Opinion of the Advocate General — ECLI:EU:C:2022:281
Date: 2022-04-07
Language of the case: French
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary 71. As is clear from the foregoing, the provisions of Directive 77/388 are fully applicable to transactions carried out in the territory of the condominium, regardless of whether or not an agreement provided for in Article 5 of the 1984 Border Treaty has been concluded. The detailed rules for application of those provisions within the territory of the condominium may be determined by that agreement. However, in the absence of such agreement, EU law does not preclude the unilateral taxation of the transactions in question by one of the Member States concerned. Such unilateral taxation means that the same transactions cannot be taxed by the other Member State concerned. Conclusions 72. In view of all the above considerations, I propose providing the following answer to the question referred by the Cour de cassation (Court of Cassation, Luxembourg): Article 2(1) of Sixth 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: The uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, read together with Article 3(2) thereof, must be interpreted as applying to passenger transport services provided within the territory subject, by virtue of international agreements, to the joint sovereignty of the Grand Duchy of Luxembourg and the Federal Republic of Germany, irrespective of whether those Member States have concluded an agreement on the detailed rules for the application of that provision within that territory. Article 9(2)(b) of Directive 77/388 must be interpreted as meaning that it does not preclude the taxation of those services by the two Member States, either in agreement or unilaterally by one of them. In the latter case, the other Member State loses the power to tax the transactions in question. 1 Original language: Polish. 2 Of 9 June 1815. 3 Approved by the Grand Duchy of Luxembourg pursuant to the loi du 27 mai 1988 portant approbation du traité entre le Grand-Duché de Luxembourg et la République fédérale d’Allemagne sur le tracé de la frontière commune entre les deux États et de l‘échange de lettres, signés à Luxembourg, le 19 décembre 1984 (Law of 27 May 1988 approving the Treaty between the Grand Duchy of Luxembourg and the Federal Republic of Germany on the demarcation of the common border between the two States and the exchange of letters, signed in Luxembourg on 19 December 1984) (Mémorial No A-26 of 7 June 1988, p. 538). 4 Opinion of Advocate General Dutheillet de Lamothe in Muller and Hein (10/71, EU:C:1971:76, pp. 735-736). That case concerned the application of Article 90 of the EEC Treaty (now Article 106 TFEU) in the territory covered by the Treaty of 1816. (see point 1 of this Opinion). 5 See point 1 of this Opinion. 6 OJ 1977 L 145, p. 1. 7 OJ 1991 L 376, p. 1. 8 The intra-Community acquisition of goods is governed by Title XVIa of Directive 77/388. In the proceedings before the national courts, Navitours challenged this classification of the transaction in question since, in its view, due to the special status of the Moselle, the vessel which was the subject to the transaction never entered the tax territory of Luxembourg. That position was not devoid of logic, given the treatment of the condominium territory by the tax authorities. However, it was rejected by the national courts and, at present, the classification of the acquisition of the vessel by Navitours as the ‘intra-Community acquisition of goods’ is not at issue in the main proceedings. 9 Judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641, paragraphs 43 to 59 and point 1 of the operative part). 10 In keeping with what I have proposed, see my Opinion in Joined cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505, points 26 to 43). 11 Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36). 12 As Navitours points out in its reply to that question, if the services it provides are not transport services within the meaning of Article 9(2)(b) of Directive 77/388, they should be classified as ‘entertainment services’ within the meaning of the first indent of Article 9(2)(c) of that directive. Such services, on the other hand, are taxed at the place ‘where those services are physically carried out’, which, according to the company, would again mean the territory of the condominium. However, I am not convinced that, without additional information from the referring court, the Court of Justice would be able to make this classification of the services in question on its own and thereby ‘save’ the reference for a preliminary ruling in the present case. 13 The German Government gave a more nuanced answer, according to which the classification of the services in question as ‘transport services’ was within the jurisdiction of the referring court. 14 See judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 56). 15 The situation is, of course, different if the ship remains moored to the quay and is used for a purpose other than navigation, to sign an international agreement (as was the case with the Schengen Agreement), for example. There is then, in my view, no question of a transport service being involved (see points 24 and 25 of this Opinion). 16 See, to that effect, judgment of 6 November 1997, Reisebüro Binder (C‑116/96, EU:C:1997:520, paragraphs 12 to 14). 17 That principle was expressly confirmed by the Court in its judgment of 6 November 1997, Reisebüro Binder (C‑116/96, EU:C:1997:520, paragraphs 15 and 16). 18 This latter objection excludes from the concept of ‘transport services’ such services as, for example, moving objects by crane. 19 See, to that effect, in relation to the concept of ‘insurance’, the judgment of 8 October 2020, United Biscuits (Pension Trustees) and United Biscuits Pension Investments (C‑235/19, EU:C:2020:801, paragraph 36). 20 Judgment of 15 October 2015, Grupo Itevelesa and Others (C‑168/14, EU:C:2015:685, point 1 of the operative part). 21 Council Regulation of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7). 22 Judgment of 27 March 2014, Alpina River Cruises and Nicko Tours (C‑17/13, EU:C:2014:191). 23 More specifically, Council Regulation (EEC) No 3921/91 of 16 December 1991 laying down the conditions under which non-resident carriers may transport goods or passengers by inland waterway within a Member State (OJ 1991 L 373, p. 1). 24 See, to that effect, Opinion of Advocate General Pikamäe in United Biscuits (Pension Trustees) and United Biscuits Pension Investments (C‑235/19, EU:C:2020:380, point 73) 25 Formerly Article 227 TEC. 26 It will be recalled that a condominium existed even before the conclusion of the 1984 Border Treaty (see point 2 of this Opinion). 27 As far as we know, no such agreement has yet been reached. 28 See, to that effect, most recently, judgment of 21 October 2021, Dubrovin & Tröger – Aquatics (C‑373/19, EU:C:2021:873, paragraph 22). 29 Now Article 52 TEU and Article 355 TFEU. See also Article 77(4) TFEU. 30 Now Article 5(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), which replaced Directive 77/388. 31 That government cites in particular the judgments of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 57 et seq.), and of 27 February 2018, Western Sahara Campaign UK (C‑266/16, EU:C:2018:118, paragraph 47 and the case-law cited). 32 See, in particular, judgment of 20 May 2003, Ravil (C‑469/00, EU:C:2003:295, paragraph 37). The judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158) was also based on that premiss. 33 Pursuant to Article 1 of Directive 77/388, the Member States were required to introduce a common system of VAT no later than 1 January 1978. Although the 1984 Border Treaty is subsequent, there is nothing to suggest that the tax situation in the territory of the condominium was any different before that treaty than it is today. 34 Council Implementing Decision of 27 September 2010 authorising the Federal Republic of Germany and the Grand Duchy of Luxembourg to apply a measure derogating from Article 5 of Directive [2006/112] on the common system of value added tax (OJ 2010 L 256, p. 20). 35 Recitals 4 and 5 of Decision 2010/579. 36 Recital 6 of Decision 2010/579. 37 See footnote 8 to point 10 of this Opinion. 38 See point 10 of this Opinion. 39 See point 11 of this Opinion. 40 Transactions concluded at earlier stages are not the subject of the present case, which is why I will not develop that thread. I will explain only briefly that the first and third situations result in infringement breach of the principle of the taxation of all transactions which fall within the scope of Directive 77/388 and which are not subject to exemption and that the second situation results in a breach of the principle of fiscal neutrality. 41 See judgment of 23 May 1996, Commission v Greece (C‑331/94, EU:C:1996:211). 42 See judgment of 6 November 1997, Reisebüro Binder (C‑116/96, EU:C:1997:520, paragraph 12) and, more recently, judgment of 17 December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph 41). 43 See judgment of 17 December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph 41). 44 Article 50 of Directive 2006/112. 45 Article 48 of Directive 2006/112. 46 However, this is not self-evident, since pursuant to Article 1(2) of the 1984 Border Treaty, the joint territory also includes installations on and above water. 47 Judgment of 23 January 1986 (283/84, EU:C:1986:31). 48 See, in particular, judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International (C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 66 and the case-law cited). 49 See, in particular, judgments of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International (C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 67), as well as of 18 June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph 52). 50 Judgment of 17 December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, point 3 of the operative part). 51 Judgment of 18 June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph 51).