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On 22 June 2016, the the EU Court of Justice (CJEU) ruled in the Dutch preliminary ruling case Gemeente Woerden (C-267/15) that where a taxable person has had a building constructed and has sold that building at a loss, this person may deduct all of the VAT paid in respect of the construction of that building, and not only a part of that tax in proportion to the parts of the building which its purchaser uses for economic activities. The fact that that purchaser allows the building at issue to be used without charge is of no importance in that regard.




On 31 May 2016, the OECD opened a public consultation (until 30 June) on creating a multilateral instrument to implement the tax treaty-related BEPS measures by modifying bilateral tax treaties (Action 15 of the BEPS Action Plan). An Ad Hoc Group of now 96 countries charged with developing such legal instrument was set up in May 2015. The Group aims to conclude its work and open the multilateral instrument for signature by the end of this year.


The OECD invites comments specifically on the implementation of the multilateral agreement and on the matters it will deal with, namely a mutual agreement procedure including an optional provision for binding arbitration and provisions on hybrid mismatch arrangements, tax treaty benefits in inappropriate circumstances, and the artificial avoidance of "permanent establishment" status.


The OECD also updated its BEPS timetable: The next consultation papers the OECD is planning to issue are:


-       Design and operation of the group ratio rule for interest deductions: 6 July 2016

                 (deadline: 3 August 2016).

-    Hybrid mismatches and branches: 15 July 2016 (deadline: 28 July 2016).

-    Interest limitation in the banking and insurance sectors: 18 July 2016

                 (deadline: 29 August).  



Germany is going to change its tax law to allow donations to foreign charities the same inheritance tax treatment as donations to German charities. This commitment has led to the closing of an infringement proceeding against the country on 25 February 2016, as the Commission announced on 31 March.


Previously, domestic charities had been granted an exemption from German inheritance tax, whereas similar charities established in other EU/EEA States only enjoyed this exemption if their state of residence granted an equivalent or reciprocal exemption to comparable German charities.




On 22 March 2016, the OECD released a standardised electronic format for the exchange of country-by-country (CbC) reports between jurisdictions as well as a user guide. This CbC XML scheme is part of the OECD’s work to ensure the swift and efficient implementation of the BEPS measures. CbC reports should be electronically transmitted between the competent authorities.


The move is expected to help tax administrations obtain a complete understanding of the way in which multinational enterprises (MNEs) structure their operations.


Exchanges of CbC reports will start in 2018 containing information on the year 2016.


The country-by-country reporting template applies to groups with an annual consolidated revenue in the immediately preceding fiscal year of at least EUR 750 million.




Since 23 March 2016, the European Commission consults on the establishment of an EU-wide insolvency framework, following the publication of an initial inquiry into insolvency law harmonisation earlier this month. The European Commission aims to support businesses in financial difficulties while at the same time maximising the value received by creditors, shareholders, employees, investors, tax authorities, and other parties concerned. The Commission intends to present a legislative proposal on insolvency by the end of 2016. Overall efficiency and effectiveness of insolvency frameworks should be increased while also building on national regimes.


Closing date is 14 June 2016.





On 22 October 2015, the CJEU rendered its judgment in case C-277/14 (PPUH Stehcemp) referred to it by the Polish Supreme Administrative Court. The EU Court holds that national law may not refuse the deduction of the VAT due or paid in respect of goods delivered, on the grounds that the invoice was issued by a trader which is to be regarded as non-existent, and that it is impossible to determine the identity of the actual supplier of the goods. This does not apply where it is established on the basis of objective factors that that taxable person knew, or should have known, that the transaction was connected with VAT fraud. When establishing this, the taxable person cannot be required to carry out checks which are not his responsibility.



On 22 October 2015, the EU Court of Justice (CJEU) decided in the Swedish preliminary ruling case C-264/14, Hedqvist, that no VAT is due on the exchange of a "traditional" currency into the digital currency (and vice versa). This means that Bitcoins get the same VAT treatment as traditional currencies.


Source: CFE



On 7 August 2015, the OECD published practical guidance to assist government officials and financial institutions in the implementation of the OECD/G20 "global" Common Reporting Standard (CRS) on Automatic Exchange of Financial Account Information which the OECD had presented in February 2014 (full version in July 2014) and which has been included EU law in January 2015. The Implementation Handbook specifies which of the CRS´s options are granted under the EU Directive and identifies areas for alignment with FATCA. The OECD guidance is not legally binding but could contribute to a more uniform application of the CRS if implemented consistently. It addresses the operational and transitional challenges resulting from the staggered implementation of the Standard. It also contains answers to frequently asked questions from business and governments. As the OECD points out, the Handbook is intended to be a "living" document and will be updated on a regular basis.


Source: CFE



On 25 July 2015, the German weekly magazine Der Spiegel reported that German Finance Minister Wolfgang Schäuble is open towards the idea of a Eurozone budget which could be funded by VAT revenues or by a surcharge on other taxes, raised by a Euro Finance Minister. These considerations are based on the "Five Presidents´ Reports" by European Commission President Jean-Claude Juncker, Euro Summit President Donald Tusk, Eurogroup President Jeroen Dijsselbloem, the European Central Bank President Mario Draghi and European Parliament President Martin Schulz, presented on 22 June 2015. The paper foresees the introduction of a Eurozone treasury. The Eurozone reforms should be completed by 2025.


Source: CFE



On 28 November 2014, the finance ministers of France, Germany and Italy sent a joint letter to EU tax Commissioner Pierre Moscovici, asking the Commission to propose a comprehensive EU Directive to counter BEPS (base erosion and profit shifting by multinational enterprises). The Directive should contain a “general principle of effective taxation”, according to which the benefits of the Parent-Subsidiary and the Interest & Royalties Directive should be denied if they do not lead to effective taxation. Member states should adopt this Directive by the end of 2015. The ministers express their support for the European Commission´s recent initiative to oblige member states to automatically exchange among each other nformation on international tax rulings, including transfer pricing matters. They also require registers of beneficial owners of companies, to be   available to tax administrations.


Other issues touched upon are patent box regimes, agreed counter-measures against tax havens and a common GAAR (general anti abuse rules).



On 5 December 2014, the European Commission has published a list of national contact points
for any questions of operators regarding the 2015 changes to VAT on electronic,
telecommunication and broadcasting services.




On 20 November 2014, the European Commission published a comprehensive cross-country study on taxes on wealth and transfer of wealth in the EU member states, including inheritance and gift taxes, real estate and land taxes and net-wealth taxes. While inheritances are taxed in 20 member states, gifts in 21 and real estate in every member state, taxes on net-wealth are rare. Though several countries have “environmental” taxes on the possession of certain assets, only three member states use net-wealth as a tax base.

The Commission also made available the presentations given at the ECFIN workshop of 17 November 2014 in Brussels.


Source: CFE



On 19 November 2014, Switzerland has signed, as the 52nd country, the “multilateral competent authority agreement”, dealing with the practical implementation of the OECD global standard on automatic exchange of financial information in tax matters. The decision is still subject to parliamentary approval and possibly a plebiscite.


Source: CFE




On 30 October 2014, the European Commission issued a staff working document setting out five options for redesigning from scratch a destination-based EU VAT system. The paper is a deliverable announced in the Commission´s 2011 Communication on the future of VAT and will be followed up by a final report on the quantitative effects of each of the five options in spring 2015.


Source: CFE



On 29 October 2014, 51 countries signed a multilateral declaration on their implementation of the new G20/OECD global standard on annual automatic exchange of tax information endorsed by the G20 finance ministers in September 2014. Most jurisdictions have committed to implementing this standard on a reciprocal basis with all interested jurisdictions. Governments also agreed to require that beneficial ownership of all legal entities be available to tax authorities and exchanged with treaty partners.





The OECD Council approved yesterday the contents of the 2014 Update to the OECD Model Tax Convention. The Update, which was previously approved by the Committee on Fiscal Affairs on 26 June, will be incorporated in a revised version of the Model Tax Convention that will be published in the next few months.


The 2014 Update reflects work on the Model Tax Convention that was carried out between 2010 and the end of 2013; it does not, therefore, include any results from the ongoing work on the BEPS Action Plan.


The 2014 Update includes the changes to Article 26 and its Commentary that were approved by the OECD Council on 17 July 2012.  It also includes the final version of a number of changes that were previously released for comments.


The introduction to the contents of the 2014 Update provides information on how comments received on some of the discussion drafts listed above were dealt with. In addition, the reports on “Tax treaty issues related to emissions permits/credits” and “Issues related to Article 17 of the OECD Model Tax Convention” provide additional background for some of the changes included in the Update (these reports will be added to the section of the full version of the Model Tax Convention that includes previous reports on the Model Tax Convention). 


(release by CFE)


The European Commission brought a series of infringement proceedings against eight Member
States for failure to comply with their Obligations under the directive on the common system of
value added tax.
The actions relate to the special scheme for travel agents Czech Republic,
Finland, France, Greece, Italy, Poland and Portugal.
The Commission considers that the special scheme for travel agents is applicable only to sales of
travel services to travellers. It complains that the Member States concerned authorised the
application of that scheme to sales of travel services to any type of customer. In its judgments
of today, the Court acknowledges that there are particularly significant differences
between the language versions of the directive, some using the term ‘traveller’ and/or the
term ‘customer’, at times varying the use of those terms from one provision to another.
The Court points out that where there are discrepancies between the various languag
e versions of an EU Instrument, the provision at issue must be interpreted by reference to the general scheme
and purpose of the rules of which it forms part. In that regard, the Court considers that an approach
consisting in applying the special scheme to any type of customer is the best way of achieving the
aims of the scheme. It enables travel agents to benefit from simplified rules regardless of the type
of customer to whom they provide their services, while encouraging a fair distribution of receipts
between the Member States. Furthermore, the Court has already interpreted the word ‘traveller’ by
giving it a meaning wider than that of final consumer
Therefore, since it considers that the provisions of the special scheme are not
Limited to sales of travel services to travellers, the Court dismisses in their entirety the
Commission’s Actions against Poland, Italy, the Czech Republic, Greece, France, Finland and Portugal.
(Court of Justice of the European Union; Press Release no. 120/13)


Contributions due for benefits cannot be assessed within an indefinite
period of time after the benefit has been received. Instead, the
legislature must achieve a balance between the public interest in the
levying of the contribution and the interest of the person liable to pay
the contribution in obtaining clarity about the extent of the payment.
This is what the First Senate of the Federal Constitutional Court
decided in an order that was published today. At the same time, the
Senate declared a provision of the Bavarian Municipal Charges Act
(Bayerisches Kommunalabgabengesetz) incompatible with the constitutional
principle of legal certainty because the provision does not consider at
all that the person liable to pay the contribution has an interest in a
time limit for the levying of charges. The Land legislature was
requested to enact a constitutional provision by 1 April 2014.

Essentially, the decision is based on the following considerations:

1. According to Bavarian law, the time-limit for the assessment of
municipal contributions is four years. As a general rule, the time-limit
starts to run at the end of the year in which the duty to pay the
contribution has arisen. In this regard, the Bavarian Municipal Charges
Act makes reference to the Federal Fiscal Code. Article 13 sec. 1 no. 4
letter b double letter cc indent 2 of the Bavarian Municipal Charges
Act, however, makes special provision for the case of invalidity of the
rules on contribution: in this case, the time-limit starts to run only
at the end of the calendar year in which valid rules have been

2. From 1992 to 1996, the complainant was the owner of built-up property
which was connected to the local drainage system. During an inspection
of the property in 1992, the local authorities found out that the top
floor of the building had been converted. However, they levied a
drainage construction contribution for the converted surface of the top
floor from the complainant only in a subsequent assessment order of 5
April 2004. The order was based on Rules Governing Contributions and
Fees which supplemented the Drainage Rules of 5 May 2000. To remedy the
voidness of the previous Rules, the local authorities had enacted the
Rules with retroactive effect as from 1 April 1995. During the
complainant’s objection proceedings, these Rules proved void as well.
The local authorities thereupon adopted new Rules and put them into
force retroactively as from 1 April 1995. The new Rules were published
in the Municipal Gazette on 26 April 2005.

3. The action brought by the complainant against the assessment order
and against the ruling by the local authorities on the complainant’s
objection was unsuccessful before the Administrative Court and the
Higher Administrative Court.

4. The constitutional complaint lodged against these decisions is
admissible and well-founded to the extent that it challenges a violation
of the constitutional principle of legal certainty.

a) If no independent new violation of the right to a hearing in court
committed by the court of appeals is alleged, a complaint that alleges a
violation of this right does not need to challenge also the ruling of
the court of appeals to satisfy the requirement that all legal remedies
must have been exhausted before a constitutional complaint is lodged.

b) In the case at hand, the constitutional standards for the
permissibility of retroactive laws are not violated. As far as the
complainant is concerned, Art. 13 sec. 1 no. 4 letter b double letter cc
indent 2 of the Bavarian Municipal Charges Act does not have retroactive
effect. The Act entered into force on 1 January 1993. At that time, no
Rules existed that effectively remedied the voidness of the existing
Rules within the meaning of the provision. Such Rules with effect as
from, or before, 1 January 1993 did not enter into force at a later date
either. Irrespective of the new legislation, the period of limitation
had therefore not begun to run.

c) However, the provision in question violates Art. 2 sec. 1 of the
Basic Law (Grundgesetz – GG) in conjunction with the principle of legal
certainty, which is an essential component of the principle of the rule
of law entrenched in Art. 20 sec. 3 GG, in its manifestation as
principle of clarity and predictability of burdens.

aa) In their interaction with the fundamental rights, legal certainty
and the protection of confidence guarantee the reliability of the legal
order, which is an essential prerequisite for self-determination over
one’s own life choices and their implementation. The principle of the
protection of confidence means that the citizens must be able to rely to
a certain extent on the continuance of certain statutes. Furthermore,
under specific circumstances, the principle of the rule of law
guarantees legal certainty even if no statutes exist that give rise to
specific confidence, or if circumstances exist that are even contrary to
such confidence. In its manifestation as principle of the clarity and
predictability of burdens, the principle of the rule of law protects
against using events that occurred a long time ago and are de facto
completed as a link for imposing new burdens.

bb) If obligations to pay contributions in return for benefits link to
facts in the past, it is required under constitutional law to establish
a time-limit for the obligation to pay.

The aim of limiting payment claims of state authorities is to achieve a
fair balance between the justified interest of the public in the
comprehensive and complete realisation of these claims on the one hand,
and the citizens’ interest, which is worthy of protection, on the other
hand, in no longer having to expect at some point in time to be liable
to make a contribution, and in being able to plan accordingly. It is a
characteristic of statutes of limitation that they apply without
evidence that confidence existed in an individual case, without
confidence that is typically assumed, and in particular without
confidence being actively exercised. Instead, they derive their
justification and their necessity from the principle of legal certainty.

When levying contributions in return for benefits, the legislature is
obliged to enact statutes of limitation, or at least to ultimately
ensure that such contributions cannot be assessed for an unlimited time
after the benefit has been received. Contributions derive their
legitimation from compensating a benefit that the persons concerned
received at a certain point in time. The longer ago this point in time
was at the time when the contributions are assessed, the more does the
legitimation to assess such contributions decrease. The principle of
legal certainty demands that the recipient of a benefit obtains clarity
in reasonable time about whether, and if so, to what extent,
contributions must be paid in return for the benefits received.

cc) In Art. 13 sec. 1 no. 4 letter b double letter cc indent 2 of the
Bavarian Municipal Charges Act, the legislature failed to achieve the
necessary balance between legal certainty on the one hand and the
validity of the law and the fiscal interest, on the other hand. By
postponing the beginning of the period of limitation without setting any
time limit, the legislature does not at all take into account the
citizen’s justified interest in not having to expect the assessment of
the contribution if a certain time has passed after the benefit arose.

5. As the legislature has several possibilities of remedying the
unconstitutional situation at its disposal, in the case at hand it is
only possible to declare the provision in question incompatible with the
Constitution. This has the consequence that the unconstitutional
provision may no longer be applied by courts and administrative
authorities. Pending court and administrative proceedings in which the
decision depends on this provision remain suspended or are to be
suspended until a new legislation is enacted, at the latest, however,
until 1 April 2014. If the legislature has not enacted a new legislation
until 1 April 2014, the unconstitutional provision will be void.

(Press release of the Federal Constitutional Court no. 19/2013 of April, 3rd 2013)


Despite a serious implementation deficit, the legal provisions on plea
bargaining in criminal trials are currently not yet unconstitutional.
However, the legislature has to continually assess the effectiveness of
the safeguard mechanisms that ensure compliance with the constitutional
requirements and, if necessary, improve them. So-called informal
agreements, which take place outside of the legal framework, are not
permissible. This is what the Second Senate of the Federal
Constitutional Court decided in a judgment that was delivered today. At
the same time, the Federal Constitutional Court reversed the ordinary
courts’ decisions which had been challenged by the complainants because
it found violations of the Constitution in the respective proceedings
and remitted the cases for a new decision.

The Decision is Essentially Based on the Following Considerations:

1. The complainants challenge their convictions for criminal offences
following plea bargains between the court and the parties to the case.
In the proceedings 2 BvR 2628/10 and 2 BvR 2883/10, the constitutional
complaints are also directed against § 257c of the Code of Criminal
Procedure (Strafprozessordnung – StPO), which was added by the Act on
the Regulation of Plea Bargaining in Criminal Proceedings of 29 July
2009 (Gesetz zur Regelung der Verständigung im Strafverfahren, in the
following: Verständigungsgesetz
– Plea Bargaining Act).

2. The constitutional complaints are well-founded insofar as they are
directed against the challenged decisions; with regard to the remaining
part, they are unsuccessful.

a) Criminal law is based on the principle of individual guilt, which has
constitutional status. This principle is anchored in the guarantee of
human dignity and personal responsibility (Art. 1 sec. 1 and Art. 2 sec.
1 of the Basic Law (Grundgesetz – GG), as well as in the principle of
the rule of law (Art. 20 sec. 3 GG). The government is obliged under the
Constitution to ensure the functioning of the criminal justice system.
It is the central concern of criminal proceedings to establish the real
facts of a case, without which it is impossible to implement the
substantive principle of individual guilt.

The right to a fair trial guarantees defendants to exercise their
procedural rights and to adequately ward off infringements – especially
those from governmental entities. It is primarily the task of the
legislature to design these procedural rights. A violation of the right
to a fair trial only exists if an overall assessment of the law of
procedure shows that conclusions which are compulsory under the rule of
law have not been drawn, or that rights which are indispensable under
the rule of law have been waived. In the context of this overall
assessment the requirements for a functioning criminal justice system,
including the obligation to ensure the speedy conduct of proceedings,
have to be kept in mind as well.

The right against self-incrimination and the presumption of innocence
are anchored in the rule of law and have constitutional status. In
particular, the defendant has to be in a position to decide under no
constraints and independently whether and if so, to which degree he or
she participates in the criminal trial.

b) Against this backdrop, it is true that plea bargains bear the risk
that the constitutional requirements are not fully adhered to. However,
under the Constitution the legislature is not a priori precluded from
permitting plea bargains in order to simplify proceedings. In order to
meet the constitutional demands, the legislature deemed it necessary to
establish explicit legal requirements for plea bargains, which, while
significant in practice, have always remained controversial. With the
Plea Bargaining Act, the legislature did not introduce a new
“consensual” class of proceedings, but integrated plea bargains into the
existing system of criminal procedure.

aa) The Plea Bargaining Act points out explicitly that the court’s
obligation to investigate the facts ex officio remains untouched. The
legislature thus clarified that a plea bargain as such can never
constitute the sole basis for a judgment, but that what is necessary is
still exclusively the court’s own conviction. Furthermore, it is
imperative that the plea bargain-based confession be verified. Insofar
as this limits the practical scope of plea bargains, it is the
inevitable consequence of introducing them into the current system of
criminal procedure. Moreover, the legal analysis can also not be
modified in the context of a plea bargain; this includes the adjustment
of penalty ranges for particularly serious or minor cases.

bb) The Plea Bargaining Act comprehensively governs the permissibility
of plea bargains in criminal proceedings. It thus prohibits what are
euphemistically called “informal” approaches during plea bargaining.
Furthermore, it limits the plea bargain to the subject-matter of the
trial. So-called “package solutions”, in which the prosecution promises
to close other investigations, are thus not permissible.

cc) Transparency and documentation of plea bargains are key aspects of
the regulatory approach. This is meant to ensure an effective control by
the public, the prosecution, and the court of appeals. Notably, the
actions in connection with the plea bargain have to be comprehensively
incorporated into the – usually public – trial. This fact also confirms
that even after a plea bargain, the judges’ conviction has to derive
from the hearing as a whole.

A violation of the duty to provide transparency and documentation will
generally render a plea bargain that has nonetheless been concluded
illegal. If a court adheres to such an illegal agreement, it will
frequently not be possible to exclude the possibility that the judgment
was based on this violation of the law.

Of particular importance is the monitoring by the prosecution. The
prosecution is not only obliged to refuse to agree to an illegal plea
bargain, but also has to lodge appeals against judgments that are based
on such an agreement. The fact that the prosecution is a hierarchical
system and has reporting obligations makes it possible that this
monitoring capacity can be exercised according to consistent standards.

dd) Finally, the Plea Bargaining Act stipulates that the defendant be
instructed under what circumstances and with which consequences the
court can deviate from the result which it had offered as a prospect.
This instruction is meant to put the defendant in a position to decide
independently about his or her cooperation in the plea bargain. If the
duty to instruct has been violated, on appeal it will regularly have to
be assumed that the confession and thus the judgment were based on this

c) The Plea Bargaining Act sufficiently ensures the compliance with the
constitutional requirements. The fact that the implementation of the
Plea Bargaining Act falls considerably short of these requirements does
not, at present, render the legal provisions unconstitutional.

aa) The legal regulatory concept would only be unconstitutional if the
envisaged protection mechanisms were so fragmentary or otherwise
insufficient that they would promote the illegal practice of “informal”
plea bargains, i.e. that the deficit in implementation would be
determined by the norm’s structure.

bb) Neither the result of the empirical study nor the statements given
in the course of the constitutional complaint proceedings make a
compelling case for the assumption that structural flaws of the
regulatory concept have led to the present implementation deficit. There
are various reasons for this. The empirical study names as the main
reason the provisions’ “lack of practicality”. This suggests a hitherto
insufficiently developed awareness that there must be no plea bargains
without compliance with the requirements of the Plea Bargaining Act.

d) The legislature has to keep a close eye on the future developments.
If the legal practice continues to deviate to a large extent from the
legal stipulations, and if the Plea Bargaining Act proves to be
insufficient to overcome the implementation deficit, the legislature
will have to counteract the misguided development with adequate
measures. If this remained undone, it would lead to a situation that is

3. The decisions by the ordinary courts that were challenged with the
constitutional complaints are incompatible with the Basic Law’s
requirements for plea bargaining in criminal proceedings.

a) The decisions that were challenged by the complainants in the
proceedings 2 BvR 2628/10 and 2 BvR 2883/10 violate their right to a
fair trial in according with the rule of law and infringe their right
against self-incrimination. In general, a plea bargain can only be
reconciled with the principle of a fair trial if, before its conclusion,
the defendant has been instructed about its limited binding effect on
the court. If a confession that was made pursuant to a violation of this
duty to instruct is incorporated into the judgment, the judgment is
based on the violation of a fundamental right, except if it can be
excluded that the inaccurate instruction was the reason for the
confession, because the defendant would have made the confession even if
he or she had been correctly instructed. The court of appeals needs to
make specific determinations on this.

b) The decision by the Regional Court that was challenged in the
proceedings 2 BvR 2155/11 violates the constitutional principle of
individual guilt because the Regional Court sentenced the complainant
largely on the basis of a formal confession that had not been verified.
Furthermore, the judgment was based on a plea bargain that had
determined the content of the conviction in an impermissible way. In
this case, the line to an unconstitutional infringement of the right
against self-incrimination had also clearly been crossed. The Regional
Court combined a difference between the two penalty limits in question –
a difference which in itself was already excessive – with the assurance
to suspend the sentence on probation, which was only possible because
the penalty range was changed to a minor case.


(Press release of the Federal Constitutional Court no. 17/2013 of 19th March 2013)


  • CJEU rules on input VAT deduction for constructing a building


  • OECD consults on Multilateral Instrument and updates BEPS timetable


  • Discriminatory taxation of legacies to foreign charities: Germany amends its legislation


  • OECD issues standardised electronic format for the exchange of BEPS country-by-country reports


  • EC launches public consultation on common insolvency framework