Opinion of the Advocate General — ECLI:EU:C:2004:19
Date: 2004-01-13
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services by intermediaries – Determination of the place of fiscal connection by Article 28b(E)(3) of the Sixth Directive – Scope – Principal transaction not subject to value added tax – Not relevant – Determination of the place of the principal transaction – Application of the specific provisions of Article 28b(A) and (B) (Council Directive 77/388, Art. 28b(A),(B) and (E)(3)) Article 28b(E)(3) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, which provides, by way of derogation from Article 9(1) of the same directive, that the place of the supply of services rendered by intermediaries acting in the name and for the account of other persons, when such services form part of certain transactions, is to be the place where the transaction is carried out, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax. As follows from its wording, that provision covers generally supplies of services rendered by intermediaries, without distinguishing according to whether or not the recipients of the services are subject to value added tax, and it does not matter, for the purposes of determining the place of an intermediary’s activities, whether the principal transaction is subject to value added tax or whether the transaction is non-taxable. Moreover, when an intermediary transaction falls within the scope of Article 28b(E)(3), it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the specific provisions of Article 28b(A) and (B). The place of an intra-Community acquisition of goods is governed by the latter provision, which derogates from the general provisions of Article 8 of the Sixth Directive regulating the supply of goods within a Member State. (see paras 18, 21, 23, 25-26, operative part 1-2)