# C_2009267EN.01002901.xml

| 7.11.2009 | EN | Official Journal of the European Union | C 267/29 |
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7.11.2009

EN

Official Journal of the European Union

C 267/29

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 20 July 2009 — T-Mobile (UK) Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-276/09)

2009/C 267/52

Language of the case: English

Referring court

Referring court

High Court of Justice (Chancery Division) (England and Wales)

Parties to the main proceedings

Parties to the main proceedings

Applicant: T-Mobile (UK) Ltd

Applicant:

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Defendant:

Questions referred

Questions referred

| 1. | What are the characteristics of an exempt service that has ‘the effect of transferring funds and entail[sl changes in the legal and financial situation’?
  In particular:






  (a) | Is the exemption applicable to services which would not otherwise have to be performed by any of the financial institutions which (i) make a debit to one account, (ii) make a corresponding credit to another account, or (iii) perform an intervening task between (i) or (ii)? |
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1.

What are the characteristics of an exempt service that has ‘the effect of transferring funds and entail[sl changes in the legal and financial situation’?

In particular:

(a)

Is the exemption applicable to services which would not otherwise have to be performed by any of the financial institutions which (i) make a debit to one account, (ii) make a corresponding credit to another account, or (iii) perform an intervening task between (i) or (ii)?

| (b) | Is the exemption applicable to services which do not include the carrying out of tasks of making a debit to one account and a corresponding credit to another account, but which may, where a transfer of funds results, be seen in retrospect as having been the cause of that transfer? |
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(b)

Is the exemption applicable to services which do not include the carrying out of tasks of making a debit to one account and a corresponding credit to another account, but which may, where a transfer of funds results, be seen in retrospect as having been the cause of that transfer?

| 2. | Does the exemption in Article 13B(d)(3) of the Sixth Directive (1) for ‘transactions concerning payments [or] transfers’ apply to a service of obtaining and processing payments by credit and debit cards, such as those performed by the taxpayer in the present case? In particular, where the transmission of settlement files at the end of each day by the taxpayer has the effect of automatically causing the customer's account to be debited and the taxpayer's account to be credited, will those services fall within the scope of Article 13B(d)(3)? |
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2.

Does the exemption in Article 13B(d)(3) of the Sixth Directive (1) for ‘transactions concerning payments [or] transfers’ apply to a service of obtaining and processing payments by credit and debit cards, such as those performed by the taxpayer in the present case? In particular, where the transmission of settlement files at the end of each day by the taxpayer has the effect of automatically causing the customer's account to be debited and the taxpayer's account to be credited, will those services fall within the scope of Article 13B(d)(3)?

1

| 3. | Does the answer to Question 2 depend on whether the taxpayer itself obtains authorisation codes for onward transmission or obtains those codes through the agency of its acquiring bank? |
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3.

Does the answer to Question 2 depend on whether the taxpayer itself obtains authorisation codes for onward transmission or obtains those codes through the agency of its acquiring bank?

| 4. | Does the exemption in Article 13B(d)(l) of the Sixth Directive for ‘the negotiation of credit’ apply to services such as those offered by the taxpayer in the present case in relation to credit card payments, whereby as a result of those services the customer's credit card account is debited with further amounts of credit? |
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4.

Does the exemption in Article 13B(d)(l) of the Sixth Directive for ‘the negotiation of credit’ apply to services such as those offered by the taxpayer in the present case in relation to credit card payments, whereby as a result of those services the customer's credit card account is debited with further amounts of credit?

| 5. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of accepting and processing payments made using third party agents, such as those offered by the taxpayer through the Post Office and PayPoint in the present case? |
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5.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of accepting and processing payments made using third party agents, such as those offered by the taxpayer through the Post Office and PayPoint in the present case?

| 6. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of obtaining and processing payments made by cheque sent to the taxpayer or his agent, which payments have to be processed by the taxpayer and its bank? |
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6.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of obtaining and processing payments made by cheque sent to the taxpayer or his agent, which payments have to be processed by the taxpayer and its bank?

| 7. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services, such as those offered by the taxpayer in the present case, of receiving and processing payments made over the counter at a bank for credit, through the banking system, to the taxpayer's bank account? |
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7.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services, such as those offered by the taxpayer in the present case, of receiving and processing payments made over the counter at a bank for credit, through the banking system, to the taxpayer's bank account?

| 8. | What particular factors have to be taken into account when deciding whether a charge (such as the payment handling charge in the present case) that is applied by a taxpayer to its customer in respect of the customer's choice to make payment to the taxpayer using a particular payment method, and which is individually identified in the contractual document and separately itemised in invoices issued to customers, is a separate supply for VAT purposes? |
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8.

What particular factors have to be taken into account when deciding whether a charge (such as the payment handling charge in the present case) that is applied by a taxpayer to its customer in respect of the customer's choice to make payment to the taxpayer using a particular payment method, and which is individually identified in the contractual document and separately itemised in invoices issued to customers, is a separate supply for VAT purposes?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment

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OJ L 145, p. 1

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