that purpose, the video multiplexer is

equipped with video and audio input points to which up to

16 cameras can be connected simultaneously. By means

of the video multiplexer, the cameras can be switched on/

off and controlled remotely. It is thus possible to enlarge

and reduce certain parts of the images recorded by those

cameras or to block those images so as to limit recording

to certain days and hours of the week and/or to certain

parts of a building or site. It is also possible to ignore the

movements of pets in a building. The video multiplexer

also includes video output points which can connect it

to one or more monitors on which it is possible to view

images from a number of cameras simultaneously, and

an audio output point which can be connected to an

external amplifier or loudspeaker. On the other hand,

the video multiplexer cannot receive television signals.

Moreover, the video multiplexer can store on a hard

drive the recordings of the analogue and digital images

and sounds from the cameras and/or signals from the

censors. Those recordings are secured to prevent them

from being accidentally wiped or manipulated. They are

stored in a special format and can be reproduced only

using the video multiplexer or special software.

13

CJ rules on the levying of excise for oil missing during transport (BP Europa SE)On 28 January 2016, the CJ delivered its judgment in

the case BP Europa SE v Hauptzollamt Hamburg-Stad

(C-64/15). The case concerns the levy of excises in the

situation that irregularities occurred during the movement

of gas oil from the Netherlands to Germany under

suspension of excises.

In January 2011, BP Europa dispatched 2.4 million litres

of gas oil by ship under Combined Nomenclature code

2710 19 41 from a tax warehouse in the Netherlands to a

tax warehouse in Germany. The transport was carried out

as a movement of excise goods under a duty suspension

arrangement, as provided for in Articles 17 to 31 of

Directive 2008/118.

At the destination, after delivery of the gas oil, the owner

of the tax warehouse in Germany found that he had

received an amount 4,854 litres less than that stated

on the electronic administrative document drawn up for

application of the suspensive procedure, that is to say,

0.202% of the declared amount, and notified the customs

authorities thereof in his acknowledgement of receipt.

By decision of 16 January 2012, the customs office of

the city of Hamburg levied energy tax of EUR 24.93 on

the amount of missing gas oil which exceeded the 0.2%

tolerance threshold generally allowed by the Germany

authority.

The Finanzgericht Hamburg (Finance Court, Hamburg)

dismissed the action brought by BP Europa against

the imposition of that tax. It held that the missing

amount of gas oil was due to an irregularity deemed

to have occurred in the customs territory and resulting

in the release for consumption of that product. The

Bundesfinanzhof (Federal Finance Court), seised of

an appeal on a point of law, asked whether that legal

assessment of the dispute arising from the application

of the national law which transposed Directive 2008/118

meets the requirements of that directive, in particular,

those concerning the conditions for the levying of excise

duty and determination of the Member State which is

entitled to levy that duty, when only part of the goods in

G.E. Security lodged an appeal against the judgment of

the Gerechtshof te Amsterdam before the referring court.

In those circumstances, the Hoge Raad der Nederlanden

(Supreme Court of the Netherlands) decided to stay the

proceedings and to refer the following question to the

Court of Justice for a preliminary ruling:

‘Should CN headings 8517, 8521, 8531 and 8543 be

interpreted as meaning that a product such as a video

multiplexer - which was developed to form part of a

system which is able to analyse images and sounds

derived from cameras and alarm sensors connected to

it, and which, if required, records, stores, processes and

displays images and sounds on a monitor connected to

it, and/or which, when the images or sounds so warrant,

emits a warning signal in the form of an e-mail to one or

more of the users connected to the system, and/or which

can activate devices which emit sound or light signals - is

to be classified under one of those headings?’

The CJ considered that the function of the product

concerned is crucial for its classification in one of the CN

headings 8517, 8521 and 8531. The product fulfils three

functions: video recording and reproducing, an alarm

function, and the function of transmitting and receiving

network data.

G.E. Security presents the video multiplexer on its

website as a ‘digital video transmission recorder’ and

that the video multiplexer is sold only to companies

specialising in the sale of security installations and

surveillance systems.

Bearing in mind the three functions as described and the

destination of the product, the CJ considered the video

recording and reproducing function as the main function

of the product. The other functions are merely considered

as ancillary functions.

On the basis of these considerations, the CJ ruled that

the Combined Nomenclature must be interpreted as

meaning that a product such as the ‘video multiplexer’

at issue in the main proceedings must, subject to the

referring court’s assessment of all the facts before it, be

classified in heading 8521 of that nomenclature.

14

been released for consumption in all cases in which

the proof of total destruction or irretrievable loss of

the missing quantity required under Article 7(4) of

Directive 2008/118 cannot be furnished?’

The CJ ruled as follows:

1. Article 20(2) of Council Directive 2008/118/EC

of 16 December 2008 concerning the general

arrangements for excise duty and repealing

Directive 92/12/EEC must be interpreted as

meaning that the movement of excise goods

under a duty suspension arrangement ends, for

the purpose of that provision, in a situation such as

that in the main proceedings, when the consignee

of those goods has found, on unloading in full

from the means of transport carrying the goods in

question, that there were shortages of the goods

in comparison with the amount which should

have been delivered to him.

2. The combined provisions of Articles 7(2)(a) and

10(2) of Directive 2008/118 must be interpreted

as meaning that:

– the situations which they govern are outside

that referred to in Article 7(4) of that directive

and

– the fact that a provision of national law

transposing Article 10(2) of Directive 2008/118,

such as that at issue in the main proceedings,

does not expressly state that the irregularity

governed by that provision of the directive

must have given rise to the release for

consumption of the goods concerned, such

an omission cannot prevent the application

of that national provision to the discovery of

shortages, which of necessity entail such a

release for consumption.

3. Article 10(4) of Directive 2008/118 must be

interpreted as meaning that it applies not only

where the total amount of goods moving under

a duty suspension arrangement failed to arrive at

its destination, but also where only a part of those

goods failed to arrive at its destination.

circulation under the duty suspension arrangement failed

to arrive at its destination.

In those circumstances, the Bundesfinanzhof (Federal

Finance Court) decided to stay proceedings and refer

the following questions to the Court of Justice for a

preliminary ruling:

‘(1) Is Article 10(4) of Directive 2008/118 to be

interpreted as meaning that the conditions which

it lays down are fulfilled only in the case where

the total quantity of goods moving under a duty

suspension arrangement has not arrived at their

destination, or can that rule, account being taken of

Article 10(6) of Directive 2008/118, also be applied

to cases in which only a portion of the excise goods

moving under a duty suspension arrangement fails

to arrive at the destination?

(2) Is Article 20(2) of Directive 2008/118 to be

interpreted as meaning that the movement of excise

goods under a duty suspension arrangement does

not end until the consignee has fully unloaded

the means of transport which has arrived at his

premises, with the result that a deficit detected

during unloading is deemed to have been detected

while the movement was still ongoing?

(3) Does Article 10(2), in conjunction with Article 7(2)

(a), of Directive 2008/118 preclude a national

provision under which the competence of the

Member State of destination to levy duty (apart

from being excluded in the cases provided for in

Article 7(4) of [that directive]) is made subject only

to the detection of the occurrence of an irregularity

and the impossibility of determining the place where

that irregularity occurred, or is it also necessary

to establish that, by being removed from the duty

suspension arrangement, the excise goods have

been released for consumption?

(4) Is Article 7(2)(a) of Directive 2008/118 to be

interpreted as meaning that, where an irregularity as

provided for in Article 10(2) of [Directive 2008/118]

has been detected, excise goods moved under

a duty suspension arrangement which have not

arrived at the destination must be assumed to have

15

of calcium which is significantly higher than the

recommended daily allowance for maintaining general

health or well-being.

Following an objection by Salutas Pharma lodged on

26 October 2012, the Customs Office confirmed, on

13 January 2014, the classification decision for the

product at issue in the main proceedings under heading

2106 of the CN, holding that the condition in additional

note 1 to Chapter 30 of the CN had not been satisfied

as the calcium content of the recommended maximum

daily dose of that product was not equal to three times

the recommended daily allowance for calcium.

On 17 February 2014, Salutas Pharma brought an

action before the referring court against the decision of

13 January 2014, arguing that the additional note 1 to

Chapter 30 of the CN is not valid, insofar as it modifies

the content of tariff heading 3004 of the CN. Alternatively,

Salutas Pharma pointed out that that additional note does

not lay down a requirement that the recommended daily

dose of calcium of the product at issue must correspond

to three times the necessary daily allowance, having

regard, in particular, to the fact that a daily dose of 2,400

mg of calcium, which is three times the recommended

daily allowance, exceeds the critical limit for health.

The Customs Office claimed that the action should be

dismissed on the grounds that additional note 1 to

Chapter 30 of the CN is binding, and that it is possible

to consumer up to 2,500 mg of calcium per day without

adverse health effects, so that the calcium content of the

maximum recommended daily dose of the effervescent

tablets at issue in the main proceedings, that is 1,500 mg,

cannot be regarded as being ‘significantly higher’ within

the meaning of the additional note.

The referring court observed that those tablets fulfil the

conditions laid down by additional note 1, first paragraph,

points (a) to (d) to Chapter 30 of the CN and, therefore,

their classification depends, first, on the interpretation of

the expression ‘significantly higher’ in the third paragraph

of that additional note and, second, on the interpretation

of the explanatory note relating to Chapter 30 of the CN.

From the facts presented by the referring Court to the

CJ and the answers to the first two questions, one

must conclude that an irregularity took place during the

transport of the goods concerned. It therefore seems un

necessary to answer the third question that has regard to

the situation that goods were missed but no irregularity

was detected.

CJ rules on the customs classification of effervescent tablets containing 500 mg calcium (Salutas Pharma GmbH)On 17 February 2016, the CJ delivered its judgment in the

case Salutas Pharma GmbH v Hauptzollamt Hannover

(C-124/15). The case concerns the classification in the

combined nomenclature (CN) of ‘Calcium-Sandoz Forte

500 mg’ tablets.

On 2 May 2012, Salutas Pharma applied for the issue of

binding tariff information in respect of ‘Calcium-Sandoz

Forte 500 mg’ tablets. It proposed that that product should

be classified under subheading 3004 90 00 of the CN.

The product at issue in the main proceedings consists of

a preparation having calcium as its main ingredient, and

is intended to be taken after being dissolved in water.

Each tablet contains 500 mg of calcium. Information on

the product, in particular, the dose, the area of application,

and the active substances it contains can be found on

the carton and in the accompanying user directions. The

recommended daily dose for adults is 1 to 3 effervescent

tablets, that is, 500 to 1,500 mg, and the dose for children

is 1 to 2 effervescent tablets that is, 500 to 1,000 mg.

The accompanying user directions indicate that the

effervescent tablets are used for the prevention and

treatment of a calcium deficiency and to support a special

therapy for the prevention and treatment of osteoporosis.

Salutas Pharma distributes the effervescent tablets

exclusively through pharmacies.

The Customs Office, which issued a binding tariff

information on 8 October 2012, classified that product

under subheading 2106 90 92 of the CN, on the ground

that it does not fall within heading 3004 of the CN as

its dose does not correspond to a level of consumption

16

set. In that connection, it observed that, for the purposes

of the tariff classification of goods, the latter must not

be differentiated according to a given standard market

practice or medical appropriateness.

In those circumstances, the Finanzgericht Hamburg

(Finance Court, Hamburg) decided to stay the

proceedings and to refer the following question to the

Court of Justice for a preliminary ruling:

‘Is the CN to be interpreted as meaning that effervescent

tablets with a calcium content of 500 mg per tablet

that are used for the prevention and treatment of a

calcium deficiency and to support a special therapy for

the prevention and treatment of osteoporosis and for

which the maximum recommended daily dose for adults

indicated on the label is 3 tablets (= 1,500 mg) are to be

classified under subheading 3004 90 00?’

The CJ ruled that the Combined Nomenclature must

be interpreted as meaning that a product, such as

effervescent tablets with a calcium content of 500 mg

per tablet that is used for the prevention and treatment

of a calcium deficiency and to support a special therapy

for the prevention and treatment of osteoporosis, and for

which the maximum recommended daily dose for adults

indicated on the label is 1 500 mg, falls within heading

3004 of that nomenclature.

AG Opinion on the notion of ‘commercial use’ for the exemption of duty for temporarily imported helicopters (Robert Fuchs A.G.) On 18 February 2016, the AG delivered his opinion in

the case Robert Fuchs A.G. v Hauptzollamt Lörrach

(C-80/15). The case concerns the notion of ‘commercial

use’ for the application of a duty exemption for helicopters

that are temporarily brought from Switzerland into EU

territory in order to give flight training.

Fuchs is a flight and maintenance undertaking. Its seat

is in Switzerland, but it is also registered in Germany.

It offers, among other things, services in the helicopter

flight business, in particular, flight training for private

individuals and professional pilots.

In that connection, that court considered that the

explanatory note seems to require that, in order for a

preparation such as the product at issue in the main

proceedings to be included in that chapter as a ‘vitamin

or mineral preparation’ its vitamin or mineral content must

be much higher, generally at least three times higher

than the recommended daily allowance. Therefore, as

the recommended daily allowance for calcium is 800 mg,

the calcium content of the recommended daily dose of

a product such as that at issue in the main proceedings

enabling it to be classified under heading 3004 of the CN

would have to be 2,400 mg. As regards the product at

issue in the main proceedings, its maximum content is

1,500 mg per day.

However, the referring court observed that the calcium

content is more than 85% of the recommended daily

allowance of calcium. Also, it considered that such an

amount may be treated as ‘significantly higher’, within

the meaning of additional note 1 to Chapter 30, even

though it is not three times higher than the recommended

daily allowance. It also considered that the explanatory

note relating to Chapter 30 of the CN, by its use of the

word ‘generally’, appears to refer to possible exceptions.

Therefore, according to that court, it is conceivable that,

in order to classify a product under heading 3004 of the

CN, a vitamin or mineral content for that product which is

less than three times the recommended daily allowance

should suffice in exceptional cases.

Moreover, that court pointed out that there are no

preparations to be taken orally on the market with a

calcium content three times higher than the recommended

daily allowance and that it cannot be concluded that, as

a general rule, a daily dose of 2,400 mg is harmless to

health.

However, the referring court observed that, while many

factors support an interpretation according to which the

‘significantly higher’ content of vitamins or minerals must

be subject to a differentiated assessment, depending to

the type of vitamin or mineral, it is conceivable that the

practical requirements of sound administration require a

clear and easily identifiable limit for that content to be

17

Implementing Regulation since they were not used ‘for

the transport of persons for remuneration or the industrial

or commercial transport of goods, whether or not for

remuneration’. The remuneration paid by the trainee

pilots was received for the training, not as payment for

the transport.

The Customs Office, Lörrach, on the other hand,

contended that Fuchs had used the helicopters

commercially. In its view, persons were transported for

remuneration. It argued that the notion of transportation

is not limited to cases involving a change in location.

Rather, it depends on whether there are persons in the

means of transport.

In light of this disagreement on the meaning of ‘commercial

use’, by order of 17 February 2015, received at the Court

Registry on 20 February 2015, the Finanzgericht, Baden-

Württemberg (Finance Court, Baden-Württemberg)

decided to stay the proceedings before it and to refer the

following question to the Court of Justice for a preliminary

ruling:

‘Must Article 555(1)(a) of Commission Regulation (EEC)

No 2454/93 laying down provisions for the Customs Code

as amended by Commission Regulation (EC) No 2286/93

be interpreted as meaning that remunerated flight training

with helicopters in which a trainer and trainee are in the

helicopter also amounts to a commercial use of a means

of transport?’

The AG considered that the main purpose of the training

flights is not the transport of persons. He therefore, has

recommended to the Court that it answers the question

referred to it by the Finanzgericht, Baden-Württemberg

(Finance Court, Baden-Württemberg,) as follows:

‘Remunerated flight training with helicopters, in which a

trainer and trainee are in the helicopter, does not amount

to a ‘commercial use’ of a means of transport within the

meaning of Article 555(1)(a) of Commission Regulation

(EEC) No 2454/93 of 2 July 1993 laying down provisions

for the Customs Code as amended by Commission

Regulation (EC) No 2286/2003 of 18 December 2003’.

By a decision of 13 October 2009, the Hauptzollamt

Lörrach (Customs Office, Lörrach, Germany) granted

an exemption to Fuchs from the obligation to land at a

customs airfield (‘Zollflugplatzzwang’), in respect of 10

individually listed helicopters registered in Fuchs’ name

in Switzerland.

In 2009 and 2010, those helicopters were flown into the

customs territory of the EU. The helicopters were flown

either by a flying instructor employed by Fuchs or by a

trainee pilot in the presence of a flying instructor and

landed in the special airfield in Bremgarten (Germany).

Following entry into the customs territory of the EU from

Switzerland, training flights were conducted. They began

and ended on the special airfield in Bremgarten, without

leaving the customs territory of the EU. Subsequently,

the helicopters were flown from the special airfield in

Bremgarten back into Switzerland.

By a decision of 23 May 2011, the Customs Office,

Lörrach, revoked Fuchs’ exemption from the obligation to

land at a customs airfield. It subsequently fixed the duties

owed by Fuchs for the use made of the helicopters for

training purposes.

Fuchs’ customs debt allegedly arose under

Article 204(1)(a) of the Customs Code for breach of the

obligations stemming from the temporary importation

procedure. Fuchs had, it was said, used its helicopters

commercially without having been granted the

corresponding aviation law licence.

By a decision of 2 April 2012, the Customs Office,

Lörrach, rejected Fuchs’ objection to the imposition of

the customs duty as unfounded. Fuchs challenged this

decision before the Finanzgericht, Baden-Württemberg

(Finance Court, Baden-Württemberg), which led to the

present request for a preliminary ruling.

In its action before the national court, Fuchs submitted

that the requirements for total relief from import duties

for the temporary importation of means of transport had

been satisfied. It argued that the helicopters had not been

used for commercial purposes within the meaning of the

18

Correspondents● Gerard Blokland (Loyens & Loeff Amsterdam)

● Kees Bouwmeester (Loyens & Loeff Amsterdam)

● Almut Breuer (Loyens & Loeff Amsterdam)

● Robert van Esch (Loyens & Loeff Rotterdam)

● Raymond Luja (Loyens & Loeff Amsterdam;

Maastricht University)

● Arjan Oosterheert (Loyens & Loeff Zurich)

● Lodewijk Reijs (Loyens & Loeff Rotterdam)

● Bruno da Silva (Loyens & Loeff Amsterdam;

University of Amsterdam)

● Patrick Vettenburg (Loyens & Loeff Rotterdam)

● Ruben van der Wilt (Loyens & Loeff Amsterdam)

www.loyensloeff.com

About Loyens & LoeffLoyens & Loeff N.V. is the first firm where attorneys at law,

tax advisers and civil-law notaries collaborate on a large

scale to offer integrated professional legal services in the

Netherlands, Belgium, Luxembourg and Switzerland.

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international law and tax law firms makes Loyens & Loeff

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Editorial boardFor contact, mail: eutaxalert@loyensloeff.com:

● René van der Paardt (Loyens & Loeff Rotterdam)

● Thies Sanders (Loyens & Loeff Amsterdam)

● Dennis Weber (Loyens & Loeff Amsterdam;

University of Amsterdam)

Editors● Patricia van Zwet

● Bruno da Silva

Although great care has been taken when compiling this newsletter, Loyens & Loeff N.V. does not accept any responsibility whatsoever for any

consequences arising from the information in this publication being used without its consent. The information provided in the publication is intended

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