The ECJ’s decision in joined German cases concerning Mr Manfred Bog and others has generated much debate over the United Kingdom’s VAT treatment of hot takeaway food. HMRC’s declared view in Revenue & Customs Brief 19/11 that the ECJ’s judgement has no implications for the UK treatment of supplies of hot food is unlikely to put the matter to rest. The German courts’ reasons for referring the cases to the ECJ, and the ECJ’s reasoning in its decision.

Reproduced from PLC Tax with the permission of the publishers. For further information visit www.practicallaw.com or call 020 7202 1200.

Legitimate expectation is shorthand for the public law principles that will, in some circumstances, place limitations on a public authority’s ability to act inconsistently with a person’s expectation as to how the authority would exercise its powers in a particular situation or case, where the expectation is reasonably based on a representation by, or consistent past practice of, the authority.

Reproduced from De Voil Indirect Tax Intelligence with the permission of the publishers. For further information visit www.lexisnexis.org.uk or call 084 5370 1234

Deduction of input tax – Article 17(3)(a) of the Sixth VAT Directive – cross-border leasing transactions in principle taxable – but no output tax in fact accounted for in other Member State involved – permissibility of exploitation of differences in implementation of VAT in different Member States – fiscal neutrality – abuse of rights

First published in the Tax Journal, 13 January 2011

On 22 December the European Court of Justice delivered its long-awaited judgment
in the Weald Leasing case concerning the interpretation of the concept of an
‘abusive practice’ as referred to in Case C 255/02 Halifax, Case C-425/06 Part
Service and Case C-162/07 Ampliscientifica.

On 28 October 2010, the European Court (ECJ) issued its preliminary ruling on the reference made by the Court of Appeal in AXA (C-175/09).  In an outcome reminiscent of the ruling in Case C-452/03 RAL [2005] STC 1025, the ECJ determined the reference on a basis which had not even arisen in the judgments of the domestic courts.

The Coalition Government has pressed ahead with plans to extend the application of Chapter I of the Competition Act 1998 to land agreements, previously excluded from its scope. Agreements relating to land, particularly covenants which directly or indirectly restrict the use of land, may need to be assessed to see if they infringe the Chapter I prohibition. This represents both a threat and an opportunity for commercial parties.

UK merger control remains relatively quiet.  There are currently no merger references from the OFT before the Competition Commission (the CC): the only ongoing merger investigation at the CC – Live Nation / Ticketmaster – arose as a result of a remittal from the Competition Appeal Tribunal (the CAT).  Nevertheless, the last six months has resulted in three merger appeals to the CAT (Sports Direct, Eventim and Stagecoach), the Court of Appeal’s decision in British Sky Broadcasting, and some very controversial CC decisions including: the reversals of the Provisional Findings in Stagecoach / Cavendish and Live Nation / Ticketmaster; the novel counterfactual analysis in Stagecoach / Preston Bus; and the unconditional clearance of Sports Direct / JJB Sports, which created local monopolies.

This note discusses recent appeals to the Competition Appeal Tribunal (the “CAT“) under ss. 120 and 179 of the Enterprise Act (the “Act“) against decisions of the Office of Fair Trading (the “OFT“) , the Competition Commission (the “CC“) and the Secretary of State (the “S/S“) on mergers and market investigations.  In both types of case, the CAT applies the same principles as would be applied by a court on an application for judicial review.

This material was first published by E.C.L.R Limited in E.C.L.R. Issue 3, 2010 and is reproduced by agreement with the Publishers

Draft guidance consultation document

In October, the OFT published a draft guidance consultation document, “Mergers – Exceptions to the duty to refer and undertakings in lieu”.  The draft proposes significantly to amend the existing guidance on the de minimis exception and also clarifies the OFT’s approach to the assessment of customer benefits.  The undertakings in lieu section contains an important discussion of the upfront buyer mechanism.  The deadline for comments is 15 January 2010.