Agenda of the ECJ VAT cases – Next 2 cases will be dealt with on January 13, 2022

January 13, 2022

AG Opinion in C-141/20 (Norddeutsche Gesellschaft für Diakonie)

A German referral on VAT grouping rules om whether the member of a VAT group is the taxable person instead of the VAT group

• Is the second subparagraph of Article 4(4) in conjunction with Article 21(1)(a) and Article 21(3) of Sixth Council Directive 77/388/EEC 1 of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (Directive 77/388/EEC) to be interpreted as permitting a Member State to designate, instead of the VAT group (‘Organkreis’, group treated as a single entity for tax purposes), a member of the VAT group (‘Organträger’, controlling company) as the taxable person?
• If question 1 is answered in the negative: Can the second subparagraph of Article 4(4) in conjunction with Article 21(1)(a) and Article 21(3) of Directive 77/388/EEC be invoked in this regard?
• Must a strict or lenient standard be applied in the assessment to be carried out in accordance with paragraph 46 of the Larentia + Minerva judgment 2 of the Court of Justice of 16 July 2015, C-108/14 and C-109/14 (EU:C:2015:496, paragraph 44 and 45), as to whether the requirement of financial integration contained in the first sentence of point 2 of Paragraph 2(2) of the Umsatzsteuergesetz (Law on turnover tax) constitutes a permissible measure which is necessary and appropriate for attaining the objectives seeking to prevent abusive practices or behaviour or to combat tax evasion or tax avoidance?
• Are Article 4(1) and the first subparagraph of Article 4(4) of Directive 77/388/EEC to be interpreted as permitting a Member State to regard a person as not being independent within the meaning of Article 4(1) of Directive 77/388/EEC if that person is integrated into the undertaking of another undertaking (‘Organträger’, controlling company) in financial, economic and organisational terms in such a way that the controlling company is able to impose its will on the person and thus prevent the person from forming his own will, which diverges from that of the controlling company?

Judgment in C-156/20 (Zipvit)

A UK referral asking whether a taxable person, who received supplies of services which were at the time treated by Royal Mail as exempt, but which were (following case C-357/07) actually subject to VAT, was entitled to an input tax credit in respect of those supplies.  Royal Mail did not charge VAT on its invoices to Zipvit (they mentioned that the supplies were exempt) and the contract was silent on VAT.