Opinion of the Advocate General — ECLI:EU:C:2016:664
Date: 2016-09-08
Language of the case: Polish
Subject matter: Taxation;Provisions governing the Institutions;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

summary of the impact assessment in the Commission Staff Working Document (SEC(2008) 2191), which does not even deal with the amendment affecting books. 18 See, on the relevance of such an opportunity to comment, judgment of 11 November 1997 in Eurotunnel and Others (C‑408/95, EU:C:1997:532, paragraph 58). 19 See the order for reference, paragraph 3.2.22. 20 See judgments of 29 October 2009 in NCC Construction Danmark (C‑174/08, EU:C:2009:669, paragraph 42), of 19 July 2012 in Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 45), of 15 November 2012 in Zimmermann (C‑174/11, EU:C:2012:716, paragraph 50), of 13 March 2014 in Klinikum Dortmund (C‑366/12, EU:C:2014:143, paragraph 40) and of 2 July 2015 in De Fruytier (C‑334/14, EU:C:2015:437, paragraph 37). 21 Cf. in relation to the various meanings of that principle, judgment of 15 November 2012 in Zimmermann (C‑174/11, EU:C:2012:716, paragraphs 46 to 48) and in addition judgments of 17 May 2001 in Fischer and Brandenstein (Cases C‑322/99 and C‑323/99, EU:C:2001:280, paragraph 76) and of 2 July 2015 in NLB Leasing (C‑209/14, EU:C:2015:440, paragraph 40). 22 Cf. in this regard judgments of 8 June 2006 in L.u.p. (C‑106/05, EU:C:2006:380, paragraph 48), of 10 April 2008 in Marks & Spencer (C‑309/06, EU:C:2008:211, paragraph 49), of 29 October 2009 in NCC Construction Danmark (C‑174/08, EU:C:2009:669, paragraph 41), of 10 June 2010 in CopyGene (C‑262/08, EU:C:2010:328, paragraph 64), of 19 July 2012 in Lietuvos geležinkeliai (C‑250/11, EU:C:2012:496, paragraph 45) and of 28 November 2013 in MDDP (C‑319/12, EU:C:2013:778, paragraph 38). 23 See the order for reference, paragraphs 3.2.30 and 3.2.31. 24 Judgment of 5 March 2015 in Commission v Luxembourg (C‑502/13, EU:C:2015:143, paragraphs 55 and 56). 25 Cf. regarding that content of the rules, judgments of 5 March 2015 in Commission v France (C‑479/13, EU:C:2015:141, paragraphs 17, 40 and 41) and of 5 March 2015 in Commission v Luxembourg (C‑502/13, EU:C:2015:143, paragraphs 26, 47 and 49); see also the guidelines arising from the meetings of the VAT committee, 92nd meeting of 7 and 8 December 2010, document A — taxud.c.1(2011)157667-684, and, on the significance of the guidelines, my Opinion in RR Donnelley Global Turnkey Solutions Poland (C‑155/12, EU:C:2013:57, points 47 to 50). 26 See, inter alia, judgments of 19 October 1977 in Ruckdeschel and Others (Cases 117/76 and 16/77, EU:C:1977:160, paragraph 7), of 12 March 1987 in Raiffeisen Hauptgenossenschaft (215/85, EU:C:1987:127, paragraph 23), of 17 September 1998 in Pontillo (C‑372/96, EU:C:1998:412, paragraph 41), of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 23) and of 4 May 2016 in Pillbox 38 (C‑477/14, EU:C:2016:324, paragraph 35); cf. regarding another approach based on Article 52(1) of the Charter, judgment of 29 April 2015 in Léger (C‑528/13, EU:C:2015:288, paragraphs 50 to 52). 27 Charter of fundamental rights of the European Union of 7 December 2000, in the version adopted in Strasbourg on 12 December 2007 (OJ 2016 C 202, p. 389). 28 Judgments of 16 December 2008 in Société Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 26), of 12 May 2011 in Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290), of 18 July 2013 in Sky Italia (C‑234/12, EU:C:2013:496, paragraph 16), of 26 September 2013 in IBV & Cie (C‑195/12, EU:C:2013:598, paragraph 52) and of 6 November 2014 in Feakins (C‑335/13, EU:C:2014:2343, paragraph 51); cf. also, on the prohibition of discrimination imposed by the fundamental freedoms, inter alia, judgments of 27 November 2008 in Papillon (C‑418/07, EU:C:2008:659, paragraph 27) and of 2 June 2016 in Pensioenfonds Metaal en Techniek (C‑252/14, EU:C:2016:402, paragraph 48). 29 See in this regard, however, inter alia, also judgment of 13 December 1994 in SMW Winzersekt (C‑306/93, EU:C:1994:407, paragraph 31). 30 See in this regard, however, precisely in relation to value added tax, judgment of 13 March 2014 in Jetair und BTWE Travel4you (C‑599/12, EU:C:2014:144, paragraph 55). 31 Judgments of 10 April 2008 in Marks & Spencer (C‑309/06, EU:C:2008:211, paragraph 49) and of 25 April 2013 in Commission v Sweden (C‑480/10, EU:C:2013:263, paragraph 17). 32 Cf. in this regard also the judgments of 29 October 2009 in NCC Construction Danmark (C‑174/08, EU:C:2009:669, paragraph 44) and of 19 July 2012 in Lietuvos geležinkeliai (C‑250/11, EU:C:2012:496, paragraph 45). 33 Judgments of 19 October 1977 in Ruckdeschel and Others (117/76 and 16/77, EU:C:1977:160, paragraph 8), of 19 October 1977 in Moulins et huileries de Pont-à-Mousson und Société cooperativeProvidence agricole de la Champagne (Cases 124/76 and 20/77, EU:C:1977:161, paragraph 18) and of 25 October 1978 in Royal Scholten-Honig and Tunnel Refineries (Cases 103/77 and 145/77, EU:C:1978:186, paragraphs 28 to 32). 34 Doubts may, however, arise in this regard on the basis of the findings of the judgment of 3 July 2012 in UsedSoft (C‑128/11, EU:C:2012:407). 35 Judgment of 3 July 2012 in UsedSoft (C‑128/11, EU:C:2012:407, paragraph 61). 36 Cf. judgments of 5 March 2015 in Commission v France (C‑479/13, EU:C:2015:141, paragraphs 17 and 35) and in Commission v Luxembourg (C‑502/13, EU:C:2015:143, paragraphs 26 and 42). 37 See Article 1.5 of, in conjunction with category 6 of the annex to, Council Directive 92/77/EEC of 19 October 1992 supplementing the common system of value added tax and amending Directive 77/388/EEC (approximation of VAT rates) (OJ 1992 L 316, p. 1). 38 Communication of 5 July 2007 from the Commission to the Council and the European Parliament on VAT rates other than standard VAT rates (COM(2007) 380 final), under 3.1. 39 Communication from the Commission (cited in footnote 38), under 4.2. 40 Cf. also the Opinion of the Committee on the Internal Market and Consumer Protection of 22 January 2009 for the Committee on Economic and Monetary Affairs on the proposal for a Council directive amending Directive 2006/112/EC as regards reduced rates of value added tax (COM(2008) 428) (Document of the European Parliament in plenary sitting of 11 February 2009, A6-0047/2009, p. 6). 41 Judgments of 3 May 2012 in Lebara (C‑520/10, EU:C:2012:264, paragraph 25) and of 7 November 2013 in Tulică and Plavoşin (Cases C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 34). 42 Cf., inter alia, judgments of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 47), of 17 October 2013 in Schaible (C‑101/12, EU:C:2013:661, paragraph 77) and of 22 May 2014 in Glatzel (C‑356/12, EU:C:2014:350, paragraph 43). 43 Judgment of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraphs 57 and 58). 44 Judgment of 6 November 2014 in Feakins (C‑335/13, EU:C:2014:2343, paragraph 56). 45 The prohibitions on discrimination are only specific expressions of the general principle of equal treatment; see, in particular, judgment of 27 January 2005 in Europe Chemi-Con (Deutschland) v Council (C‑422/02 P, EU:C:2005:56, paragraph 33). 46 Cf. also the Opinion of Advocate General Poiares Maduro in Arcelor Atlantique et Lorraineand Others (C‑127/07, EU:C:2008:292, point 32). 47 Cf., to that effect, inter alia, judgments of 12 May 2011 in Luxembourg v Parliament and Council (C‑176/09, EU:C:2011:290, paragraph 35) and of 22 May 2014 in Glatzel (C‑356/12, EU:C:2014:350, paragraph 64). 48 Cf. judgments of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 57) and of 22 May 2014 in Glatzel (C‑356/12, EU:C:2014:350, paragraph 52); see, specifically in relation to the Common Agricultural Policy, inter alia, judgments of 29 October 1980 in Roquette Frères v Council (138/79, EU:C:1980:249, paragraph 25), of 5 October 1994 in Germany v Council (C‑280/93, EU:C:1994:367, paragraphs 89 and 90) and of 30 June 2016 in Lidl (C‑134/15, EU:C:2016:498, paragraph 47); cf. in addition, on the general obligations imposed by the principle of proportionality, inter alia, judgments of 12 November 1996 in United Kingdom v Council (C‑84/94, EU:C:1996:431, paragraph 58), of 1 March 2016 in National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 77) and of 4 May 2016 in Pillbox 38 (C‑477/14, EU:C:2016:324, paragraph 49). 49 Cf., to that effect, judgment of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 59); cf. in particular, in the case of interferences with fundamental rights, judgment of 8 April 2014 in Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 47). 50 Cf. judgments of 5 March 2015 in Commission v France (C‑479/13, EU:C:2015:141, paragraphs 17 and 40) and in Commission v Luxembourg (C‑502/13, EU:C:2015:143, paragraphs 26 and 47). 51 See, in this regard, the non-exhaustive list of electronically supplied services in Annex II referred to in Article 58(1)(c) of the VAT Directive and the supplementary definition in Article 7 and of Annex I to Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (recast) (OJ 2011 L 77, p. 1). 52 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 (OJ 1977 L 145, p. 1) which, in accordance with Article 411(1) and Article 413 of the VAT Directive, was applicable until 31 December 2006. 53 See Article 1(2) of Council Directive 2002/38/EC of 7 May 2002 amending and amending temporarily Directive 77/388/EEC as regards the value added tax arrangements applicable to radio and television broadcasting services and certain electronically supplied services (OJ 2002 L 128, p. 41). 54 Proposal of the Commission of 7 June 2000 for a Council Directive amending Directive 77/388/EEC as regards the value added tax arrangements applicable to certain services supplied by electronic means (COM(2000) 349 final), under 3.1 and 5.2 on Article 1.2. 55 See Article 9(2)(f) of the Sixth Directive and now Article 58(1)(c) of the VAT Directive. 56 Cf. now recital 23 of the VAT Directive. 57 Cf. the proposal of the Commission (cited in footnote 54) under 3.1 and 3.2. 58 Cf. the proposal of the Commission (cited in footnote 54) under 5, at the beginning. 59 Cf. recital 5 of Directive 2002/38; see now Article 358a et seq. of the VAT Directive. 60 This resulted from the general rule in Article 9(1) of the Sixth Directive; cf. the proposal of the Commission (cited in footnote 53) under point 2. 61 The provision was amended with effect from 1 January 2015 by Article 5(1) of Directive 2008/8. 62 See Article 358 to Article 369k of the VAT Directive. 63 Cf. point 61 above. 64 See point 67 above. 65 Cf. judgment of 25 October 1978 in Royal Scholten-Honig and Tunnel Refineries (Cases 103/77 and 145/77, EU:C:1978:186, paragraphs 81, 82 and 83). 66 Cf. judgment of 24 February 2015 in Sopora (C‑512/13, EU:C:2015:108, paragraph 33). 67 Cf. judgments of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 57) and of 17 October 2013 in Schaible (C‑101/12, EU:C:2013:661, paragraph 91). 68 Cf., to that effect, judgment of 16 December 2008 in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 62). 69 See Article 4 and Article 5 of Directive 2002/38 and Article 6 of Directive 2008/8. 70 See Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on an action plan on VAT (COM(2016) 148 final) under point 5. 71 Cf. point 69 above. 72 Cf. in this regard Article 26 of the Charter. 73 Cf., in relation to that requirement, point 37 above. 74 Cf., in relation to that requirement, point 39 above. 75 Cf. points 40 and 42 above. 76 Cf. points 55 and 56 above. 77 Cf. points 56 and 57 above. 78 Cf. point 40 above. 79 Cf. judgment of 11 September 2014 in K (C‑219/13, EU:C:2014:2207, paragraphs 24 to 32). 80 Cf. point 61 above. 81 Cf. point 81 above. 82 Cf. point 95 above. 83 Cf. point 66 et seq. above. 84 Cf. point 81 above.