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The three categories of differences because of the discretion of the Member States are expected. The most expected differences of the three are the ones depending on that some provisions of the VAT Directive are optional for the Member States to implement. It cannot be assumed that every Member State has implemented the optional rules. When optional rules are implemented, the Member State has a certain margin of appreciation. It can also be expected that especially Member States that have entered the EU rather recently have maintained some exclusions from the right of deduction under article of the VAT Directive.
For the original Member States, some exclusions from the right to deduct input VAT may have played out their role. Derogations due to the accession treaties were previously difficult to find. Since they nowadays are included in the VAT Directive, this does not apply anymore. It is, however, not necessarily the case that the Member States actually make use of the derogations.
To find this out, it is necessary to examine national VAT law. The same kind of persons would be taxable persons, the same kind of transactions would be taxable transactions, the same kind of transactions would be exempted, and the requirements for deduction would be the same. When VAT is studied in detail, this is not always the case.
For example, if a temperance society runs a cinema in Sweden, the sale of tickets would not be subject to VAT. One reason for differences is built into the procedural system of the EU. Under article TFEU 26 regarding preliminary rulings, any national court or tribunal may and any national court against whose decisions there is no judicial remedy under national law shall bring the matter before the CJEU if it considers that a decision on the question is necessary to enable it to give judgment.
This means that only the last instance is obliged to submit questions of interpretation to the CJEU. Since a leave to appeal is often needed to the last instance, lower instances without any obligation to submit the questions of interpretation to the EU, are often the last instance. Even if a case reaches the last instance, it is up to the court to decide whether a preliminary ruling is needed or not. Hence, different interpretations of EU VAT law can be observed in both lower and the highest court instances, when case law is compared.
Furthermore, as mentioned above, preliminary rulings under article regard interpretation and not application of the law. To apply the law is always a matter for the national court. It is difficult to draw a sharp line between application and interpretation, but it can be concluded that even if the interpretation is the same, the application may differ.
The only procedural way to deal with different application in different Member States is that the commission or another Member State brings a matter of non-fulfillment of the obligations laid down in the treaty before the CJEU.
The procedure for such an action is laid down in article and TFEU. The procedural reasons are practical explanations on why differences may occur. If neither the interpretation nor the application of a provision in the VAT Directive is clear, and not all cases that should need to be clarified reach the CJEU, differences may occur.
Instead, the laws of one society are primarily borrowed from other societies. Consequently, most law operates in a society very different from the one for which it was originally created. This borrowing is what he calls legal transplants Watson Since the VAT Directive is developed by the Member States as a collective, it is a farrago of influences from the different Member States that shall be implemented in each Member State.
Therefore, the theory of legal transplants is worth some attention in this article. I find it difficult to imagine that anyone would deny that legal borrowing is of enormous importance in legal development. Likewise I find it hard to imagine that anyone would believe that the borrowed rule would operate in exactly the way it did in its other home. What I think is significant in the context of this article is not the identity of interpretation but the fact that identity of rule does lead to much greater similarity between the two systems.
In no way should one neglect the differences. If a legal rule is taken from somewhere and is placed somewhere else, the outcome will not be the same. I suggest that the same applies when a directive is implemented in different jurisdictions, and I even suggest that the same applies for regulations that shall not be implemented, but have general application.
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But, as often has happened, the law in the books and the law in action prove to be quite different. The charters usually provided that colonial legislation should not be repugnant to the common law of England, and colonial statutes were sometimes disallowed by the Privy Council on this ground. In the everyday administration of justice, however, there was for a long time little or no need of so advanced and technical a body of precepts as the seventeenth-century English law.
According to legal theory, Michigan, Illinois and Wisconsin were once governed by the Custom of Paris. Yet, French law has not left the slightest mark upon the actual law of those states. When the society changes—as the US society did after the American Civil War and in the beginning of last century due to a massive industrial growth—the law had to be understood differently. Thus we shall know better the possibilities of our own legal materials, which have come down to us from the last century.
Pound comments on the difference between law in the books and law in action, and that the law in action differs from the law in the books, due to the situation in the surrounding society Pound This difference stems from Justinians book Institutes from30 December Watson Watson assumes that the distinction between the law in the books and the law in action is valid, but that the concept of the law in the books must be subdivided into two categories; first, law that reflects the conditions, needs, and desires of the society in which it operates; and second, borrowed law, which does not, but must hence not be unsatisfactory Watson The theory of legal transplants has been heavily criticized.
Legrand , for example, suggests that it is pointless to discuss legal transplants, since the only thing that can be transferred to one country from another is rules Legrand Rules are transferred from one country to another, and the rules are often not defined. The concept of legal is hence, according to Legrand , reduced to rules.
The main criticism, however, is regarding how law changes—if the law changes because of a massive borrowing of rules so Watson or if the law changes due to societal factors so Legrand. Do they come from the national laws of the Member States or are they results of the demands of the surroundings society, for example, a well-functioning common market or an efficient tax administration?
For the topic of this article, focusing on national VAT law in the Member States, it is not of greater relevance. The aim of comparative studies should therefore not be to find analogies and parallels, but on the contrary, to find individuality of developments. The causes of the specific characteristics should then be analyzed. In this sense, because it communicates the French sensibility to law, the rule can serve as a focus of inquiry into legal Frenchness and into Frenchness tout court. It cannot be regarded only as a rule in terms of a bare propositional statement.
There is more to ruleness than a series of inscribed words which is to say that a rule is not identical to the inscribed words.
In his opinion, to claim more is to claim too much. His conclusion is that in any meaningful sense of the term, legal transplants cannot happen Legrand In VAT, the directive is the set of rules that through implementation is transformed into national law. Therefore, it does not apply that just words are transferred. The implementation of the directive as such enables an adaption to national circumstances, since it is only binding as to the result to be achieved. This depends on that the law operates in an actual context and that the content of the law is to a great extent given of individuals with a certain national common legal understanding.
Even within one and the same jurisdiction, law is not always consistently applied Rizal Salim The fact that different administrative courts of first instance or different districts courts interpret and apply the law in different ways is dealt with by having supreme administrative courts and supreme courts that can clarify how the law should be understood. In my opinion, this is not a failure, but a part of the legal system.
This is how law works in practice. As long as the laws are general and not casuistic, there will always be different understanding of their content. From a practical point of view, the imperfections may cause problems. Different classification of the same goods or services in different tMember States may lead to double taxation or non-taxation in cross-border trade; it may result in distortion of competition because one Member State deems a supply exempt whereas another Member State does not or because of different understanding on limitations in the right of deduction of input VAT.
Suppose we found that the statutes of the two legal systems were the same. We might find either that the judges of both systems applied the same rules or that they applied different ones. If they applied the same rules, the reason might be that these rules actually were consequences of the statutes. If, however, they applied different rules, it would be clear that the statutes alone were not responsible for the rules followed by the judges.
We could then ask what, if not the statute, might be influencing the judges. A comparative method can thus provide a check on the claim of jurists within a legal system that their method rests only on logic and deduction. The legal formants of a legal system are not necessarily all of legal character. Canon law can hardly be explained without the notion of God.
Former Soviet law is difficult to explain without the ideas taken from Engels, Marx, and Lenin Sacco The legal formants may differ from court to court and from judge to judge within one and the same legal system Sacco A judge appointed from an academic position might stress on scholarly opinions more than a judge with a background as a legal practitioner Bussani Just like the theory of legal transplants, the theory of legal formants departs from the idea that what looks the same does not turn out the same in reality, due to complexity inwhat constitutes a legal systemand the content of the law.
The legal formants in a system are more than formal lawand other relevant sources dealt with in a certain manner. The potential of that the law in practice turns out exactly the same in all Member States after a harmonization of the law seems to be fairly low. As mentioned above, Cappacioli has made a comparative study on the VAT treatment of bitcoin. Under article 2 d of the VAT Directive, the supply of services for consideration within the territory of a Member State by a taxable person acting as such shall be subject to VAT. A supply of services is any transaction that does not constitute a supply of goods.
Services may be exempt from VAT. There are some exemptions in the VAT Directive that could apply on the exchange of bitcoin, article Before that, the taxation or non-taxation of bitcoin exchange differed between the Member States. In Estonia and Poland, transactions with bitcoin were not exempt from VAT due to a strict interpretation of article The exemptions in article shall, according to the case law of the CJEU, be strictly interpreted, and the transactions with bitcoin or similar unofficial means of payment are not expressively exempted in article Liber Amicorum E.
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