Opinion of the Advocate General — ECLI:EU:C:2014:340
Date: 2014-05-15
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Third Chamber) 16 October 2014 1. Questions referred for a preliminary ruling — Reference to the Court — Determination of the questions to refer — Exclusive jurisdiction of the national court — Not possible for the parties to change the tenor of the questions (Art. 267 TFEU) 2. Harmonisation of fiscal legislation — Common system of value added tax — Supply of services — Determination of the point of reference for tax purposes — ‘Fixed establishment’ within the meaning of Article 44 of Directive 2006/112 — Concept — Degree of permanence and suitable structure of the establishment in terms of human and technical resources to enable it to receive and use the services supplied — Included (Council Regulation No 282/2011, Recital 4; Council Directives 77/388, Art. 9(1), and 2006/112, as amended by Directive 2008/8, Art. 44) 1. See the text of the decision. (see paras 33, 34) 2. A first taxable person who has established his business in one Member State, and receives services supplied by a second taxable person established in another Member State, must be regarded as having a ‘fixed establishment’ within the meaning of Article 44 of Directive 2006/112 on the common system of value added tax, as amended by Directive 2008/8, in that other Member State, for the purpose of determining the place of taxation of those services, if that establishment is characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to receive the services supplied to it and use them for its business, which is for the referring court to ascertain. As regards the point of reference for tax purposes, the wording of Article 44 of Directive 2006/112 is similar to that of Article 9(1) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes. Furthermore, both Article 44 of Directive 2006/112 and Article 9(1) of the Sixth Directive are provisions determining the point of reference for tax purposes of supplies of services and pursue the same objective, so that the Court’s case-law on the interpretation of Article 9(1) of the Sixth Directive can in principle be applied mutatis mutandis to the interpretation of Article 44 of Directive 2006/112. That conclusion is borne out by Regulation No 282/2011 laying down implementing measures for Directive 2006/112, the objective of which, as stated in recital 4 in its preamble, is to ensure a more uniform application of the value added tax system by laying down rules implementing Directive 2006/112, in particular in respect of taxable persons, the supply of goods and services, and the place of taxable transactions. Furthermore, the most appropriate, and thus the primary, point of reference for determining the place of supply of services for tax purposes is the place where the taxable person has established his business. The fact that a business such as that carried on by a company in one Member State, consisting in operating a system of electronic auctions which comprises, first, making an auction website available to a company in another Member State and, secondly, issuing and selling ‘bids’ to customers in that other Member State, can be carried on without requiring an effective human and material structure in the other Member State is not determinative. Despite its particular character, such a business requires at least a structure that is appropriate in terms especially of human and technical resources, such as appropriate computer equipment, servers and software. It is only if that place of business does not lead to a rational result or creates a conflict with another Member State that another establishment may come into consideration. (see paras 43, 44, 53, 58, 60, 65, operative part)