# C_2014439EN.01001701.xml

| 8.12.2014 | EN | Official Journal of the European Union | C 439/17 |
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8.12.2014

EN

Official Journal of the European Union

C 439/17

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Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 September 2014 — WebMindLicences Kft.Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság v Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság

(Case C-419/14)

(2014/C 439/25)

Language of the case: Hungarian

Referring court

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Parties to the main proceedings

Applicant: WebMindLicences Kft.

Applicant:

Defendant: Nemzeti Adó és Vámhivatal Kiemelt Adó és Vám Főigazgatóság

Defendant:

Questions referred

Questions referred

| 1. | Under Articles 2(1)(c), 24(1) and 43 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘the VAT Directive’), in order to identify the person supplying the service for the purposes of VAT, when examining whether the transaction is fictitious, has no real financial or commercial content and is intended only to secure a tax advantage, is it relevant for the purposes of interpretation that, in the circumstances of the main proceedings, the managing director and 100 % owner of the commercial company which grants the licence is the natural person who created the know-how transferred by means of the licensing agreement? |
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1.

Under Articles 2(1)(c), 24(1) and 43 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘the VAT Directive’), in order to identify the person supplying the service for the purposes of VAT, when examining whether the transaction is fictitious, has no real financial or commercial content and is intended only to secure a tax advantage, is it relevant for the purposes of interpretation that, in the circumstances of the main proceedings, the managing director and 100 % owner of the commercial company which grants the licence is the natural person who created the know-how transferred by means of the licensing agreement?

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| 2. | If the answer to the first question is in the affirmative, when applying Articles 2(1)(c), 24(1) and 43 of the VAT Directive and assessing whether there is an abusive practice, is it relevant that this natural person exercises or may exercise influence informally over the running of the commercial company which acquired the licence and over the decisions of that company? For the purposes of that interpretation, might it be relevant that the creator of the know-how participates or may participate directly or indirectly, by advising professionally or offering advice on the development and exploitation of the know-how, in taking business decisions relating to the supply of the service based on that know-how? |
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2.

If the answer to the first question is in the affirmative, when applying Articles 2(1)(c), 24(1) and 43 of the VAT Directive and assessing whether there is an abusive practice, is it relevant that this natural person exercises or may exercise influence informally over the running of the commercial company which acquired the licence and over the decisions of that company? For the purposes of that interpretation, might it be relevant that the creator of the know-how participates or may participate directly or indirectly, by advising professionally or offering advice on the development and exploitation of the know-how, in taking business decisions relating to the supply of the service based on that know-how?

| 3. | In the circumstances of the main proceedings and in the light of the considerations set out in the second question, in order to identify the person supplying the service for the purposes of VAT is it relevant, in addition to the analysis of the underlying contractual transaction, that the creator of the know-how, as a natural person, exercises influence, or decisive influence, or issues directions regarding the way the service based on that know-how is supplied? |
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3.

In the circumstances of the main proceedings and in the light of the considerations set out in the second question, in order to identify the person supplying the service for the purposes of VAT is it relevant, in addition to the analysis of the underlying contractual transaction, that the creator of the know-how, as a natural person, exercises influence, or decisive influence, or issues directions regarding the way the service based on that know-how is supplied?

| 4. | If the answer to the third question is in the affirmative, when determining the extent of that influence and those directions, what circumstances can be taken into account, or, more specifically, on the basis of what criteria may it be found that a decisive influence is exercised over the supply of the service and that the real financial content of the underlying transaction was for the benefit of the undertaking which grants the licence? |
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4.

If the answer to the third question is in the affirmative, when determining the extent of that influence and those directions, what circumstances can be taken into account, or, more specifically, on the basis of what criteria may it be found that a decisive influence is exercised over the supply of the service and that the real financial content of the underlying transaction was for the benefit of the undertaking which grants the licence?

| 5. | In the circumstances of the main proceedings, in considering whether a tax advantage has been gained, is it relevant when analysing the relations between the traders and the persons involved in the transaction that the taxable persons who took part in the contested contractual transaction, which is intended to avoid tax, are legal persons, when the tax authority of a Member State attributes the adoption of strategic and operational decisions on exploitation to a natural person? If so, must account be taken of the Member State in which that natural person took those decisions? In circumstances such as those obtaining in the present case, if it can be found that the contractual position of the parties is not decisive, is it relevant for the purpose of interpretation that subcontractors carry out the management of the technical instruments, human resources and financial transactions necessary for the supply of the internet-based service at issue here? |
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5.

In the circumstances of the main proceedings, in considering whether a tax advantage has been gained, is it relevant when analysing the relations between the traders and the persons involved in the transaction that the taxable persons who took part in the contested contractual transaction, which is intended to avoid tax, are legal persons, when the tax authority of a Member State attributes the adoption of strategic and operational decisions on exploitation to a natural person? If so, must account be taken of the Member State in which that natural person took those decisions? In circumstances such as those obtaining in the present case, if it can be found that the contractual position of the parties is not decisive, is it relevant for the purpose of interpretation that subcontractors carry out the management of the technical instruments, human resources and financial transactions necessary for the supply of the internet-based service at issue here?

| 6. | If it can be established that the terms of the licensing agreement do not reflect real financial content does the reclassification of the contract terms and the restoration of the situation which would have obtained if the transaction involving the abusive practice had not taken place imply that the tax authority of the Member State may make a different decision as to the Member State of supply and, therefore, the place where the tax is payable, even though the company which acquired the licence paid the tax payable in the Member State where it is established and in accordance with the legal requirements laid down in that Member State? |
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6.

If it can be established that the terms of the licensing agreement do not reflect real financial content does the reclassification of the contract terms and the restoration of the situation which would have obtained if the transaction involving the abusive practice had not taken place imply that the tax authority of the Member State may make a different decision as to the Member State of supply and, therefore, the place where the tax is payable, even though the company which acquired the licence paid the tax payable in the Member State where it is established and in accordance with the legal requirements laid down in that Member State?

| 7. | Must Articles 49 TFEU and 56 TFEU be interpreted as meaning that a contractual arrangement such as that at issue in the main proceedings, under which a company which is a taxable person in a Member State, transfers by means of a licensing agreement the know-how for the supply of services providing adult content through interactive communication technology to an undertaking which is a taxable person in another Member State, in circumstances where the burden of VAT of the Member State of residence of the company which acquired the licence is more advantageous as regards the service transferred, is contrary to those articles and may represent a abuse of the freedom of establishment and the freedom to supply services. |
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7.

Must Articles 49 TFEU and 56 TFEU be interpreted as meaning that a contractual arrangement such as that at issue in the main proceedings, under which a company which is a taxable person in a Member State, transfers by means of a licensing agreement the know-how for the supply of services providing adult content through interactive communication technology to an undertaking which is a taxable person in another Member State, in circumstances where the burden of VAT of the Member State of residence of the company which acquired the licence is more advantageous as regards the service transferred, is contrary to those articles and may represent a abuse of the freedom of establishment and the freedom to supply services.

| 8. | In circumstances such as those obtaining in the present case, what significance must be attached to the tax advantage which may be presumed to arise and to the commercial considerations taken into account by the company which grants the licence? In that connection and more specifically, is it relevant for the purposes of interpretation that the 100 % owner and manager of the commercial company which grants the licence is the natural person who originally created the know-how? |
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8.

In circumstances such as those obtaining in the present case, what significance must be attached to the tax advantage which may be presumed to arise and to the commercial considerations taken into account by the company which grants the licence? In that connection and more specifically, is it relevant for the purposes of interpretation that the 100 % owner and manager of the commercial company which grants the licence is the natural person who originally created the know-how?

| 9. | In analysing abusive conduct may circumstances such as those of the main proceedings, for instance the technical and infrastructure data relating to the setting up and performance of the service which is the subject of the transaction at issue and the preparation and human resources available to the company which grants the licence to supply the service in question, be taken into account and, if so, what significance do they have? |
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9.

In analysing abusive conduct may circumstances such as those of the main proceedings, for instance the technical and infrastructure data relating to the setting up and performance of the service which is the subject of the transaction at issue and the preparation and human resources available to the company which grants the licence to supply the service in question, be taken into account and, if so, what significance do they have?

| 10. | In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and prevent the loss to the public coffers entailed by tax evasion and avoidance across the borders of the Member States, in the case of a transaction for the supply of services and in order to identify the person supplying the service, the tax authority of the Member State, at the evidence-gathering stage of the administrative tax procedure and in order to clarify the facts, is entitled to admit data, information and evidence, and, therefore, records of intercepted communication, obtained without the knowledge of the taxable person by the investigating body of the tax authority in the context of a criminal procedure and to use them as a basis for its assessment of the tax implications, and that, for its part, the administrative court hearing the action brought against the administrative decision of the tax authority of the Member State is entitled to carry out an assessment of those matters as evidence, while examining the legality of that evidence? |
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10.

In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and prevent the loss to the public coffers entailed by tax evasion and avoidance across the borders of the Member States, in the case of a transaction for the supply of services and in order to identify the person supplying the service, the tax authority of the Member State, at the evidence-gathering stage of the administrative tax procedure and in order to clarify the facts, is entitled to admit data, information and evidence, and, therefore, records of intercepted communication, obtained without the knowledge of the taxable person by the investigating body of the tax authority in the context of a criminal procedure and to use them as a basis for its assessment of the tax implications, and that, for its part, the administrative court hearing the action brought against the administrative decision of the tax authority of the Member State is entitled to carry out an assessment of those matters as evidence, while examining the legality of that evidence?

| 11. | In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and compliance with the obligation of the Member States to guarantee observance of the obligations imposed on the taxable person, the discretion with regard to the means available to the tax authority of the Member State includes the option for that Member State to use evidence obtained initially for the purpose of criminal proceedings to prevent tax avoidance, including where national law itself does not allow information to be obtained without the knowledge of the person concerned in the context of an administrative procedure to prevent tax avoidance, or subjects it in the context of criminal proceedings to guarantees which are not provided in the administrative tax proceedings, recognizing at the same time the right of the administrative authority to act in accordance with the principle of the freedom of evidence? |
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11.

In the situation analysed in the present case, must Articles 2(1)(c), 24(1), 43 and 273 of the VAT Directive, in conjunction with Articles 4(3) and 325 TFEU, be interpreted as meaning that, in the interests of the proper observance of the obligation of the Member States of the Union to collect the total amount of VAT effectively and punctually and compliance with the obligation of the Member States to guarantee observance of the obligations imposed on the taxable person, the discretion with regard to the means available to the tax authority of the Member State includes the option for that Member State to use evidence obtained initially for the purpose of criminal proceedings to prevent tax avoidance, including where national law itself does not allow information to be obtained without the knowledge of the person concerned in the context of an administrative procedure to prevent tax avoidance, or subjects it in the context of criminal proceedings to guarantees which are not provided in the administrative tax proceedings, recognizing at the same time the right of the administrative authority to act in accordance with the principle of the freedom of evidence?

| 12. | Does Article 8(2) of the ECHR, in conjunction with Article 52(2) of the Charter, prevent recognition that the tax authority of the Member State has the authority described in questions 10 and 11, or in the circumstances of the present case, can it be considered justified, in order to combat tax avoidance, to use in the context of an administrative tax procedure, conclusions drawn from information obtained without the knowledge of the person concerned, with a view to the effective collection of tax and for the sake of the financial well-being of the country? |
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12.

Does Article 8(2) of the ECHR, in conjunction with Article 52(2) of the Charter, prevent recognition that the tax authority of the Member State has the authority described in questions 10 and 11, or in the circumstances of the present case, can it be considered justified, in order to combat tax avoidance, to use in the context of an administrative tax procedure, conclusions drawn from information obtained without the knowledge of the person concerned, with a view to the effective collection of tax and for the sake of the financial well-being of the country?

| 13. | If the answer to questions 10 and 12 is that the tax authority of the Member State may use such evidence in the administrative procedure, is the tax authority of the Member State required, in order to guarantee the effectiveness of the right to good administration and the rights of the defence pursuant to Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 51(1) of the Charter, to hear the taxable person in the course of the administrative procedure, to guarantee him access to the conclusions suggested by the information obtained without his knowledge and to respect the purpose for which the data appearing in the evidence were obtained, or, in that context, does the fact that the information collected without the knowledge of the person concerned is intended solely for an investigation of a criminal nature prevent from the outset the use of such evidence? |
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13.

If the answer to questions 10 and 12 is that the tax authority of the Member State may use such evidence in the administrative procedure, is the tax authority of the Member State required, in order to guarantee the effectiveness of the right to good administration and the rights of the defence pursuant to Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 51(1) of the Charter, to hear the taxable person in the course of the administrative procedure, to guarantee him access to the conclusions suggested by the information obtained without his knowledge and to respect the purpose for which the data appearing in the evidence were obtained, or, in that context, does the fact that the information collected without the knowledge of the person concerned is intended solely for an investigation of a criminal nature prevent from the outset the use of such evidence?

| 14. | In the event that evidence is obtained in breach of Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 47 of the Charter, does national legislation under which the challenging in judicial proceedings of the procedural legality of decisions given in tax matters can only succeed and result in the setting aside of the decision if, according to the circumstances of the case, there is the possibility in practice that the contested decision would have been different if the procedural error had not occurred and if, moreover, that defect affected the substantive legal position of the applicant, or do the procedural errors made in that way have to be taken into account in a wider context, regardless of the influence the procedural error which infringes the Charter has on the outcome of the proceedings? |
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14.

In the event that evidence is obtained in breach of Articles 7, 8, 41 and 48 of the Charter, in conjunction with Article 47 of the Charter, does national legislation under which the challenging in judicial proceedings of the procedural legality of decisions given in tax matters can only succeed and result in the setting aside of the decision if, according to the circumstances of the case, there is the possibility in practice that the contested decision would have been different if the procedural error had not occurred and if, moreover, that defect affected the substantive legal position of the applicant, or do the procedural errors made in that way have to be taken into account in a wider context, regardless of the influence the procedural error which infringes the Charter has on the outcome of the proceedings?

| 15. | Does the effectiveness of Article 47 of the Charter require that, in a procedural situation such as the present, the administrative court hearing the action against the administrative decision of the tax authority of the Member State may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has no knowledge of that documentation and has been unable to contest its legality before a court? |
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15.

Does the effectiveness of Article 47 of the Charter require that, in a procedural situation such as the present, the administrative court hearing the action against the administrative decision of the tax authority of the Member State may review the legality of the obtaining of evidence collected for the purpose of criminal proceedings without the knowledge of the person concerned in the context of criminal proceedings, in particular when the taxable person against whom the criminal proceedings have been brought in parallel has no knowledge of that documentation and has been unable to contest its legality before a court?

| 16. | Also having regard to question 6, must Council Regulation (EU) No 904/2010 (2) of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax, in the light, in particular, of its seventh recital, according to which, for the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed and, in order to do so, they must not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State, be interpreted as meaning that, in a situation where the facts are as in the present case, the tax authority of the Member State which discovers the tax debt must make a request to the tax authority of the Member State in which the taxable person was subject to a tax inspection and complied with its obligation to pay tax? |
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16.

Also having regard to question 6, must Council Regulation (EU) No 904/2010 (2) of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax, in the light, in particular, of its seventh recital, according to which, for the purposes of collecting the tax owed, Member States should cooperate to help ensure that VAT is correctly assessed and, in order to do so, they must not only monitor the correct application of tax owed in their own territory, but should also provide assistance to other Member States for ensuring the correct application of tax relating to activity carried out on their own territory but owed in another Member State, be interpreted as meaning that, in a situation where the facts are as in the present case, the tax authority of the Member State which discovers the tax debt must make a request to the tax authority of the Member State in which the taxable person was subject to a tax inspection and complied with its obligation to pay tax?

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| 17. | If the answer to question 16 is in the affirmative and the decisions adopted by the tax authority of the Member State are challenged before a court and are found to be unlawful in procedural terms on that ground, in other words, on the basis of failure to obtain information and the absence of a request, what action should the court hearing the action against the administrative decisions adopted by the tax authority of the Member State take, having regard also to the considerations set out in question 14? |
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17.

If the answer to question 16 is in the affirmative and the decisions adopted by the tax authority of the Member State are challenged before a court and are found to be unlawful in procedural terms on that ground, in other words, on the basis of failure to obtain information and the absence of a request, what action should the court hearing the action against the administrative decisions adopted by the tax authority of the Member State take, having regard also to the considerations set out in question 14?

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(1)  OJ L 347, p. 1.

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(2)  OJ L 268, p. 1.

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