LEY 437-06 PDF

The Constitution establishes a minimum protection of the right to privacy. This provision also includes the right of inviolability of the home and secrecy of communications and private documents, as well as freedom of the press, freedom of expression and freedom of association. Article 8. Habeas data has not been expressly included in the Constitution or other applicable law in Dominican Republic. Dominican Republic does not have comprehensive data protection legislation. However, privacy is protected in various laws, decrees, and in resolutions issued by different state organizations.

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This was a reference for a preliminary ruling under art. The taxpayer entered into a partial chartering contract under which, in return for payment, it provided part of the space on its vessels to transport containers between several ports on the Iberian peninsula and the Canary Islands an extra-Community territory. The taxpayer did not include VAT on the invoices relating to that contract since it believed that the chartering transaction was exempt. However, the Spanish tax authorities, holding that the exemption did not apply, in so far as the contract in question related to partial chartering and not full chartering, made adjustments for VAT linked to the sums paid under that chartering contract.

The taxpayer then challenged that adjustment before the regional economic administrative court in Madrid, which dismissed its application. It appealed to the High Court of Justice, which held that the resolution of the dispute before it required an interpretation of the sixth directive, stayed proceedings and made a referred to the European Court of Justice the questions whether the term chartering in the exemption provided for in art.

Article 15 5 made no distinction between full chartering and partial chartering. It merely included the chartering of vessels used for navigation on the high seas within those cases exempt from VAT laid down in art.

Although the introductory sentence of art. Whether a specific transaction was subject to or exempt from VAT could not depend on its classification in national law. Article 15 dealt with the exemption from VAT of transactions for export outside the Community, equivalent transactions and international carriage.

In the context of international business, such an exemption sought to respect the principle that the relevant goods or services should be taxed at their place of destination.

Every export and equivalent transaction should thus be exempt from VAT in order to ensure that the relevant transaction was taxed only in the place where the relevant products were consumed.

In the present case, under national law only the full chartering of vessels used for navigation on the high seas and for international shipping was exempt from VAT. Therefore, notwithstanding that they might be transactions equivalent to export, that law did not allow the VAT exemption to apply to partial chartering of those vessels. Such a condition deprived the exemption of chartering set out in art. In those circumstances, while the words used to describe the exemption set out in art.

Therefore, art. Consequently, that provision precluded national legislation which granted the benefit of the VAT exemption only in the case of full chartering of such vessels. In this connection, it should be noted that the Spanish legislation implementing the Sixth Directive provides only for full chartering to be exempted. The following transactions shall be exempt from the tax under the conditions and in the circumstances to be laid down by regulation:.

The supply, construction, modification, repair, maintenance, full chartering and hiring of the vessels listed below:. Navicon did not apply the amount of value added tax to the respective invoices, as it believed that the transaction was exempt from the payment of VAT. The competent Spanish tax authority made an adjustment to the amounts paid under the chartering agreement for the amount of VAT, as it took the view that the exemption did not apply when there was partial chartering and not full chartering.

Does the Sixth Directive preclude a national law which allows exemption only for full chartering? The exemptions laid down under the Sixth Directive are to be strictly interpreted, because they constitute an exception to the general principle according to which VAT is to be levied on any service supplied against payment by a taxable person.

The Belgian Government and the Commission contend that the concept of chartering refers both to partial and full chartering. According to the Belgian Government, the purpose of the wording of Article 15 5 of the Sixth Directive is to exempt the chartering of certain vessels, in particular seagoing vessels referred to in paragraph 4 a and b , and not to exempt particular types of chartering.

In any event, according to the case-law of the Court, when a provision of Community law can be construed in different ways, the interpretation which ensures that the provisions retain their effectiveness must be favoured. The Commission submits in the first place that the Court has consistently held that the first sentence of Article 15 of the Sixth Directive does not give Member States the ability to influence the material scope of the Sixth Directive, as defined by that Directive.

Furthermore, goods exported to third countries must be free of any taxes when they leave the territory of the Community, which requires that chartering services should not be taxed, whether they are partial or full. Lastly, if the concept of chartering were to be limited to full chartering only, this would mean that the right to an exemption would depend on the size of the vessel, because a similar volume of freight would, or would not, be exempted, depending on the size of the vessel concerned.

However, the Commission also raises an argument which could support the view that the Spanish legislation is compatible with Community law. However, the Commission takes the view that this argument should not be upheld. First, the wording of the Sixth Directive makes the chartering and carriage of goods subject to different legal regimes and, secondly, the two kinds of contract are very different.

The Commission submits that it is for to the national court to determine, on the basis of the wording of the agreement between the parties as well as on the basis of the nature and the content of the service provided, whether the contract in question fulfils the conditions required for a chartering agreement for the purposes of Article 15 5 of the Sixth Directive. The provision does not define the concept of chartering more precisely. The Court of Justice has consistently held that VAT exemptions must be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on each service supplied for consideration by a taxable person.

However this principle of strict interpretation cannot have the effect of giving Article 15 a meaning different from that which is clear from its wording. It appears that, unlike what is provided in the Sixth Directive with regard to the exemption under Article 15 4 of the directive, 8 Member States may not restrict the exemption laid down under Article 15 5 of the directive until Community fiscal rules specifying the scope of this exemption enter into force.

In this respect, it must also be questioned whether a restrictive approach, such as that of the Spanish legislature, could be reconciled with the system and the objective of the Sixth Directive. In this respect, it should also be noted that exemptions are independent concepts of Community law which must be placed in the general context of the common system of VAT introduced by the Sixth Directive. Under such an approach, the right to an exemption in respect of a chartering operation would depend on the size of the vessel, because a chartering operation for the transportation of the same volume of freight would be exempted on a small vessel, since it would use the full cargo capacity of the vessel and therefore be regarded as a full chartering, whereas on a larger vessel the same volume of freight would use only part of the full cargo capacity, which would therefore be regarded as partial chartering of the vessel.

Such inconsistencies would put the effectiveness of Article 15 5 of the Sixth Directive at risk. Such an outcome would clearly be contrary to the principle of the country of destination, according to which goods are to be taxed in the country where they will be consumed by the end consumer. It follows in particular from that principle that goods which are intended to be exported outside the Community must be free of any tax, including any tax on their costs in respect of transportation outside the Community, because such costs will be included in the price of the exported goods.

As pointed out by the Commission, it is, however, questionable whether such an application of that article would be consistent with the system and the logic of the Sixth Directive.

First, it appears that an agreement for charter and an agreement for the transportation of goods are quite different with regard to their object and their legal regime. When a vessel — or part of it, in a case of partial chartering — is subject to an agreement for charter and hire, it is provided for a certain purpose, for example transportation, whereas an agreement for the carriage of goods is a contract by which the carrier undertakes the obligation to deliver goods to a certain destination.

Put differently, while contracts for charter or hire concern the means of transportation as such, a contract of carriage concerns the contents which are to be carried by the means of transportation. These differences appear to support the argument that the relevant regime under the Sixth Directive should be different. An assimilation of partial chartering to the carriage of goods is also likely to question the need for the separate exemption of full chartering.

If partial chartering resembled carriage of goods to such an extent as to assimilate them in spite of substantial differences in the legal nature of the agreement, it may be doubted whether a separate exemption for chartering should exist at all and whether it should not be assimilated altogether to the carriage of goods.

The assimilation of partial chartering to the carriage of goods would therefore be difficult to reconcile with the wording of the Sixth Directive. Lastly, since these two types of agreement are plainly quite different in their legal nature, it may reasonably be assumed that the Community legislature would have made it clear in the Sixth Directive if it had intended to restrict the concept of chartering to full chartering alone and to assimilate partial chartering to the carriage of goods.

It also follows from the above that the answer to the second question should be that the Sixth Directive precludes a national law which allows exemption only for full chartering. In the light of the foregoing, I propose that the Court should answer the questions referred as follows:. Article First: the supply, construction, modification, repair, maintenance, full chartering and hiring of the vessels listed below:.

The exemption shall, in no circumstances, apply to vessels intended for sporting or recreational activities, or for general private use. Navicon did not include VAT on the invoices relating to that contract since it believed that the chartering transaction was exempt.

However, the Spanish tax authorities, holding that the exemption provided for in Article Following the decision to dismiss the application it appealed to the referring court.

The Tribunal Superior de Justicia de Madrid High Court of Justice, Madrid , holding that the resolution of the dispute before it required an interpretation of the Sixth Directive, decided to stay proceedings and to refer to the Court of Justice the following questions for a preliminary ruling:. By its two questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 15 5 of the Sixth Directive must be interpreted as covering both full chartering and partial chartering of vessels used for navigation on the high seas.

In that regard, that court also asks whether that provision precludes a national law, such as that in dispute in the main proceedings, which grants the benefit of the exemption from VAT only in cases of full chartering of such vessels. The Spanish and Greek Governments consider that the concept of chartering laid down in Article 15 5 of the Sixth Directive covers only chartering of the entire capacity of the vessels and therefore conclude that the VAT Law complies with that provision.

They submit that, according to settled case-law of the Court in that regard, the exemptions laid down in the Sixth Directive should be strictly interpreted as they constitute derogations from the general principle that VAT is levied on all services supplied for consideration by a taxable person. The Spanish Government adds that the purpose of the exemption provided for by that provision is to facilitate the application of VAT in cases of deliveries outside the Community, which implies the exemption of chartering only in cases of international shipping.

According to it, the interpretation which best complies with that objective, and which is as strict as possible, consists of granting such an exemption only in the case where there is full chartering of the vessel, that is, when the recipient of the service being supplied is presumed to be using that service in the context of international shipping. According to the Belgian Government, it is abundantly clear from the wording of Article 15 5 of the Sixth Directive that the objective of that provision is to exempt the chartering of vessels intended for international shipping from VAT and not to exempt certain kinds of chartering of vessels.

In any case, that government recalls that, when a provision of Community law is open to several interpretations, it is the interpretation which is appropriate to ensure the effectiveness of that provision which should be preferred. In the case in the main proceedings, an interpretation of the concept of chartering limited to full chartering would compromise the effectiveness of Article 15 5 , inasmuch as, for the same journey and the same type of cargo, partial chartering would give rise to payment of VAT while, in the case of full chartering, the transaction would be exempt.

Moreover, the first sentence of Article 15 of the Sixth Directive does not in any way confer on Member States the power to alter the substantive scope of an exemption, such as defined in that directive. The Commission also takes the view that goods that are exported to a non-member country must be free from all taxes when they leave the territory of the Community, which requires that taxes are not imposed on the chartering service provided, whether the chartering in question is full or partial chartering.

Finally, applying the exemption to full chartering alone would mean that the right to an exemption would depend on the size of the vessel carrying out the chartering service, as the same volume of freight would, or would not, be exempted depending on the capacity of the vessel concerned.

The essential objective and the purpose of the contract would, in each case, be the transfer of goods from one place to another. It considers, however, that that assimilation would go against the content and the objective of the Sixth Directive, which conferred a different legal scheme on chartering to that conferred on the carriage of goods.

Finally, the Commission submits that it is for the national court to decide, taking account of the terms of the contract between the parties and the specific nature and content of the service provided, whether the contract at issue in the main proceedings has the characteristics of a chartering contract within the meaning of Article 15 5 of the Sixth Directive. It is clear from the decision making the reference that Article Further, it is common ground, that according to the second subparagraph of Article 3 3 of the Sixth Directive, the Canary Islands are an extra-Community territory and that, under that provision, read together with Article 15 1 thereof, the carriage of goods to those islands is considered as an export for VAT purposes.

That system is based in particular on two principles. First, each supply of goods and services effected for consideration by a taxable person is subject to VAT. Second, in accordance with the principle of fiscal neutrality, economic operators carrying out the same transactions may not be treated differently in relation to the levying of VAT Cimber Air , paragraph It is in light of those criteria of interpretation derived from the case-law mentioned at paragraphs 20 to 22 of the present judgment that the concept of chartering in Article 15 5 of the Sixth Directive should be interpreted.

It is clear, in the first place, from the wording of Article 15 5 of the Sixth Directive that Member States are to exempt the supply, modification, repair, maintenance, chartering and hiring of the sea-going vessels referred to in paragraph 4 a and b of that article, particularly those used for navigation on the high seas and for the purposes of commercial activities, as well as the supply, hiring, repair and maintenance of equipment — including fishing equipment — incorporated or used therein.

Thus, it must be stated that Article 15 5 makes no distinction between full chartering and partial chartering. That provision merely includes the chartering of vessels used for navigation on the high seas within those cases exempt from VAT laid down in Article 15, without specifying whether such chartering must be full or partial. Moreover, to the extent that Article Secondly, as regards the objective pursued by Article 15 of the Sixth Directive, it should be stated that this deals with the exemption from VAT of transactions for export outside of the Community, equivalent transactions and international carriage.

In the context of international business, such an exemption seeks to respect the principle that the relevant goods or services should be taxed at their place of destination. Every export and equivalent transaction should thus be exempt from VAT in order to ensure that the relevant transaction is taxed only in the place where the relevant products are consumed.

In the case in the main proceedings, it follows from Article Therefore, notwithstanding that they may be transactions equivalent to export, that Law does not allow the VAT exemption to apply to partial chartering of those vessels. It follows that levying tax on that type of chartering at the time of such transactions infringes the principle that the relevant goods and services should be taxed at their place of destination and goes against the objective of the exemption scheme set out in Article 15 of the Sixth Directive.

It must be stated that such a condition deprives the exemption of chartering set out in Article 15 5 of the Sixth Directive of its effectiveness. Therefore, the reply to the questions referred must be that Article 15 5 of the Sixth Directive must be interpreted as covering both full chartering and partial chartering of vessels used for navigation on the high seas.

Consequently, that provision precludes national legislation, such as that at issue in the main proceedings, which grants the benefit of the VAT exemption only in the case of full chartering of such vessels. In that context, and by way of such equivalence, the exemption could be granted to partial chartering of a vessel within the framework of a transaction which is treated as being an export transaction.

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