# C_2004190EN.01000601.xml

| 24.7.2004 | EN | Official Journal of the European Union | C 190/6 |
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24.7.2004

EN

Official Journal of the European Union

C 190/6

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Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Quinta Civile (Supreme Court of Cassation, Fifth Civil Chamber) by order of that court of 18 February 2004 in the case of Ministero dell'Economia e delle Finanze (Ministry of Economic Affairs and Finance) and Agenzia delle Entrate (Revenue Agency) against FCE Bank plc

(Case C-210/04)

(2004/C 190/09)

Reference has been made to the Court of Justice of the European Communities by order of 18 February 2004 of the Corte Suprema di Cassazione, Sezione Quinta Civile, which was received at the Court Registry on 12 May 2004, for a preliminary ruling in the case of Ministero dell'Economia e delle Finanze and Agenzia delle Entrate against FCE Bank plc on the following questions:

| 1. | Must Articles 2(1) and 9(1) of the Sixth Directive be interpreted as meaning that the branch of a company established in another State (belonging to the European Union or otherwise), which has the characteristics of a production unit, may be regarded as an independent person and thus that a legal relationship between the entities can be said to exist with consequent liability for VAT in relation to supplies of services effected by the parent company? Can the ‘arm's length’ standard laid down in Article 7(2) and (3) of the OECD model convention on double taxation and the Convention of 21 October 1988 between Italy and the United Kingdom of Great Britain and Northern Ireland be used to define that relationship? Can a legal relationship be said to exist where there is a cost-sharing agreement concerning the supply of services to the subordinate entity? If so, what conditions must be satisfied for such relationship to be considered to exist? Must the notion of legal relationship be dealt with under national law or Community law? |
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1.

Must Articles 2(1) and 9(1) of the Sixth Directive be interpreted as meaning that the branch of a company established in another State (belonging to the European Union or otherwise), which has the characteristics of a production unit, may be regarded as an independent person and thus that a legal relationship between the entities can be said to exist with consequent liability for VAT in relation to supplies of services effected by the parent company? Can the ‘arm's length’ standard laid down in Article 7(2) and (3) of the OECD model convention on double taxation and the Convention of 21 October 1988 between Italy and the United Kingdom of Great Britain and Northern Ireland be used to define that relationship? Can a legal relationship be said to exist where there is a cost-sharing agreement concerning the supply of services to the subordinate entity? If so, what conditions must be satisfied for such relationship to be considered to exist? Must the notion of legal relationship be dealt with under national law or Community law?

| 2. | Can the passing on of the costs of such services to the branch concerned be regarded as consideration for the services supplied for the purposes of Article 2 of the Sixth Directive, regardless of the proportion of the costs passed on and the resulting profit to the company, and if so to what extent? |
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2.

Can the passing on of the costs of such services to the branch concerned be regarded as consideration for the services supplied for the purposes of Article 2 of the Sixth Directive, regardless of the proportion of the costs passed on and the resulting profit to the company, and if so to what extent?

| 3. | If the supply of services between the parent company and the branch are regarded in principle as being exempt from VAT because the recipient is not independent and consequently a legal relationship between the two entities cannot be said to exist, is a national administrative practice which considers that the supply is taxable in such a case contrary to the right of establishment laid down in Article 43 of the EC Treaty where the parent company is established in another Member State of the European Union? |
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3.

If the supply of services between the parent company and the branch are regarded in principle as being exempt from VAT because the recipient is not independent and consequently a legal relationship between the two entities cannot be said to exist, is a national administrative practice which considers that the supply is taxable in such a case contrary to the right of establishment laid down in Article 43 of the EC Treaty where the parent company is established in another Member State of the European Union?

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