Opinion of the Advocate General — ECLI:EU:C:1997:632
Date: 1997-12-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value
added tax — Supply of services — Determination of relevant place for tax purposes — 'Fixed
establishment' within the meaning of the Sixth Directive — Definition — Company hiring
out or leasing vehicles to customers established in another Member State
(Council Directive 77/388, Art. 9(1) and (2)(e))
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SUMMARY — CASE C-390/96
2. Freedom to provide services — Principle of non-discrimination — Tax legislation — Reim­
bursement of value added tax to taxable persons not established in the territory of the country
— National legislation providing for interest payable only from the date of service of notice to
pay on the Member State and at a lower rate than that applied to the interest paid to taxable
persons established in the territory of that State automatically on the expiry of the statutory
time-limit for reimbursement — Not permissible
(EC Treaty, Art. 59; Council Directive 79/1072)
1. The term 'fixed establishment' in Article
9(1) of the Sixth Directive 77/388 on the
harmonisation of the laws of the Member
States relating to turnover taxes must be
interpreted in such a way that an under­
taking established in one Member State
which hires out or leases a number of
vehicles to clients established in another
Member State does not possess a fixed
establishment in that other State merely
by engaging in that hiring out or leasing.
When a leasing company does not possess
in a Member State either its own staff or a
structure which has a sufficient degree of
permanence to provide a framework in
which agreements may be drawn up or
management decisions taken and thus to
enable the services in question to be sup­
plied on an independent basis, it cannot
be regarded as having a fixed establish­
ment in that State.
Moreover, it is clear from both the word­
ing and the aim of Article 9(1) and 9(2)(e)
of the Sixth Directive, and from the case-
law of the Court, that neither the physical
placing of vehicles at customers' disposal
under leasing agreements nor the place at
which they are used can be regarded as a
clear, simple and practical criterion, in
accordance with the spirit of the Sixth
Directive, on which to base the existence
of a fixed establishment.
2. It is contrary to Article 59 of the Treaty
for national rules to provide that taxable
persons not established in a Member
State, who apply for a refund of value
added tax in accordance with the Eighth
Directive 79/1072 on the harmonisation
of the laws of the Member States relating
to turnover taxes, are entitled to interest
only from such time as notice to pay was
served on that Member State and at a
lower rate than that applied to the inter­
est paid to taxable persons established in
the territory of that State automatically
on the expiry of the statutory time-limit
for reimbursement.
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