Pavlos Eleftheriadis, Democracy in the Eurozone (May 15, 2013). WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming); Oxford Legal Studies Research Paper No. 49/2013. Available at SSRN
In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union – and the Eurozone within it – can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.
Fiscalitate.TVA: C‑271/12, Petroma Transports SA, hotararea din 8 mai 2013, nepublicata (*)
1) Dispozițiile din A șasea directivă 77/388/CEE a Consiliului din 17 mai 1977 privind armonizarea legislațiilor statelor membre referitoare la impozitele pe cifra de afaceri – sistemul comun al taxei pe valoarea adăugată: baza unitară de evaluare, astfel cum a fost modificată prin Directiva 94/5/CE a Consiliului din 14 februarie 1994, trebuie interpretate în sensul că nu se opun unei reglementări naționale, precum cea în discuție în litigiul principal, în temeiul căreia dreptul de deducere a taxei pe valoarea adăugată poate fi refuzat unor persoane impozabile, destinatare ale unor servicii, care dețin facturi incomplete, chiar dacă acestea din urmă sunt completate ulterior prin furnizarea de informații prin care se urmărește dovedirea caracterului real, a naturii și a valorii operațiunilor facturate după adoptarea unei astfel de decizii de refuz.
2) Principiul neutralității fiscale nu se opune ca autoritatea fiscală să refuze restituirea taxei pe valoarea adăugată plătite de o societate prestatoare de servicii în cazul în care exercitarea dreptului de deducere a taxei pe valoarea adăugată aferente acestor servicii a fost refuzată societăților destinatare ale serviciilor respective ca urmare a neregulilor constatate în facturile emise de acea societate prestatoare de servicii.
Fiscalitate. TVA: Cauza C-142/12 , Marinov, hotărârea din 8 mai 2013, nepublicată (*)
1) Articolul 18 litera (c) din Directiva 2006/112/CE a Consiliului din 28 noiembrie 2006 privind sistemul comun al taxei pe valoarea adăugată trebuie interpretat în sensul că acesta privește și încetarea activității economice impozabile rezultate din radierea persoanei impozabile din registrul taxei pe valoarea adăugată.
2) Articolul 74 din Directiva 2006/112 trebuie interpretat în sensul că se opune unei dispoziții naționale care prevede că, în cazul încetării activității economice impozabile, baza de impozitare a operațiunii este „valoarea de piață” a bunurilor existente la momentul acestei încetări, cu excepția cazului în care această valoare corespunde în practică valorii reziduale a bunurilor menționate la acea dată și este astfel luată în considerare evoluția valorii acestor bunuri între data achiziționării lor și cea a încetării activității economice impozabile.
3) Articolul 74 din Directiva 2006/112 are efect direct.
Redam in extenso o stire chiar interesanta [sursa]:
Plans for EU-wide recognition of inheritance claims have fallen victim to Ireland’s projected second referendum on the Lisbon treaty. The European Commission has postponed a controversial plan to have wills and inheritance claims recognised across member states until after the Irish referendum, expected in the autumn.
Both Commission President José Manuel Barroso and Catherine Day, the secretary-general, requested that the proposal be put on hold, for fear of negative reactions in the Irish Republic on the sensitive matter of family inheritance ahead of the crucial referendum.
Jacques Barrot, the European commissioner for justice, freedom and security, was to publish the proposal in March, but was halted just weeks before. “Officially we were told it was because of the referendum, that it might have a negative influence,” said one EU official. The delay mirrors a decision by the Commission not to propose legislation on corporate tax ahead of the first Irish referendum in June last year.
Although Ireland, as well as the UK, would be offered an ‘opt-in’ to the new legislation, even discussing it is seen as a risk, because it could generate resentment about the EU among the electorate. In both countries, opponents depict it as a potential threat to their common law systems. The fear for both countries would be a proposal that allowed foreign laws on inheritance to be applied in their own courts. This could, for instance, see relatives ‘claw back’ property or items given away by the deceased during their lifetime – a mechanism allowed under many member states’ succession laws, but precluded by Irish and UK law.
Other member states argue that legislation is needed to remove legal uncertainty in the increasingly common cases of EU citizens living in one member state with certain inheritance rules, but with property in another member state subject to different rules. There is already anger among some countries that an opt-in is permitted to Ireland and the UK on police and judicial co-operation, which allows them to negotiate on a proposal and choose not to adopt it at the end. “In particular the French are angry at the way this is operating,” an official said. One of the factors in the call by Barroso and Day to defer discussion of the proposal is thought to be a desire to allay UK and Irish fears about the proposal, encouraging them to opt in from the start.
The formal Commission position, as expressed by a spokesman, is that “this is a very sensitive issue and we want to make sure we have the best proposal possible”. He denied that the Irish referendum or the opt-in have anything to do with the delay in the proposal’s publication, adding: “The Commission services are still at work on it and I don’t know when we will be able to have a final text.”
A conference on the issue organised by the Czech presidency of the EU on 20-21 April was hamstrung because there was no legislation to discuss. The postponement has also created headaches for Sweden, which will have to set aside time for discussions on the proposal among member states when it takes over the EU’s rotating presidency on 1 July.
A group of financial experts has put forward 31 detailed recommendations to strengthen supervision of the EU’s financial institutions and markets.
Recommendations include developing common rules for investment funds across all 27 EU countries, capping bankers’ bonuses in line with shareholder interests and establishing a crisis management system for the EU’s financial sector.
Two new EU control systems are also advocated – for financial supervision and managing risk.
„Now it is for the commission to assess and act. Next week on 4 March the commission will give a first preliminary assessment and response to the main conclusions of the report,” said commission president José Manuel Barroso. „Workers and families across Europe and the world have suffered the consequences of hubris in financial markets. The commission is determined that this must not happen again.”
The expert group was chaired by former International Monetary Fund director Jacques de Larosière. Its recommendations will be discussed at an informal meeting of EU leaders on 1 March, and again later in the month at the more formal spring summit.
Raportul poate fi citit integral aici.
Cartesio ruling has implications for EU exit taxes
The European Court of Justice has ruled that member states must be careful not to interfere with freedom of establishment if it wants to place any restrictions on a taxpayer that wants to move to another member state.
Hungarian company Cartesio has lost its appeal to the ECJ on December 16 2008 over its plans to move its operational headquarters to Italy but remain under Hungarian company law. Hungarian law does not allow a company incorporated in Hungary to transfer its operational headquarters to another member state without having paid any taxes associated with the disposal of its assets.
„The Cartesio case gave the ECJ the chance to elaborate on issues raised from other cases. In fact the ruling refers to other cases as often as Cartesio itself,” said Tamas Feher, a tax lawyer at CMS Cameron McKenna in Hungary.
The movement of companies from one EU member state to another has been controversial for some time. In the Daily Mail case in 1988 the ECJ concluded that provisions regarding the life and death of a company were determined solely by the member state under whose laws the company was created. It allowed the UK to impose an exit tax on the newspaper if it wanted to move its effective management to another member state
„The reason why tax practitioners have got excited by the Cartesio case is that they hoped the judgement would finally overturn the decision held in the Daily Mail case,” said Peter Cussons, a tax partner at PricewaterhouseCoopers in the UK.
The ECJ had already ruled in Lastyrie that an immediate exit tax breaches the European Treaty’s freedom of establishment provision. However the UK is unique among EU member states in that it employs a treasury consent procedure for company migration. Because of this, it was thought that the Daily Mail decision may still be applicable.
„The Cartesio ruling has shown that Daily Mail is dead law in the UK,” said Cussons. „Paragraphs 112 and 113 of Cartesio say that where a company becomes subject to the law of another member state, any restriction in either the state of incorporation, for an example an exit tax, or in the state to which the principal place of administration is transferred has to be justifiable with regards to the freedom of establishment.”
„The Cartesio ruling implies that countries should not be able to impose exit taxes on companies as it may dissuade the company from moving to another member state,” said Feher.
Although the judgement in the Cartesio case does not deal with the precise situation in the UK, it is unlikely the European Commission would allow the UK government to levy an exit tax on taxpayers wishing to move.