EU Tax Alert. CJ considers German rules on deductibility of expenses for non-resident individuals in breach of EU law (Schröder)

Transcription

1 EU Tax Alert Edition 92 May 2011 CJ considers German rules on deductibility of expenses for non-resident individuals in breach of EU law (Schröder) On 31 March 2011, the CJ gave its judgment in the Schröder case (C-450/09) finding German rules denying the right of non-resident individuals to deduct expenses related to the receipt of rental income from German immovable property incompatible with the free movement of capital. (See: Top News) IN THIS EDITION: Finnish court refers preliminary question to the CJ regarding the treatment of losses in a cross-border merger (Oy A) On 9 March 2011, the Supreme Administrative Court of Finland referred a question to the CJ for a preliminary ruling in the Oy A case (C-123/11) concerning the issue whether Finnish rules on the use of losses of a nonresident subsidiary by its Finnish parent company upon the merger of the two companies are compatible with the freedom of establishment (See: Top News) Top News State Aid / WTO Direct taxation VAT Customs Duties, Excises and other Indirect Taxes Commission proposes overhaul of energy taxation in the EU On 13 April 2011, the Commission presented a proposal to overhaul the rules on the taxation of energy products in the EU. (See: Top News) Please click here to unsubscribe from this mailing. The EU Tax Alert is an newsletter to inform you of recent developments in the EU that are of interest for tax professionals. It includes recent case law of the European Court of Justice, (proposed) direct tax and VAT legislation, customs, state aid, developments in the Netherlands, Belgium and Luxembourg and more. To subscribe (free of charge) see:

2 E U Ta x A l e r t Edition 92 May Contents Top News CJ considers German rules on deductibility of expenses for non-resident individuals in breach of EU law (Schröder) Finnish court refers preliminary question to the CJ regarding the treatment of losses in a cross-border merger (Oy A) Commission proposes overhaul of energy taxation in the EU State Aid / WTO Advocate General proposes to uphold the General Court s Gibraltar decision and not to adapt the State aid regime to accommodate harmful tax competition procedures (Commission and Spain v Gibraltar and United Kingdom) Direct taxation CJ considers Portuguese 2005 tax amnesty legislation in breach of the free movement of capital (Commission v Portugal) Portuguese court refers preliminary question to the CJ regarding the compatibility of domestic legislation on the elimination of economic double taxation with the free movement of capital (Amorim Energia) Commission refers Belgium to the CJ over its discriminatory taxation of foreign investment companies and certain collective investment funds Commission requests Belgium to amend certain discriminatory rules of its inheritance tax Commission requests Belgium to amend its rules regarding tax exemptions for certain types of real estate located in Belgium Commission requests Belgium to amend its rules on the taxation of certain capital gains Commission refers the Netherlands to the CJ over discrimination against foreign charities Commission closes infringement procedures against Portugal regarding tax rules on outbound dividends and taxation of non-residents Commission closes infringement procedure against Greece regarding outbound dividends paid to Swiss parent companies EU initiates dialogue with US regarding the Foreign VAT Account Tax Compliance Act Advocate General indicates that the sale of building land that previously qualified as agricultural land is subject to VAT Netherlands Supreme Court refers preliminary question to the CJ regarding the scope of the exemption for transactions in shares Commission requests Germany to extend VAT exemptions for sharing costs of services Commission publishes study on VAT in the public sector and exemptions in public interest Customs Duties, Excises and other Indirect Taxes Operations of preferential trade to become easier between the European Union, the partners of the Southern Mediterranean and the Western Balkans CJ rules on the CN classification of decoders with a hard disk drive (British Sky Broadcasting Group and Pace) CJ rules on Romanian pollution tax charged on first registration of motor vehicles (Tatu) CJ rules on the levy of compensatory interest related to customs debts on importation (Aurubis Balgaria) CJ rules on the question whether binding tariff information may be invoked by a trader other than the holder with respect to the same goods (Sony Supply Chain Solutions (Europe)) Commission requests Cyprus to modify discriminatory excise duty rules for imported second-hand motorcycles Commissioner Šemeta encourages customs cooperation at the eastern border of the EU

3 E U Ta x A l e r t Edition 92 May Top News CJ considers German rules on deductibility of expenses for nonresident individuals in breach of EU law (Schröder) On 31 March 2011, the Court of Justice (CJ) gave its judgment in the Schröder case (C-450/09) shortly after Advocate General Bot had issued his Opinion of 9 December The case relates to the right of nonresidents to deduct expenses in Germany. Mr Schröder, the Interested Party, was a Belgian resident with German nationality. He received employment income in Belgium. He received from his parents, as an advance on his inheritance, various immovable properties located in Germany. In return, the Interested Party paid a monthly annuity of EUR 1,000 to his parents. The parents retained the right of usufruct of the immovable properties. The Interested Party rented out the properties and received rental income in that respect. Based on its domestic legislation, Germany subjected this income to non-resident taxation. Under German law, the Interested Party was not allowed to deduct the monthly annuity related to the transfer of the immovable properties. If the Interested Party had been a resident of Germany, he would have been in the position to deduct the EUR 1,000. Following the Opinion of the Advocate General, the CJ decided that the legislation at hand should be examined in the light of the free movement of capital, as the investment in real estate forms a capital movement according to the nomenclature to Directive 88/361/EEG, which has an indicative value for the scope of Article 63 of the Treaty on the Functioning of the European Union ( TFEU ) (formerly Article 56 EC). The general prohibition of discrimination of Article 18 TFEU (formerly Article 12 EC) only comes into play when no specific anti-discrimination provision applies. As the free movement of capital applies in the case at hand, there is no room for separate examination in the light of the general anti-discrimination provision of Article 18 TFEU. In respect of the question of whether the domestic provisions at hand constitute a forbidden restriction on the free movement of capital, the Advocate General had noted in his Opinion that if the monthly payment of the EUR 1,000 annuity in return for the transfer of the ownership of the real estate were to be considered to be a personal deduction related to the family situation of the Interested Party, then based on, amongst others, the CJ s decision in Schumacker (C-279/93), this payment would only be deductible if the Interested Party earned 90% or more of his income in Germany, which was not the case. If, however, the monthly payment were to be considered a cost directly related to the receipt of rental income, the payment would be fully deductible based on, amongst others, the CJ s judgment in Gerritse (C-234/01), as comparability between residents and non-residents would be present. The CJ followed the same line of reasoning, and concluded that the payment should be deductible as it relates to the transfer of the ownership of the real estate and consequently, the receipt of rental income. The payment of the annuity was a conditione sine qua non for receiving the ownership of the property and thus, the rental income. The CJ concluded that non-residents and residents are in the same position as regards costs related to the receipt of rental income. As only residents are allowed to deduct these costs, a restriction of the free movement of capital is present. Germany had invoked no justification for the restriction and thus, the legislation at hand did indeed constitute a forbidden restriction and, consequently, was in breach of Article 63 TFEU. Finnish court refers preliminary question to the CJ regarding the treatment of losses in a cross-border merger (Oy A) On 9 March 2011, the Supreme Administrative Court of Finland referred a question to the CJ for a preliminary ruling in the Oy A case (C-123/11). This case concerns the issue of whether or not the freedom of establishment requires the Member State of the parent company (Finland) to allow the offset of losses of a wholly owned subsidiary resident in another Member State (Sweden)

4 E U Ta x A l e r t Edition 92 May against the profits of the parent company upon the merger of the subsidiary into the parent company. In particular, the national court asked: Do Article 49 TFEU and Article 54 TFEU require that the acquiring company is entitled to deduct in its taxation losses incurred in previous years by a company merging with it, which has resided in another Member State where it has incurred the losses in connection with business activities, when the acquiring company will not have a fixed place of business in the resident state of the acquired company and when, under national legislation, the acquiring company is entitled to deduct the losses of an acquired company, if the acquired company was Finnish or if the losses had been incurred in a fixed place of business located in this state? If the answer to the first question is affirmative, do Article 49 TFEU and Article 54 TFEU have a bearing on whether the loss to be deducted is calculated in accordance with the tax legislation of the acquiring company s state of residence, or should the losses consolidated in the acquired company s state of residence be considered as the deductible losses? Commission proposes overhaul of energy taxation in the EU On 13 April 2011, the Commission presented a proposal to overhaul the rules on the taxation of energy products in the EU. The Proposal (COM/2011/169) was published together with a Commission Communication (COM/2011/168), an impact assessment (SEC/2011/410) and other related documents. The taxation of energy products is already harmonized at EU level by Directive 2003/96/EC (the Energy Taxation Directive ). It sets forth minimum rates for the taxation of energy products used as motor fuels and heating fuels as well as electricity. However, the Directive has become outdated, as it provides for taxation based on volumes of energy products consumed. This system cannot address the EU s energy and climate change targets. The current rules are also inconsistent, as the most polluting energy sources are the least taxed whereas biofuels are amongst the most heavily taxed energy sources. The new rules aim to restructure the way energy products are taxed, in order to remove current imbalances and take into account both their CO2 emissions and energy content. Existing energy taxes would be split into two components: One would be based on CO2 emissions of the energy product and would be fixed at EUR 20 per tone of CO2. The other would be based on energy content, i.e. on the actual energy that a product generates measured in Gigajoules (GJ). The minimum tax rate would be fixed at EUR 9.6/GJ for motor fuels, and EUR 0.15/GJ for heating fuels. This will apply to all fuels used for transport and heating. These, taken together, would determine the overall rate at which a product is taxed. As regards the reduction of greenhouse gas emissions, the revised Energy Taxation Directive aims to complement the existing EU Emission Trading System ( ETS ) by applying a CO2 tax to sectors that are outside its scope, i.e. transport, households, agriculture and small industries, which account for half of the EU s CO2 emissions. An option is available for Member States to completely exempt energy consumed by households for their heating, no matter what energy product is used. With this approach, the Commission wants to promote energy efficiency and consumption of more environmentally friendly products and to avoid distortions of competition in the Single Market.

5 E U Ta x A l e r t Edition 92 May The proposal is also intended to help Member States to redesign their overall tax structures in a way that contributes to growth and employment by shifting taxation from labour to consumption. The proposal will now be discussed by the European Parliament and the Council. The revised Directive would enter into force as of However, long transitional periods are provided for the full alignment of taxation of the energy content, until 2023, in order to leave time for industry to adapt to the new taxation structure. State Aid/WTO Advocate General proposes to uphold the General Court s Gibraltar decision and not to adapt the State aid regime to accommodate harmful tax competition procedures (Commission and Spain v Gibraltar and United Kingdom) On 7 April 2011, Advocate General Jääskinen delivered his Opinion in the matter of Commission and Spain v Gibraltar and United Kingdom (C-106/09 P and C-107/09 P), concerning Gibraltar s proposed corporate tax reform and its position under EU State aid law. The Advocate General took a firm position on the Commission s proposal of what he refers to as a concept of an inherently discriminatory tax system within State aid review. One of the main issues in this case was Gibraltar s proposal to abandon its corporate tax and to introduce a payroll tax as well as a business property occupation tax, the two taken together capped at 15% of corporate profits. favours companies which in a particular year make rather low profits in relation to the number of their employees or the size of their business property; (iii) the payroll tax and property tax inherently favour companies with no real physical presence in Gibraltar. The Advocate General agreed that the case law of the CJ on regional selectivity applied, and upheld the finding of the General Court ( GC ) that Gibraltar has a sufficient level of autonomy allowing its own tax system to be the appropriate framework of reference for a State aid analysis, despite Spain s complaint that this would give Gibraltar a status like that of a Member State (which neither the GC nor the Commission held). The Advocate General continued to explain the concept of harmful tax competition and recognized the EU s efforts to control and contain such tax competition, as it is liable to distort competition. He pointed out that the Code of Conduct on Harmful Tax Competition ( Code of Conduct ) is merely a political commitment and does not affect the competence of the Union resulting from the TFEU. In his view, the intention of the Code of Conduct is to combat tax measures designed to favour foreign undertakings or capital ( reverse discrimination unfavourable to the residents of the Member States ) whereas State aid is designed to protect against measures favouring certain undertakings or goods at the expense of others and against unjustified discrimination of foreign nationals or non-residents or protectionism. He therefore concluded that harmful tax competition clearly does not fall within the mechanism for controlling State aid although some harmful measures may still fall within its scope. He then stated that combating harmful tax competition does not justify distortion of the EU s State aid framework. The Commission argued that material selectivity could be present in this system of taxation in the following respects: (i) the condition that a profit must be made in order to pay the payroll or property tax favours companies which make no profit; (ii) the cap limiting tax liability to 15% of profits Advocate General Jääskinen pointed out that the Code of Conduct is the only instrument available against harmful tax measures that do not fulfil the selectivity criterion. He argued that the distinction between tax measures constituting State aid and the general tax system should

6 E U Ta x A l e r t Edition 92 May be preserved. Being aware that the OECD (once) identified Gibraltar as a tax haven, the Advocate General argued that the CJ was now called upon to decide whether it is prepared to depart from the traditional analysis of the concept of State aid in an indirect form in order to stigmatise Gibraltar s tax regime. He pointed out that the Commission had failed to determine the framework of reference for State aid purposes as it is Gibraltar s proposed general regime aimed at almost zero taxation but for entities which use local factors of production that was claimed to cause harmful tax competition. Even though the tax system may result in offshore companies not being taxed, other Gibraltar-based companies, such as holding companies, that require neither staff nor premises would be in a similar situation. The Advocate General therefore proposed to uphold the GC s judgement, which had set aside the Commission s finding of State aid, for failure to define the normal tax regime and the derogations to it correctly. As for a complaint by the Spanish government that the GC had failed to decide on the case within a reasonable time limit (it took 54 months), the Advocate General pointed out that neither Article 6(1) of the European Convention for Human Rights ( ECHR ) nor the EU s Charter of Fundamental Rights allow the Member States themselves to benefit from the rights guaranteed by them, notwithstanding their right to a fair legal process and effective judicial protection as general principles of EU law. For this reason, he did look into the reasonable time issue, but concluded that it had not been violated given the complexity and importance of the case at hand. Direct Taxation CJ considers Portuguese 2005 tax amnesty legislation in breach of the free movement of capital (Commission v Portugal) On 7 April 2011, the CJ gave its judgment in the Commission v Portugal case (C-20/09). This case concerns the Portuguese 2005 tax amnesty legislation, which has now been declared incompatible with the free movement of capital. In 2005, the Portuguese Parliament approved a tax amnesty for undeclared funds held abroad under the Regime Especial de Regularizacao Tributaria ( RERT ). The aim of this regime was to tackle tax evasion and tax fraud by creating an incentive, limited in time (until 31 December 2005), for Portuguese resident individuals to voluntarily legalize their tax situation regarding the failure to declare taxable income held abroad. For that purpose, it provided the possibility for said resident individuals to file a confidential statement with the disclosure and subsequent regularization of the undeclared funds held abroad. The consequence of the application of the regime was that the individual availing himself of the tax amnesty had to pay an amount corresponding to 5% of the value of the assets regularized under the RERT. However, a reduced rate of 2.5% applied to regularized Portuguese government bonds, and to the value of assets reinvested in such bonds. The Commission considered that the difference in the applicable rates (2.5% against 5%) constituted a breach of the free movement of capital provided by Article 63 TFEU, as well as Article 40 of the Agreement on the European Economic Area ( EEA ) as it dissuaded the regularization of assets other than Portuguese government bonds and discouraged investments in government bonds issued by other Member States.

7 E U Ta x A l e r t Edition 92 May The CJ upheld the Commission s argument and found that the measure constituted a restriction on the free movement of capital. The CJ went on to analyse the justifications invoked by Portugal. Portugal argued that the restriction would be justified by the need to fight tax evasion and tax fraud. In that regard, the CJ observed that, in general, such an objective could justify a restriction on the free movement of capital. However, it considered that in the case at hand, the Portuguese government had not been able to demonstrate that the difference between the tax rate of domestic bonds and that applicable to bonds issued by other Member States was necessary to attain the objective of combating tax evasion. In fact, as the Court observed, all the remaining RERT provisions were applicable irrespective of the place where the capital was invested. The Portuguese government also put forward that the different rates were justified as they provided for a higher compensatory indemnity for the legalization of the investments concerning public bonds issued by other Member States. In reply to this, the CJ pointed out that such an objective was of a purely economic character aimed at the compensation of the decrease of tax revenue of Portugal. Following its settled case law, the CJ reminded that such an objective could not justify a restriction on the free movement of capital. Finally, the CJ dealt with the argument according to which, Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings income in the form of interest payments (the Savings Tax Directive ) allowed a difference between bonds issued by public bodies and those issued by private entities. The CJ considered that even if the Directive allowed such difference, that could not justify a different treatment between bonds issued by the Portuguese government and similar (government) bonds issued by other Member States. Portuguese court refers preliminary question to the CJ regarding the compatibility of domestic legislation on the elimination of economic double taxation with the free movement of capital (Amorim Energia) On 28 January 2011, the Portuguese Administrative Supreme Court referred a question for a preliminary ruling to the CJ in the Amorim Energia case (C-38/11). This case concerns the compatibility of the Portuguese corporate income tax legislation regarding elimination of economic double taxation with the free movement of capital. In particular, at issue were the conditions under which corporate shareholders resident in other Member States can recover the tax withheld at source at the moment of the distribution of dividends. According to the Portuguese legislation in force at the time of the facts of the case, the elimination of economic double taxation for non-resident shareholders was dependent, amongst other conditions, on a shareholding of at least 20% kept for an uninterrupted period of at least two years whereas in the case of Portuguese resident shareholders, the participation threshold and the holding period were substantially lower. Considering such different requirements, the Portuguese Administrative Supreme Court referred the following question to the CJ: Do Articles 63 TFEU and 65 TFEU (formerly Articles 56 EC and 58 EC) preclude legislation of a Member State, such as Articles 46(1), 96(2) and (3), 14(3) and 89 of the Corporation Tax Code, which, in the context of elimination of economic double taxation of distributed profits, while complying with Council Directive 90/435/EEC 1 of 23 July 1990, does not enable shareholder companies resident in another Member State to secure repayment of the tax deducted at source in the same circumstances as shareholder companies resident in Portugal, requiring for that purpose a longer minimum period of share ownership and a minimum but significant shareholding, delaying or rendering impracticable the elimination of economic double taxation?

8 E U Ta x A l e r t Edition 92 May Commission refers Belgium to the CJ over its discriminatory taxation of foreign investment companies and certain collective investment funds On 6 April 2011, the Commission announced that it had referred Belgium to the CJ because of two discriminatory tax provisions concerning the taxation of foreign investment companies and certain Icelandic and Norwegian collective investment funds. Under the provisions at issue in the first case, domestic investment companies do not, in practice, pay tax on their Belgian-sourced interest and dividend income, as they obtain a refund for any Belgian withholding taxes paid thereon. On the other hand, foreign investment companies pay a withholding tax of 15% or 25% on their Belgian-sourced interest and dividend income with no possibility of claiming a refund. Hence, foreign investment companies pay a tax on Belgian-sourced income that Belgian investment companies do not. The Commission considers these provisions in breach of the free movement of capital and the freedom of establishment (Articles 49, 54 and 63 TFEU and Articles 31, 34 and 40 EEA). On 3 June 2010, the Commission sent a reasoned opinion to Belgium regarding this matter (EU Tax Alert edition no. 80, June 2010), with which Belgium had failed to comply. The other case concerns Belgian tax rules according to which, capital gains on the sale of shares of collective investment funds, which are established in the EU but do not qualify for the European passport according to Directive 85/611/EEC, are not taxable. Such rules do not apply to capital gains on the sale of shares of equivalent collective investment funds established in Iceland and Norway. Those capital gains are taxable regardless of the funds status with respect to the European passport. The Commission argues that these provisions are in breach of the free movement of capital and the freedom to provide services as set out in Articles 40 and 36 EEA. On 30 September 2010, a reasoned opinion was sent to Belgium (EU Tax Alert edition no. 85, November 2010), however, Belgium had not responded to it satisfactorily. Investment funds established in Liechtenstein (also part of the EEA) are excluded from the scope of this infringement procedure since Liechtenstein does not exchange information on income from such investment funds with the Belgian tax authorities. Commission requests Belgium to amend certain discriminatory rules of its inheritance tax On 6 April 2011, the Commission formally requested Belgium to amend two aspects of its inheritance tax legislation, which, according to the Commission, discriminate against non-resident heirs or recipients of gifts and foreign organizations. The request takes the form of a reasoned opinion, the second step in the infringement procedure under Article 258 TFEU. In the absence of a satisfactory response within two months, the Commission may refer Belgium to the CJ. Under Belgian gift tax and succession duties legislation, foreign heirs or recipients of gifts of movable assets located in Belgium have to provide a guarantee. If they do not provide this guarantee, they can have the totality of the inheritance or donation assets blocked by the Belgian authorities. Belgian heirs or recipients of comparable gifts do not have to provide such guarantee. In addition, inheritance legislation as applicable in Wallonia, grants certain Belgian organizations (such as public bodies and non-profit organizations), an exemption from or a reduction on succession duties and gift tax whereas their foreign equivalents have to pay the normal tax.

9 E U Ta x A l e r t Edition 92 May The Commission is of the opinion that both provisions could discourage citizens from moving to another EU country and from assigning an inheritance or a gift to an equivalent organization located in another Member State. Therefore, they constitute restrictions on the free movement of capital (Article 63 TFEU and Article 40 EEA) which cannot be justified. Commission requests Belgium to amend its rules regarding tax exemptions for certain types of real estate located in Belgium On 6 April 2011, the Commission formally requested Belgium to amend its tax legislation which provides for a tax exemption of certain types of real estate located in Belgium. The request takes the form of a reasoned opinion. Under Belgian tax law, revenues from real estate used by organizations that are active in the health or educational sectors, or that are leased under special types of contracts, are exempt from taxation. However, Belgian residents are taxed on the revenues they obtain from comparable real estate located abroad. The Commission considers that these rules are discriminatory and are liable to discourage Belgian residents from investing in other Member States, thus, they constitute an unjustified restriction on the free movement of capital (Article 63 TFEU and Article 40 EEA). Commission requests Belgium to amend its rules on the taxation of certain capital gains On 6 April 2011, the Commission formally requested Belgium to amend its rules concerning the taxation of certain capital gains, as they discriminate against assets used outside Belgium. The request takes the form of a reasoned opinion. Under Belgian Income Tax Law, capital gains on fixed assets (such as buildings, equipment or machinery) are not taxed immediately if the total amount received is reinvested in assets used in Belgium for the professional activity of the taxpayer. In that case, the taxation of the capital gains is deferred, i.e. the taxation of the capital gain is spread over the period during which the assets in which the reinvestment is made, are depreciated. However, such a rule does not apply if the reinvestment is made in assets used outside Belgium for the professional activity of the taxpayer. In that scenario, capital gains are taxed immediately. As a result, taxpayers cannot benefit from deferred taxation on capital gains if they invest in assets in other EU or EEA countries. The Commission considers these rules incompatible with the freedom of establishment, freedom to provide services and free movement of capital (Articles 49, 56 and 63 TFEU and Articles 31, 36 and 40 EEA). Commission refers the Netherlands to the CJ over discrimination against foreign charities On 6 April 2011, the Commission decided, further to its reasoned opinion of 18 March 2010 (EU Tax Alert edition no. 78, April 2010), to refer the Netherlands to the CJ for its tax treatment of gifts to charities. Netherlands tax relief for gifts to charities applies only to donations made to charities registered in the Netherlands. Thus, tax relief on donations to foreign charities is granted only when the foreign charity has been registered in the Netherlands. This renders a donation to foreign charities, not registered in the Netherlands, less attractive for Netherlands taxpayers. The Commission considers that the requirement for foreign charities to register is disproportionate and incompatible with the EU rules on the free movement of capital guaranteed by Article 63 TFEU and Article 40 EEA.

10 E U Ta x A l e r t Edition 92 May In this respect, the CJ s earlier ruling in the Persche case (C-318/07) was recalled, according to which nothing prevents the tax authorities of the Member State of taxation from requiring a taxpayer, wishing to obtain the deduction for tax purposes for gifts made for the benefit of bodies established in another Member State, to provide the relevant evidence. Commission closes infringement procedures against Portugal regarding tax rules on outbound dividends and taxation of non-residents On 14 March 2011, the Commission announced that it had closed two infringement procedures which were pending against Portugal regarding its tax rules on outbound dividend payments and taxation of non-residents. The first procedure concerned the higher taxation of dividend payments made to foreign companies (outbound dividends) when compared to dividend payments to domestic companies (EU Tax Alert edition no. 80, June 2010). The other procedure was initiated due to the fact that non-resident taxpayers were, in certain cases, taxed on a gross basis (by means of withholding tax) whereas resident tax payers could deduct certain costs and therefore, were taxed on a net basis (EU Tax Alert edition no. 78, April 2010). The Commission stated that the reason for closing the two procedures was that the Portuguese legislation had been changed in the meantime. Commission closes infringement procedure against Greece regarding outbound dividends paid to Swiss parent companies On 14 March 2011, the Commission announced that an infringement procedure against Greece concerning its rules on outbound dividends paid to Swiss parent companies (EU Tax Alert edition no. 85, November 2010) had been closed. The procedure was closed after Greece had amended its legislation. EU initiates dialogue with US regarding the Foreign Account Tax Compliance Act On 6 April 2011, the Hungarian Presidency of the Council of the European Union and the Commission invited the US authorities to engage in a dialogue on how best to achieve the objectives of the US Foreign Account Tax Compliance Act ( FATCA ). FATCA is a piece of US legislation intended to ensure that US tax authorities obtain information on investments by US residents in foreign financial institutions. FATCA could impose a significant compliance burden on EU financial institutions (including banks, investment funds and insurance companies). Since its adoption on 18 March 2010, EU business and financial associations have voiced their concerns about the administrative burdens and potential penalties that the FATCA could entail for them. The FATCA pursues goals similar to those of the Savings Tax Directive within the EU, which imposes obligations on EU financial intermediaries to report information to the tax authorities of their Member States on interest income paid to individual investors, and provides for the exchange of that information between the Member States. A revision of that Directive aimed at expanding its scope has already reached an advanced stage. EU tax authorities also exchange information with each other under the Mutual Assistance Directive (Council Directive 77/799/EEC, and the new Council Directive 2011/16/EU which will replace the former), and with third countries, including the US, under information exchange clauses in bilateral double taxation treaties. In light of the information exchange tools that already exist between tax administrations, the Hungarian Presidency and the Commission invited the US authorities to consider exploiting possible synergies to achieve their common goals in a cost-effective and business-friendly way.

11 E U Ta x A l e r t Edition 92 May VAT Advocate General indicates that the sale of building land that previously qualified as agricultural land is subject to VAT On 12 April 2011, Advocate General Mazák gave his Opinion in the joined cases Słaby and Kúc (C-180/10 and C-181/10). Słaby acquired agricultural land in 1996 with the intention of using it for agricultural activities. In 1997, the urban management plan was changed to the effect that the land qualified as building land. Subsequently, Słaby reclassified the land as private property, split the land into 64 parcels and offered them for sale. The Kúc case concerned the sale of parcels of land that were part of the agricultural activities of a flat-rate farmer within the meaning of Article 295, paragraphs 1 and 3 of the EU VAT Directive. The land was acquired as agricultural land, but similar to the Słaby case, the designation of the land was changed to building land on the basis of the urban management plan. In both cases, the Polish tax authorities claimed that VAT was due on the sale of the land. The Advocate General indicated that the sale of the land qualifies as the exploitation of tangible property but that the question remains whether the parcels have been sold in order to obtain income therefrom on a continuing basis. According to the Advocate General, this is the case because of the fact that the land had been split up into multiple parcels in order to repeatedly sell parcels. The reclassification of the land as private property in the Słaby case does not alter this conclusion. With respect to the Kúc case, the Advocate General indicates that the sale of the parcels is VAT taxable under the normal rules, regardless of the fact that Kúc performs agricultural activities as a flatrate farmer within the meaning of Article 295, paragraphs 1 and 3 of the EU VAT Directive. Netherlands Supreme Court refers preliminary question to the CJ regarding the scope of the exemption for transactions in shares On 22 April 2011, the Netherlands Supreme Court referred a question to the CJ for a preliminary ruling (name and number not yet known) regarding the scope of the exemption for transactions in shares. The case concerns the qualification of services that have been rendered by a real estate agent with respect to the sale of shares in a company, the assets of which consist, amongst others, of real estate. The Court asks whether or not these services, based on the case law of the CJ, have to be regarded as VAT exempt services with respect to shares. Commission requests Germany to extend VAT exemptions for sharing costs of services On 6 April 2011, the Commission formally requested Germany to change its VAT legislation such to extend the scope of VAT exemption for services supplied to their members by cost sharing groups with no right to deduct VAT. The request takes the form of a reasoned opinion. Under German VAT legislation, services supplied by cost sharing groups are exempt from VAT only when such services take place in the medical and health care sector. The EU VAT Directive exempts from VAT services that cost sharing groups can supply to their members under a series of conditions: the members activities should be exempt from VAT, the shared services should be directly necessary to the members activities, the group should claim from exact reimbursement of each member s share of the joint expenses and finally, such exemption should not cause distortions of competition. However, those rules include no sectoral limitation of the exemption. The Commission considers that EU VAT law requires that the exemption be available in all sectors and therefore, the German legislation should be amended to that effect in order to comply therewith.

12 E U Ta x A l e r t Edition 92 May Commission publishes study on VAT in the public sector and exemptions in public interest On 12 April 2011, the Commission published a study that deals with the competition distortions which arise from the fact that public and private activities are treated differently for VAT purposes. The extensive report identifies distortions on the input side and the output side. The input side distortion relates to the incentive that public entities have to refrain from outsourcing certain services due to the fact that the input VAT on those services is not deductible. The output side distortion relates to the competitive advantage that public bodies may have when no VAT has to be charged on similar services. The study indicates that in some Member States, public entities may recover input VAT when outsourcing support services. Although this resolves the input side distortion, it does not remedy the output VAT distortion. Therefore, the study proposes to give public entities an option to tax their services. In that case, VAT would be levied on the output of public entities and those entities would be allowed a full deduction of input VAT. The study acknowledges, however, that such an option to tax could bring about distortions of its own. Customs Duties, Excises and other Indirect Taxes Operations of preferential trade to become easier between the European Union, the partners of the Southern Mediterranean and the Western Balkans On 15 April 2011, the Council adopted a decision authorising the signature of the regional Convention on pan-euro-mediterranean preferential rules of origin by the Commission on behalf of the European Union. The Convention will replace the current pan-euro- Mediterranean system of rules of origin based on individual protocols applicable between two partner countries, with a single legal instrument in the form of a regional convention on preferential rules of origin. The Convention is intended to overcome the difficulties in the management of the current network of some 60 bilateral protocols on rules of origin among the countries or territories of the pan-euro- Mediterranean zone. The contracting parties to the Convention are the European Union, the Faroe Islands, the EFTA States, Turkey, the Southern Mediterranean partners participating in the Barcelona Process, and the Western Balkans. On 24/25 March 2011, and in line with the 8th March Communication entitled a Partnership for Democracy and Shared Prosperity with the Southern Mediterranean, the European Council called for work to be rapidly taken forward to develop a new partnership with the region, founded on deeper economic integration, broader market access and closer political cooperation. It called, in particular, for rapid progress to be made on the proposals on pan-euro-mediterranean rules of origin. CJ rules on the CN classification of decoders with a hard disk drive (British Sky Broadcasting Group and Pace) On 14 April 2011, the CJ gave its judgment in the British Sky Broadcasting Group and Pace cases (C-288/09 and C-289/09). The cases concern the classification of decoders with a hard disk drive, such as the Sky+ box. The CJ ruled that these decoders with a hard disk drive must be classified, for customs purposes, as set-top boxes with a communication function and not as recording apparatus. As a result, they are exempt from customs duties instead of being subject to a rate of 13.9%. British Sky Broadcasting ( Sky ), the main supplier of digital satellite television services in the UK, imports a satellite television receiver known as the Sky+ box, manufactured for Sky by Pace. That box has a communication function, contains a hard disk drive and allows the end user to record programmes broadcast by Sky.

13 E U Ta x A l e r t Edition 92 May Sky and Pace disputed the decisions by the Commissioners for Her Majesty s Revenue & Customs to classify the Sky+ box, in accordance with the Explanatory Notes to the combined nomenclature ( CN ), as a recording apparatus. They claim that the Sky+ box should be classified as a settop box with a communication function. Recording devices are subject to customs duty at a rate of 13.9%, whilst settop boxes are exempt from duties. The First-tier Tribunal (Tax Chamber) referred questions to the CJ concerning the appropriate classification of the Sky+ box. Consequently, the Explanatory Notes to the combined nomenclature, on which the Commissioners based their decision, must be disregarded on that point. CJ rules on Romanian pollution tax charged on first registration of motor vehicles (Tatu) On 7 April 2011, the CJ gave its judgment in the Tatu case (C-402/09). This case concerns the pollution tax charged on first registration of motor vehicles and the neutrality of tax between imported second-hand motor vehicles and similar vehicles already on the domestic market. The CJ pointed out that, in the case of electrical devices, machines that have several functions and could be classified in different categories are to be classified according to the principal function of the device. Decoders such as the Sky+ box are sold to television service providers such as Sky, who make them available to their customers so that they can access their programmes. Therefore, consumers subscribe to service providers such as Sky principally to be able to access the television programmes offered and, in order to do so, they need a box such as the Sky+ box. The television programme recording function, which is also available on that model, is merely an additional service. Consumers who choose that product are seeking, primarily, not a recording function, but rather a function of decoding television signals, although their choice may be influenced by the fact it has a recording function or by the number of hours of programming that can be recorded. That conclusion is borne out by the fact that the Sky+ box cannot record video content from any other external source (from television receivers, cameras or video recorders), it cannot play video content from external media such as DVDs or videotapes and is not capable of recording video content on to external media. It follows that the Sky+ box is principally intended to be used to receive television signals and that function is inherent in that device. It thus constitutes its principal function, and the recording function is only secondary. In July 2008, Mr Tatu, a Romanian national residing in his Member State of origin, purchased a second-hand motor vehicle in Germany. The vehicle was a category M1 vehicle with a cylinder capacity of 2,155 cm3, complying as regards emissions with the Euro 2 emissions standard. It was manufactured in 1997 and registered in Germany in that year. Mr. Tatu wished to register the vehicle in Romania and for that purpose, he had to pay pollution tax. By application filed with the Sibiu Regional Court, Mr Tatu sought the repayment of that amount. He submitted that the tax in question was incompatible with EU law, in particular, in that it was charged on second-hand vehicles imported into Romania from other Member States and registered for the first time in Romania, whereas with similar vehicles already registered in Romania, the tax was not charged on their resale as second-hand vehicles. Imported secondhand vehicles, therefore, were taxed more heavily than similar vehicles already registered in Romania, which encouraged Romanian consumers to purchase the latter. The extent of the discrimination was illustrated by the circumstances of the dispute in the main proceedings, since the second-hand motor vehicle in question had been bought in Germany for EUR 6,600 and subjected on registration in Romania to tax of RON 7,595, the equivalent of over EUR 2,200. The amount of tax paid thus considerably exceeded the residual amount of tax included in the value of a similar vehicle already registered in Romania.

14 E U Ta x A l e r t Edition 92 May Mr Tatu also submitted that the objective of the law prescribing the pollution tax (OUG No. 50/2008), namely protection of the environment, could have been achieved by more appropriate measures, such as the introduction of a pollution tax on all motor vehicles in circulation, not merely on those registered from 1 July of the Customs Code, a letter to the Bulgarian customs authority informing it that the supplier had issued the final invoice for the imported goods and asking it to act in accordance with its statutory powers if it considered that a retroactive amendment of the customs value of the goods was necessary. Having regard to these claims, the Sibiu Regional Court decided to stay the proceedings and referred the following question to the CJ for a preliminary ruling: Are the provisions of OUG No 50/2008, as subsequently amended, contrary to the provisions of Article 90 EC, and do they in fact constitute a measure which is manifestly discriminatory? The CJ ruled that Article 110 TFEU (formerly Article 90 EC) must be interpreted as precluding a Member State from introducing a pollution tax levied on motor vehicles on their first registration in that Member State if that tax is arranged in such a way that it discourages the placing in circulation in that Member State of second-hand vehicles purchased in other Member States without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market. CJ rules on the levy of compensatory interest related to customs debts on importation (Aurubis Balgaria) On 31 March 2011, the CJ gave its judgment in the Aurubis Balgaria case (C-546/09). This case concerns the levy of interest on customs debts on importation of goods. During the period from 6 to 30 November 2007, Aurubis imported copper concentrate originating from Macedonia. Those goods were released for free circulation. The customs declarations were made on the basis of a provisional price, shown on the seller s invoice and fixed in accordance with the method laid down in the commercial contract between the seller and Aurubis. The final price for the goods was fixed by the final invoice dated 18 February On 20 June 2008, Aurubis submitted, on its own initiative and in accordance with Article 78(1) On 15 July 2008, the customs authority adopted a decision, finding that an additional debt to the State had been incurred for VAT in the amount of BGN 113,822.82, payable together with statutory interest as from the date on which the customs debt had been incurred ( the decision of 2008 ). That decision, gave Aurubis seven days in which to pay the tax. Aurubis paid the VAT debt specified in the decision of 2008 by a money order of 23 July That debt was entered in the accounts on 24 July Challenging the obligation imposed by the decision of 2008 to pay interest on arrears, Aurubis referred the matter to the Sofia Administrative Court, which upheld the decision of Aurubis brought an appeal against that decision before the Supreme Administrative Court. Relying on Articles 201 and 214 of the Customs Code, the customs authority contended that interest on arrears in respect of customs and VAT debts paid subsequently is owed from the date on which the goods are released for free circulation. For its part, Aurubis argued that interest on arrears is owed from a later date and, specifically, from the date subsequent to the entry in the accounts of the customs debt and its communication to the debtor on which the period laid down for payment of the customs debt entered late in the accounts expires. In those circumstances, the Supreme Administrative Court decided to stay the proceedings and to refer questions to the CJ for a preliminary ruling. First, the national court asked whether Article 232(1)(b) of the Customs Code was to be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid. Second, the court asked whether, in the absence of

15 E U Ta x A l e r t Edition 92 May corresponding provisions in the Implementing Regulation, Article 214(3) of the Customs Code is to be interpreted as meaning that national authorities may not, on the basis of that provision, charge the person owing the customs debt compensatory interest in respect of the period between the date of the original customs declaration and the date of the subsequent entry in the accounts. By the third question, the national court inquired whether EU law precludes national authorities from applying, for a customs offence, a penalty for which no express provision is made under the national legislation. The CJ ruled as follows: 1. Article 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid. 2. In the absence of corresponding provisions in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, Article 214(3) of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that national authorities may not, on the basis of that provision, charge the person owing the customs debt compensatory interest in respect of the period between the date of the original customs declaration and the date of the subsequent entry in the accounts. 3. The general principles of EU law and, in particular, the principle of the legality of criminal offences and penalties preclude national authorities from applying, to a customs offence, a penalty for which no express provision is made under the national legislation. CJ rules on the question whether binding tariff information may be invoked by a trader other than the holder with respect to the same goods (Sony Supply Chain Solutions (Europe)) On 7 April 2011, the CJ gave its judgment in the Sony Supply Chain Solutions (Europe) case (C-153/10). This case concerns the question whether binding tariff information can be invoked by a trader other than the holder with respect to the same goods. Sony Computer Entertainment Europe Ltd. ( SCEE ), a company established in the UK, is responsible for the marketing, selling and distribution of games machines, peripherals and software throughout the European Union. Those games machines include the game console Playstation 2 Computer Entertainment System ( PS2 ). SCEE and Sony Logistics Europe BV, now Sony Supply Chain Solutions (Europe) BV ( SLE ), are part of the same group of companies, in which SLE provides logistical services to other companies in the group. On 1 April 1997, SCEE and SLE concluded an agreement which provides that SLE is to assist SCEE with the import and warehousing of European stocks of games machines, including the PS2. SLE is responsible for making customs declarations for those game machines. From November 2000 until May 2001, SLE imported PS2 games machines into the Netherlands and manufactured for SCEE, but in its own name and on its own behalf, customs declarations with respect to those goods. It stated that PS2s were to be classified under tariff subheading of the Combined Nomenclature ( CN ) in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Commission Regulation (EC) No 2204/1999 of 12 October 1999, as regards the imports during 2000 and Commission Regulation (EC) No 2263/2000 of 13 October 2000 as regards those in 2001.

16 E U Ta x A l e r t Edition 92 May Tariff subheading entailed payment of customs duties of 2.2% in 2000 and 1.7% in The Netherlands customs authorities requested payment from SLE of the corresponding customs duties. SLE therefore brought an appeal against that request, claiming that PS2s should in fact have been classified under tariff subheading of the CN. Goods classified under that subheading are exempt from customs duties. SLE based its arguments on proceedings between SCEE and the UK customs authorities. On 19 October 2000, the latter issued SCEE with a binding tariff information ( BTI ) for the PS2, classifying it under tariff subheading of the CN. SCEE then brought an action before the English courts challenging that classification. Following those proceedings, on 12 June 2001, the UK customs authorities issued SCEE with an amended BTI and classified the PS2 in tariff subheading of the CN with effect from 19 October Before the Netherlands customs authorities, SLE relied on the amended BTI issued to SCEE. By decision of 11 December 2007, the Amsterdam Court of Appeals held that SLE could rely, before the Netherlands customs authorities, on the amended BTI issued to SCEE by the UK customs authorities even with respect to the customs declarations submitted between 19 October 2000 and 12 June Accordingly, the Amsterdam Court of Appeals ruled that PS2s were to be classified under tariff subheading of the CN. The State Secretary of Finance brought an appeal in cassation against the decision of 11 December 2007 before the Supreme Court of the Netherlands. The Supreme Court has doubts regarding the value of the amended BTI between 19 October 2000 and 12 June 2001 as to whether SLE is able to rely on it and with respect to the legitimate expectations that the importer could rely on given that the Netherlands customs authorities were required, in accordance with their own rules, to take account of a BTI issued to a third party for the same goods. In those circumstances, the Supreme Court of the Netherlands decided to stay proceedings and to refer the following questions to the CJ for a preliminary ruling: 1. Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the Customs Code and Article 11 of the implementing regulation, in conjunction with Article 243 of the Customs Code, be interpreted to mean that a person involved in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff information issued in another Member State for the same goods, which information was still the subject of a legal dispute at that time, but was eventually revised? 2. If the answer to Question 1 is in the affirmative, can the person declaring the goods to customs in his own name and for his own account successfully rely in a case such as this, when making customs declarations for release for free circulation, on binding tariff information whose holder is not that person, but an associated firm on whose instructions that person made the customs declarations? 3. If the answer to Question 2 is in the negative, does Community law preclude a person in a case such as this from successfully relying on a national policy decision in which the national authorities raise the expectation that, in respect of the tariff classification of the goods declared, it can rely on tariff information issued to a third party for the same goods? The CJ ruled as follows: 1. Article 12(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and Articles 10 and 11 of Commission Regulation (EEC) No 2454/93 of 2 July

17 E U Ta x A l e r t Edition 92 May laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 12/97 of 18 December 1996, must be interpreted as meaning that a person who makes customs declarations in his own name and on his own behalf cannot rely on a binding tariff information of which he is not the holder, but which is held by an associated company on whose instructions he made those declarations. 2. Articles 12(2) and (5) and 217(1) of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 11 of Regulation No 2454/93, read in conjunction with Article 243 of Regulation No 2913/92, as amended by Regulation No 12/97, must be interpreted as meaning that, in proceedings relating to the imposition of customs duties, an interested party may challenge that imposition by submitting as evidence a binding tariff information issued in respect of the same goods in another Member State although the binding tariff information cannot produce the legal effects attaching to it. It is, however, for the national court to determine whether the relevant procedural rules of the Member State concerned provide for the possibility of producing such types of evidence. 3. Article 12 of Regulation No 2913/92, as amended by Regulation No 82/97, and Article 10(1) of Regulation No 2454/93, as amended by Regulation No 12/97, must be interpreted as meaning that a national policy which allows national authorities to refer, for the purpose of the tariff classification of declared goods, to a binding tariff information issued to a third party for the same goods, could not give rise, on the part of traders, to a legitimate expectation that they could rely on that policy. Commission requests Cyprus to modify discriminatory excise duty rules for imported second-hand motorcycles On 6 April 2011, the Commission formally requested Cyprus to amend its legislation on depreciation scales for the calculation of excise duties on second-hand motorcycles because the current rules discriminate against imported motorcycles. The Commission considers that the current legislation is in breach of EU rules on tax discrimination against products imported from other Member States. The request takes the form of a reasoned opinion. Under current Cypriot legislation, owners of secondhand motorcycles have to pay an excise duty depending on the depreciation of these vehicles, i.e. their loss in value over a certain period of time. However, the Cypriot legislation only takes into account the criterion of age when calculating the duties and limits it to 10 years. In practice, a motorcycle that is two or three years old would depreciate at almost the same pace as a motorcycle aged four or five years old and depreciation for vehicles aged fifteen or twenty years would remain the same as for vehicles ten years old. Such a system could result in higher taxation for second-hand motorcycles imported into Cyprus than for those already registered in the country and is therefore, in breach of EU rules on prohibition of tax discrimination against products imported from other Member States, as set out in Article 110 TFEU. Commissioner Šemeta encourages customs cooperation at the eastern border of the EU On 14 April 2011, Commissioner Šemeta, in charge of Taxation and Customs Union, Audit and Anti-Fraud opened a High-Level Seminar hosted by the Hungarian Presidency of the EU in Budapest, under the Customs 2013 Programme. The event gathered together the Directors-General and other representatives of customs administrations from the Member States and the European Commission, Candidate countries and the Eastern neighbours of the EU (Armenia, Azerbaijan, Georgia, Moldova, Russia and Ukraine) and Serbia.

18 E U Ta x A l e r t Edition 92 May The aim of the Seminar was to enhance and further develop customs cooperation at the Eastern Border of the EU through consensus on a coherent and comprehensive framework. Three strategic priorities had been defined for the Seminar: (i) ensuring smooth and safe trade lanes, (ii) developing more effective risk management and fight against fraud and (iii) investing in customs modernisation. In this context, Commissioner Šemeta highlighted the specific challenge of tobacco smuggling, encouraging experts to share experiences on how best to curb worrying trends. It is estimated that the EU and Member States lose up to EUR 10 billion in unpaid taxes every year from illicit trade. In addition, it is acknowledged that tobacco smuggling undermines public health initiatives aimed at curbing smoking. Participants also discussed practical ways to improve customs cooperation in the region and envisaged several actions, ranging from the approximation of legislation and procedures, the facilitation and simplification of controls at borders to options for EU financial support for external border projects. Commissioner Šemeta used the opportunity of his visit to exchange views on current and forthcoming initiatives with senior officials of national authorities in charge of tax, customs, anti-fraud and audit, as well as with key Members of the Hungarian Parliament.

19 E U Ta x A l e r t Edition 92 May Loyens & Loeff N.V. is the first firm where attorneys, tax laywers and civil-law notaries collaborate on a large scale to offer integrated professional legal services in the Benelux countries. Loyens & Loeff is an independent provider of corporate legal services. Our close cooperation with prominent international law and tax law firms makes Loyens & Loeff the logical choice for large and medium-size companies operating domestically or internationally. Editorial board For contact, mail: eutaxalert@loyensloeff.com: René van der Paardt (Loyens & Loeff Rotterdam) Thies Sanders (Loyens & Loeff Amsterdam) Dennis Weber (Loyens & Loeff Amsterdam; University of Amsterdam) Although great care has been taken when compiling this newsletter, Loyens & Loeff N.V. does not accept any responsibility whatsoever for any consequences arising from the information in this publication being used without its consent. The information provided in the publication is intended for general informational purposes and can not be considered as advice. Editors Patricia van Zwet Correspondents Peter Adriaansen (Loyens & Loeff Tokyo) Séverine Baranger (Loyens & Loeff Luxembourg) Gerard Blokland (Loyens & Loeff Amsterdam) Alexander Bosman (Loyens & Loeff Rotterdam) Kees Bouwmeester (Loyens & Loeff Amsterdam) Joke Brabants (Loyens & Loeff Brussels) Alexander Fortuin (Loyens & Loeff Frankfurt am Main) Raymond Luja (Loyens & Loeff Amsterdam; Maastricht University) Bruno da Silva (Loyens & Loeff Amsterdam) Rita Szudoczky (Loyens & Loeff Amsterdam) Patrick Vettenburg (Loyens & Loeff Eindhoven) AMSTERDAM P.O. Box 71170, 1008 BD Amsterdam Fred. Roeskestraat 100, 1076 ED Amsterdam t f ROTTERDAM P.O. Box 2888, 3000 CW Rotterdam Blaak 31, 3011 GA Rotterdam t f BRUSSELS Woluwe Atrium, Neerveldstraat , B-1200 Brussels, Belgium t f AMSTERDAM ARNHEM BRUSSELS EINDHOVEN LUXEMBOURG ROTTERDAM ARUBA CURAÇAO DUBAI FRANKFURT GENEVA LONDON NEW YORK PARIS SINGAPORE TOKYO ZURICH EN-EUTA