Opinion of the Court — ECLI:EU:C:2009:739
Date: 2009-11-30
Language of the case: Bulgarian;Czech;Danish;German;Greek;English;Estonian;Finnish;French;Hungarian;Italian;Latvian;Lithuanian;Maltese;Dutch;Polish;Portuguese;Romanian;Slovak;Slovenian;Spanish;Swedish
Court formation: Grand Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy;Approximation of laws
Concepts: Prior opinion of the Court;Respective powers of the Community and of the Member States
Procedure: Request for an Opinion

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 (Council Directive 77/388, Art. 9(2)(e) and (3)(b)) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Refund of the tax to taxable persons not established in the Community (Council Directives 77/388, Art. (9)(3)(b) and 86/560, Art. 2) 1. With regard to advertising services, where the recipient of the services is established outside the European Community, the place of supply is, as a rule, according to Article 9(2)(e) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Tenth Directive 84/386, defined as the place where that recipient has his principal place of business. However, the Member States may exercise the option provided in Article 9(3)(b) of Sixth Directive 77/388, as amended, and define the place where the services in question are supplied, by way of derogation from that rule, as being within the Member State concerned. If that option is exercised, advertising services provided by a supplier established in the European Community to a customer situated in a non‑Member state, whether that customer is the final customer or an intermediate customer, are deemed to be supplied within the European Community, provided that the effective use and enjoyment of the services, within the meaning of Article 9(3)(b) of the Sixth Directive, take place within the Member State concerned. That is the case, with regard to advertising services, where the advertising material being supplied is disseminated from the Member State concerned. However, advertising services provided by a supplier established outside the European Community for his own clients cannot be liable to VAT under Article 9(3)(b) of the Sixth Directive, even where that supplier acted in the capacity of intermediate customer in respect of an earlier supply of services, since such a supply of services does not fall within the scope of Article 9(2)(e) of that directive or, in more general terms, Article 9 of the directive as a whole, those being provisions which are expressly referred to in Article 9(3)(b) of that directive. Whether a tax representative is appointed does not, of itself, have any effect on whether the services received or provided by the represented person are liable to VAT, since the sole purpose of the system of representation is to enable the tax authorities to have an intermediary at national level where the taxable person is established abroad. (see paras 27-29, 33-34, 38, operative part) 2. The fact that the supply of services for the purpose of Article 9(3)(b) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended, is subject to value added tax does not preclude the taxable person’s right to the refund of VAT where he satisfies the conditions laid down in Article 2 of Thirteenth Directive 86/560 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory. (see paras 37-38, operative part)