CASE-LAW – JANUARY 2018

Daniel Amarale-legal

III. CASE-LAW

III. 1 Court of Justice of the European Union
Judgment of the Court of January 17, Case no. C-676/16: Reference for a preliminary ruling. Prevention of the use of the financial system for the purpose of money laundering and terrorist financing. Directive 2005/60/EC. Scope. Article 2(1), point 3(c) and Article 3, point 7(a). Business activity of an undertaking consisting in the sale of companies already entered in the Register of Companies and formed solely for the purposes of sale. Sale by means of the transfer of the undertaking’s holding in the ready-made company.

Summary:
“Article 2(1), point 3(c) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, read in conjunction with Article 3, point 7(a) of that directive, must be interpreted as meaning that a person, such as that at issue in the main proceedings, whose commercial activity consists in selling companies which it formed itself, without any prior request on the part of its potential clients, for the purposes of sale to those clients, by means of a transfer of its shares in the capital of the company being sold, falls within the scope of those provisions.”
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62016CJ0676&qid=1517484738264&from=PT

Judgment of the Court of January 18, Case no. C-249/15: References for a preliminary ruling. Article 56 TFEU. Freedom to provide services. Restrictions. Motor vehicle leased by a resident of one Member State from a leasing company established in another Member State. Registration tax calculated proportionately to the duration of use of the vehicle. Requirement of approval from the national tax authorities before use. Justification. Prevention of circumvention of tax rules and fraud or abuse. Safeguarding States’ powers of taxation. Proportionality.

Summary:
“Article 56 TFEU must be interpreted as precluding a Member State’s legislation and administrative practice, such as those at issue in the main proceedings, under which:
– use by a resident in that Member State of a vehicle leased from a leasing company established in another Member State for the purpose of temporary use of that vehicle in the first Member State, in return for payment of a proportionate registration tax calculated proportionately to the duration of that use, is subject to prior approval of that payment by that Member State’s tax authorities, without which the vehicle may not, in principle, be used in its territory, and the possibility of making immediate use of such a vehicle in that first Member State whilst the taxpayer’s application to pay a proportionate registration tax on that vehicle based on the duration of use in that first Member State is being processed, is subject to advance payment of the full amount of registration tax, with provision made for repayment of the surplus paid, plus interest, if and when the taxpayer is eventually authorised by the tax authorities to pay the registration tax calculated proportionately.”
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62015CJ0249&qid=1517484738264&from=EN

Judgment of the Court of January 18, Case no. C‑45/17: Reference for a preliminary ruling. Free movement of capital. Articles 63 TFEU and 65 TFEU. Regulation (EC) No 883/2004. Article 11. Levies on income from assets contributing to the financing of the social security scheme of a Member State. Exemption for nationals of the European Union affiliated to a social security scheme of another Member State. Natural persons affiliated to a social security scheme of a third country. Difference of treatment. Restriction. Justification.

Summary:
“Articles 63 TFEU and 65 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which a national of that Member State who resides in a third country other than a Member State of the European Economic Area (EEA) or the Swiss Confederation and is affiliated to a social security scheme in that third country is subject, in that Member State, to levies on income from assets for the purpose of contributing to the social security scheme established by that Member State, whereas an EU national covered by a social security scheme of another Member State is exempted therefrom by reason of the principle that the legislation of a single Member State only is to apply in matters of social security pursuant to Article 11 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.”
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62017CJ0045&qid=1517484738264&from=EN

 

III. 2 Constitutional Court
Judgment of the Constitutional Court no. 848/2017 of January 22, Case no. 281/2017: judge unconstitutional, with mandatory legal force, the rules in Article 59 (1)(2), Article 60 (1) (2), the first part of Article 61, Article 63 (1) (2), Article 64 (1), all from the General Regulation of rates, prices, other revenues of the municipality of Lisbon, republished by Notice no. 2926/2016, published in the Official Gazette, 2nd series of March 4th 2016 – these rules concerning Municipal Civil Protection Tax.
https://dre.pt/home/-/dre/114555190/details/maximized

 

III. 3 Courts of Justice
Judgment of Oporto’s Court of Appeal of 8 January 2018, Case no. 80/12.6TBMAI-C.P1: Objection against an attachment. Timeliness. Lack of notification. Attachment. Invalidity.
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/5d2f3b30a77074298025821e003639fc?OpenDocument

Judgment of Oporto’s Court of Appeal of 11 January 2018, Case no. 4075/16.2T8MTS-C.P1: Expiry of the right of withdrawal of the rental contract. Knowledge of exceptions.
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/4cfc210fd88d6a6980258224003f4ace?OpenDocument

 

III. 4 Administrative and Tax Courts
Judgment of the Central Administrative Court South of January 11, Case no 301/12.5BELLE: Debt of compensatory interest. Real Estate Transfer Tax.
http://www.dgsi.pt/jtca.nsf/170589492546a7fb802575c3004c6d7d/4c6bad4aadff7f0480258212005c9198?OpenDocument

Judgment of the Supreme Administrative Court of January 17, Case no. 0284/15: Municipal Property Tax Code. Acquisition of a building for resale.
http://www.dgsi.pt/jsta.nsf/35fbbbf22e1bb1e680256f8e003ea931/6a0a925cd46fff7380258220003b4a84?OpenDocument

 

 

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