Opinion of the Advocate General — ECLI:EU:C:2005:292
Date: 2005-05-12
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Supply of services — Transactions comprising a number of elements — Transaction to be considered as a single supply — Criteria — Supply of standard software recorded on a carrier and subsequent customisation of that software to the consumer’s specific requirements (Council Directive 77/388, Art. 2(1)) 2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Supply of services — Meaning — Supply of standard software recorded on a carrier and subsequent customisation of that software to the consumer’s specific requirements — Included — Conditions (Council Directive 77/388, Art. 6(1)) 3. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added tax — Supply of services — Determination of the place of taxable supply — Services of advisers, engineers, consultants, lawyers, accountants and other similar services — Meaning — Customisation of computer software to the customer’s specific requirements — Included (Council Directive 77/388, Art. 9(2)(e), third indent) 1. Article 2(1) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that where two or more elements or acts supplied by a taxable person to a customer, being a typical consumer, are so closely linked that they form objectively, from an economic point of view, a whole transaction, which it would be artificial to split, all those elements or acts constitute a single supply for purposes of the application of VAT. This is true of a transaction by which a taxable person supplies to a consumer standard software previously developed, put on the market and recorded on a carrier and subsequently customises that software to that purchaser’s specific requirements, even where separate prices are paid. (see para. 30, operative part 1-2) 2. Article 6(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that a single supply such as the supply of standard software and its subsequent customisation to the specific requirements of the customer is to be classified as a ‘supply of services’ where it is apparent that the customisation is neither minor nor ancillary but, on the contrary, predominates; such is the case in particular where in the light of factors such as its extent, cost or duration the customisation is of decisive importance in enabling the purchaser to use the customised software. (see paras 28-30, operative part 3) 3. Article 9(2)(e), third indent, of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, which determines the place of taxable supply for services of advisers, engineers, consultants, lawyers, accountants and other similar services, including data processing and data supply, must be interpreted as meaning that it applies to a single supply of services such as the supply of standard software and its subsequent customisation to the specific requirements of the customer performed for a taxable person established in the Community but not in the same country as the supplier. That provision does not refer to professions, such as those of lawyers, consultants, accountants or engineers, but to the services supplied by those professionals and similar services. The Community legislature has used the professions mentioned in that provision as a means of defining the categories of services to which it refers. In that regard, computer science, including programming and the development of software, forms a significant part of the training given to future engineers and it may often constitute one of the various specialisations available to them during that training. A service such as the customisation of computer software to the specific requirements of a consumer is therefore likely to be carried out either by engineers or by other persons trained to carry out such tasks. It follows that such a service is covered either by the services carried out by engineers or by those which are similar to the activity of an engineer. (see paras 37-41, operative part 4)