III.1. Court of Justice of the European Union
Judgment of the Court of 22 March 2018, In Joined Cases C‑688/15 and C‑109/16: References for a preliminary ruling. Deposit-guarantee and investor-compensation schemes. Directive 94/19/EC. Article 1(1). Deposits. Temporary situations deriving from normal banking transactions. Directive 97/9/EC. Second subparagraph of Article 2(2). Money owed to or belonging to an investor and held on his behalf by an investment firm in connection with investment business. Credit institution which issues transferable securities. Funds transferred by individuals to that institution in respect of subscription to future transferable securities. Application of Directive 2004/39/EC. Insolvency of that institution before the transferable securities in question are issued. Public undertaking entrusted with the deposit-guarantee and investor-compensation schemes. Ability to rely on Directives 94/19/EC and 97/9/EC against that undertaking).
“Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes, on the one hand, and Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, on the other, must be interpreted as meaning that claims relating to funds which were debited from accounts that individuals held with a credit institution and credited to accounts opened in that institution’s name, in respect of subscription to future transferable securities of which that institution was to be the issuer, in circumstances where owing to that institution’s insolvency those securities were ultimately not issued, fall within both the investor-compensation schemes provided for by Directive 97/9 and the deposit-guarantee schemes provided for by Directive 94/19.
Article 2(3) of Directive 97/9 must be interpreted as meaning that, in a situation where claims fall within both the deposit-guarantee schemes provided for by Directive 94/19 and the investor-compensation schemes provided for by Directive 97/9, and the national legislature has not directed such claims to a scheme under one or other of those directives, the court dealing with the case may not decide itself, on the basis of that provision, which scheme the holders of those claims may benefit from. On the contrary, in such a situation it falls to the holders of the claims to choose to be compensated by one or other of the schemes laid down in national law to implement those two directives.
Article 1(1) of Directive 94/19, as amended by Directive 2009/14, and Article 1(4) and the second subparagraph of Article 2(2) of Directive 97/9, must be interpreted as being capable of being relied upon by individuals before the national courts in support of claims for compensation against a public undertaking entrusted, in a Member State, with the deposit-guarantee and investor-compensation schemes.”
Judgment of the Court of 22 March 2018, In Joined Cases C‑327/16 and C‑421/16: Reference for a preliminary ruling. Direct taxation. Freedom of establishment. Mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States. Directive 90/434/EEC. Article 8. Exchange of securities. Capital gains relating to that transaction. Deferred taxation. Capital losses upon the subsequent transfer of securities received. Tax competence of the State of residence. Difference in treatment. Justification. Preservation of the allocation of fiscal competence between Member States.
“Article 8 of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, as amended by the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, as adjusted by Decision 95/1/EC, Euratom, ECSC of the Council of the European Union of 1 January 1995, must be interpreted as meaning that it does not preclude legislation of a Member State pursuant to which the capital gain resulting from an exchange of securities falling within the scope of that directive is established when the transaction occurs, but is taxed in the year in which the event putting an end to the deferred taxation occurs: in this case, the transfer of the securities received in exchange.
Article 8 of the Directive 90/434, as amended by the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, as adjusted by Decision 95/1, must be interpreted as meaning that it does not preclude legislation of a Member State that provides for the taxation of the capital gain relating to an exchange of securities, in a case where taxation of the gain has been deferred, upon a subsequent transfer of the securities received in exchange, even though that transfer does not fall within the fiscal competence of that Member State.
Article 49 TFEU must be interpreted as meaning that it precludes legislation of a Member State which, in a situation where the subsequent transfer of securities received in exchange does not fall within the fiscal competence of that Member State, provides for taxation of the capital gain that is subject to tax deferral upon that transfer without taking into account any capital loss occurring at that time, whereas account is taken of such a capital loss when the taxpayer holding the securities is resident for tax purposes in that Member State on the date of the transfer. It is for the Member States, in compliance with EU law and, in the present case, the freedom of establishment in particular, to provide detailed rules for offsetting and calculating that capital loss.”
Judgment of the Court of 20 March 2018, Case no. C-524/15: Reference for a preliminary ruling. Value added tax (VAT). Directive 2006/112/EC. Failure to pay VAT due. Penalties. National legislation which provides for an administrative penalty and a criminal penalty for the same acts. Charter of Fundamental Rights of the European Union. Article 50. Ne bis in idem principle. Criminal nature of the administrative penalty. Existence of the same offence. Article 52(1). Limitations to the ne bis in idem principle. Conditions.
“Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation in accordance with which criminal proceedings may be brought against a person for failing to pay value added tax due within the time limits stipulated by law, although that person has already been made subject, in relation to the same acts, to a final administrative penalty of criminal nature for the purposes of Article 50 of the Charter, on condition that that legislation
- pursues an objective of general interest which is such as to justify such a duplication of proceedings and penalties, namely combating value added tax offences, it being necessary for those proceedings and penalties to pursue additional objectives,
- contains rules ensuring coordination which limits to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings, and
- provides for rules making it possible to ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.
It is for the referring court to ensure, taking into account all of the circumstances in the main proceedings, that the actual disadvantage resulting for the person concerned from the application of the national legislation at issue in the main proceedings and from the duplication of the proceedings and penalties that that legislation authorises is not excessive in relation to the seriousness of the offence committed.”
III.2. Constitutional Court
Judgment of the Constitutional Court no. 92/2018 of 20 February, Case No. 449/17: Judges unconstitutional, for violation of the prohibition to create retroactive taxes, established in Article 103 (3) of the Constitution of the Portuguese Republic, the Article 154 of Law 7-A/2016, of 30 March, in the segment in which, by giving a merely interpretative character to paragraph 7 of article 7 of the Stamp Duty Code, added by Article 152 of the same Law, determines the applicability, in tax years prior to 2016, of the rule of the same paragraph 7, in conjunction with article 7, paragraph 1, e) of the aforementioned Code, in the wording given by Law no. 107-B/2003, of 31 December , leading to the sense that the stamp duty exemption does not cover management fees charged by the management companies to the pension funds they hold managed.
Judgment of the Constitutional Court no. 130/2018 of March 13, Case No. 690/17: Judges unconstitutional the rule that determines that the legal regime applicable to an application for voluntary retirement that doesn’t depend on verification of incapacity is the result of the law in force on the date on which the order is issued to recognize the right to retire, resulting from the interpretation of Article 43 (1) of the Retirement Statute, as amended by Law 66-B / 2012 , of 31 December.
Judgment of the Constitutional Court no. 132/2018 of March 13, Case No. 725/2017: Judges unconstitutional the rule contained in Article 50 (1) (b) and (2) of the Legal Regime of Driving Instruction, approved by Law no. 14/2014, of March 18, interpreted as revoking the professional title to the driving instructor convicted of a crime practiced in exercise of his profession by a sentence that does not apply an accessory penalty of prohibition or suspension of the exercise of that activity automatically operate, without being weighed, by the Institute for Mobility and Transports, the necessary elements for the assessment of the affectation, by that condemnatory decision, of the trustworthiness of the instructor, and interprets the norms contained in article 15, paragraph 1 (a) and (2) of the Legal Regime of Driving Instruction, approved by Law no. 14/2014 of March 18, in the sense that the lack of trustworthiness therein provided as a consequence of a criminal conviction to restrict to cases in which this sentence applies an accessory penalty of disqualification, prohibition or suspension of the exercise of driving education activity.
III.3. Courts of Justice
Judgment of the Court of Appeal of Porto, March 8, Case no. 4208 / 16. 9T8OAZ.P1: Junction of documents. Cause of asking. Principle of the device. Social pact. Deliberation of the extraordinary general meeting.
Judgment of the Court of Appeal of Guimarães, March 8, Case No. 826 / 14.8TBGMR-F.G1: Insolvency proceedings. Fortuitous insolvency. Exemption from the remaining liability.
Judgment of the Court of Appeal of Guimarães, March 8, Process nº 674 / 16.0T8GMR-I.G1: Action for the subsequent verification of credits. Expiry. Informal knowledge. Contract promise.
Judgment of the Court of Appeal of Évora, March 8, Case No. 1820/16.0T8STR.E1: Banking Institution. Duty to inform.
III.4. Administrative and Tax Courts
Judgment of the Supreme Administrative Court of March 14, 2018, Case No. 01161/17: Exchange. Building. Resale. Expiry. Exemption.
Judgment of the Supreme Administrative Court of March 14, 2018, Case No. 0303/17: IRS. Life insurance. Insurance premium. Premium paid by the employer.
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