# C_2006022EN.01000102.xml

| 28.1.2006 | EN | Official Journal of the European Union | C 22/1 |
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28.1.2006

EN

Official Journal of the European Union

C 22/1

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(First Chamber)

of 27 October 2005

in Case C-41/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden Levob Verzekeringen BV, OV Bank NV v Staatssecretaris van Financiën (1)

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(Sixth VAT Directive - Articles 2, 5, 6 and 9 - Transfer of software recorded on a carrier - Subsequent customisation of the software to the purchaser's specific requirements - Single taxable supply - Supply of services - Place of supply)

(2006/C 22/02)

Language of the case: Dutch

In Case C-41/04: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 30 January 2004, received at the Court on 2 February 2004, in the proceedings between Levob Verzekeringen BV, OV Bank NV and Staatssecretaris van Financiën — the Court: (First Chamber) composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), N. Colneric, J.N. Cunha Rodrigues and E. Levits, Judges; J. Kokott, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 27 October 2005, the operative part of which is as follows:

| 1. | Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that where two or more elements or acts supplied by a taxable person to a customer, being a typical consumer, are so closely linked that they form objectively, from an economic point of view, a whole transaction, which it would be artificial to split, all those elements or acts constitute a single supply for purposes of the application of VAT; |
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1.

Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that where two or more elements or acts supplied by a taxable person to a customer, being a typical consumer, are so closely linked that they form objectively, from an economic point of view, a whole transaction, which it would be artificial to split, all those elements or acts constitute a single supply for purposes of the application of VAT;

| 2. | This is true of a transaction by which a taxable person supplies to a consumer standard software previously developed, put on the market and recorded on a carrier and subsequently customises that software to that purchaser's specific requirements, even where separate prices are paid; |
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2.

This is true of a transaction by which a taxable person supplies to a consumer standard software previously developed, put on the market and recorded on a carrier and subsequently customises that software to that purchaser's specific requirements, even where separate prices are paid;

| 3. | Article 6(1) of Sixth Directive 77/388 must be interpreted as meaning that a single supply such as that referred to in paragraph 2 of this operative part is to be classified as a 'supply of services' where it is apparent that the customisation in question is neither minor nor ancillary but, on the contrary, predominates; such is the case in particular where in the light of factors such as its extent, cost or duration the customisation is of decisive importance in enabling the purchaser to use the customised software; |
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3.

Article 6(1) of Sixth Directive 77/388 must be interpreted as meaning that a single supply such as that referred to in paragraph 2 of this operative part is to be classified as a 'supply of services' where it is apparent that the customisation in question is neither minor nor ancillary but, on the contrary, predominates; such is the case in particular where in the light of factors such as its extent, cost or duration the customisation is of decisive importance in enabling the purchaser to use the customised software;

| 4. | Article 9(2)(e), third indent, of Sixth Directive 77/388 must be interpreted as meaning that it applies to a single supply of services such as that referred to in paragraph 3 of this operative part performed for a taxable person established in the Community but not in the same country as the supplier. |
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4.

Article 9(2)(e), third indent, of Sixth Directive 77/388 must be interpreted as meaning that it applies to a single supply of services such as that referred to in paragraph 3 of this operative part performed for a taxable person established in the Community but not in the same country as the supplier.

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(1)  OJ C 94, 17.4.2004.

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