Judgment — ECLI:EU:C:2014:53
Date: 2014-02-06
Language of the case: Romanian
Court formation: Tenth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Tenth Chamber), 6 February 2014 1. 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 the Sixth Directive —Meaning — Taxable person not established in the territory of the country — Meaning — No establishment — Supplies of electricity to taxable dealers (Council Directive 79/1072, and 2006/112, Arts 38, 171 and 195) 2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Principle of fiscal neutrality — Refusal of right to a refund or right to deduct — Not permissible (Council Directive 79/1072 and 2006/112) 3. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Taxable person making supplies of electricity to taxable dealers established in another Member State — Right of that taxable person to repayment of input VAT — Identification of a tax representative — No effect (Council Directive 79/1072 and 2006/112, Arts 38, 171 and 195) 1. In order to be considered an establishment to which the supplies of goods or services by a taxable person are connected, an establishment must possess a sufficient degree of permanence and a structure adequate, in terms of human and technical resources, to carry out the transactions under consideration on an independent basis. Under the second subparagraph of Article 171(1) of Directive 2006/112 on the common system of value added tax, as amended by Directive 2007/75, the taxable persons referred to in Article 1 of the Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes are also, for the purposes of applying that directive, to be regarded as not established in the Member State concerned where they have only carried out in that Member State supplies of goods to a person designated in accordance with Article 195 of Directive 2006/112 as liable for payment of VAT. Article 195 particularly applies to supplies of electricity to taxable dealers identified for VAT purposes in the Member State where the tax is payable and to whom the goods are supplied in the circumstances specified in Article 38 of Directive 2006/112. The identification of a company through the intermediary of a tax representative cannot validly be treated by the national legal order as demonstrating that such a company has in fact carried out supplies of goods or services in that Member State within the meaning of Article 1 of the Eighth Directive. It is patent from the wording of that article and from Article 171 of Directive 2006/112 that, if the right to a refund under the Eighth Directive is to be excluded, there must be a finding not only that there is a mere capacity to carry out taxable transactions in the State where the refund application is submitted, but that such transactions have actually been carried out. (see paras 46, 52, 53) 2. See the text of the judgment. (see para. 55) 3. The provisions of the Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes, read together with Articles 38, 171 and 195 of Directive 2006/112 on the common system of value added tax, as amended by Directive 2007/75, must be interpreted as meaning that a taxable person established in one Member State and who has made supplies of electricity to taxable dealers established in another Member State has the right to rely on the Eighth Directive in the latter State in order to obtain a refund of input VAT. That right is not precluded merely by the designation of a tax representative who is identified for VAT purposes in the latter State. (see para. 57, operative part)