Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 22 May 2025 (1)
Case C‑234/24
Brose Prievidza, spol. s r. o.
v
Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ – Sofia
(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))
( Reference for a preliminary ruling – Common system of value added tax – Directive 2006/112/EC – Refunding of input tax to taxable persons established abroad pursuant to Directive 2008/9/EC – ‘Tooling’ – Taxable or non-taxable supply of a tool which remains on site – Independent transaction or supply ancillary to an exempt intra-Community supply of the components manufactured by that tool – Independent transactions or a single, complex intra-Community supply – Artificial splitting of the transactions – Single intra-Community supply without transportation of that tool? )
I.      Introduction
1.        In this request for a preliminary ruling, the Court must consider the VAT assessment of what is known as ‘tooling’. This is a common practice, in particular with suppliers in the automobile sector. An order is placed with a subcontractor for the manufacture of certain parts. Those parts can only be manufactured using specific tools (sometimes also using only certain production facilities). Those tools are also ordered from the subcontractor, but remain the property of the ordering party and are used only on site (in this case, in Bulgaria) by the subcontractor to make the parts.
2.        If the parts thus manufactured are supplied to an ordering party in another Member State, they constitute exempt intra-Community supplies in that regard. However, if the tools are subsequently sold to a third party abroad (that is to say, ownership is transferred to a third party) without changing their location (in this case, Bulgaria), the question arises as to whether the sale of that tool is taxable. Is it to be regarded as a taxable supply or does the supply of the tool receive the same tax treatment as the parts produced using it and supplied under an (intra-Community) exemption?
3.        This is relevant for the purchaser of the tool, established abroad, who would like to obtain from Bulgaria a refund of the Bulgarian VAT paid to the vendor as deductible input tax. The Bulgarian tax authorities wish to refuse to do so on the ground that the supply of the tools is also an exempt intra-Community supply. However, there is no right of deduction in respect of exempt transactions.
4.        In that regard, these proceedings raise questions relating respectively to the determination of principal and ancillary supply or a single, complex supply in the context of an exempt intra-Community supply. These questions have never been answered by the Court and are likely to be of considerable practical significance.
A.      European Union law
–       Directive 2006/112/EC on the common system of value added tax (2) (‘the VAT Directive’)
5.        The taxation of intra-Community movements of goods (supplies) under VAT law takes place in two stages. It is done, first, through an exemption of the supply in the country of origin and, second, through taxation of the intra-Community acquisition in the country of destination.
6.        The basic requirement for a supply is laid down in Article 14(1) of that directive:
‘“Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.’
7.        Intra-Community acquisition is governed by Article 20 of the VAT Directive. Paragraph 1 of that article states:
‘“Intra-Community acquisition of goods” shall mean the acquisition of the right to dispose as owner of movable tangible property dispatched or transported to the person acquiring the goods, by or on behalf of the vendor or the person acquiring the goods, in a Member State other than that in which dispatch or transport of the goods began.’
8.        The exemption of intra-Community supplies is contained, inter alia, in Article 138(1) of the VAT Directive. It states:
‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, where the following conditions are met:
(a)      the goods are supplied to another taxable person, or to a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods begins;
(b)      the taxable person or non-taxable legal person for whom the supply is made is identified for VAT purposes in a Member State other than that in which the dispatch or transport of the goods begins and has indicated this VAT identification number to the supplier.’
9.        Article 171(1) of the VAT Directive sets out the procedure for providing refunds to taxable persons established abroad who do not carry out domestic transactions:
‘VAT shall be refunded to taxable persons who are not established in the Member State in which they purchase goods and services or import goods subject to VAT but who are established in another Member State, in accordance with the detailed rules laid down in Directive 2008/9/EC.’
–       Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (3) (‘the Refund Directive’)
10.      More detailed rules on the refund procedure are contained in the Refund Directive. In so far as is relevant here, however, Article 4 of that directive expressly precludes the refund of VAT in certain cases:
‘This Directive shall not apply to:
(a)      amounts of VAT which, according to the legislation of the Member State of refund, have been incorrectly invoiced;
(b)      amounts of VAT which have been invoiced in respect of supplies of goods the supply of which is, or may be, exempt under Article 138 or Article 146(1)(b) of Directive 2006/112/EC.’
B.      Bulgarian law
11.      The VAT Directive was transposed by the Zakon za danak varhu dobavenata stoynost (Law on value added tax; ‘the ZDDS’), in force since 1 January 2007.
12.      The Refund Directive was transposed by Naredba No N-9 of 16 December 2009 on the refund of value added tax under Directive 2006/112/EC to taxable persons established not in the Member State of refund but in another Member State of the European Union (‘Regulation No N-9’).
II.    The facts
13.      Brose Prievidza, spol. s r. o. (‘Brose SK’) is a company founded, registered for VAT purposes and established in Slovakia. It manufactures window regulators, door systems and power liftgates for vehicles. For the purposes of its activity, it purchases from ‘Integrated Micro-Electronics Bulgaria’ EOOD (‘IME Bulgaria’), a company based in Botevgrad (Bulgaria), components which are the subject of intra-Community supplies.
14.      Brose Coburg, a company registered in Germany, has a corporate link with Brose SK and is registered for VAT purposes in both Germany and Bulgaria. Brose Coburg (‘Brose DE’) placed an order with IME Bulgaria for the production of special tools to manufacture the components to be supplied to Brose SK.
15.      After fulfilling the order, IME Bulgaria issued invoice No 4921038649 to Brose DE, dated 14 May 2020, for the net amount of EUR 62 000, plus Bulgarian value added tax, indicating the Bulgarian VAT number of the recipient (Brose DE). The special tools became the property of Brose DE but remained on the premises of the supplier, IME Bulgaria, which uses them only to manufacture products for Brose SK.
16.      On 7 June 2021, Brose DE transferred the special tools to Brose SK and issued disputed invoice No 703047 for the sale of tooling – ‘spindle set as per Annex S-T 08-P-9965 – automatic workpiece clamping in welding system’ in the net amount of EUR 62 000, plus Bulgarian VAT.
17.      On 10 March 2022, Brose SK applied for a refund of the Bulgarian VAT shown on the invoice and paid for the period from 1 January to 31 December 2021. The application made by Brose SK was rejected by notice on the ground that the supply of the special tools and the components constituted an economically indivisible supply in which the special tools lost their economic significance once the components had been manufactured. Since Brose SK received the components manufactured by IME Bulgaria as intra-Community supplies, the supplying of the special tools also had to be treated as such. In that regard, Brose DE was considered to be neither the recipient nor the actual user of the special tools manufactured. Brose DE was held to be only a formal owner as IME Bulgaria used the special tools to manufacture the end products and exercised control and oversight over them.
18.      Brose SK unsuccessfully appealed against that notice. The court of first instance dismissed the action on the grounds that, although the applicant fulfilled the conditions for the refund of the VAT declared in accordance with Directive 2008/9 and Article 1(2) of Regulation No N-9, those provisions did not apply to amounts constituting unlawfully indicated VAT. If the supply of the components was an intra-Community supply, that was also true of the supply of the invoiced special tools. Therefore, no VAT could be entered on the invoice for the supply of the special tools. Consequently, Brose SK was not entitled to a refund of the VAT paid.
19.      Brose SK brought an appeal on a point of law against that notice before the referring court. The referring court considers that the court of first instance was correct in its factual finding that there was an artificial splitting of the supplies of components for Brose SK’s activities from the supplies of specialised tools. However, in the view of the referring court, it has been neither alleged nor demonstrated that the sole purpose of splitting the supplies is to obtain a tax benefit for Brose SK, nor is it evident what the nature of any such benefit would be.
III. Request for a preliminary ruling
20.      The Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) stayed the proceedings and referred the following question to the Court of Justice:
‘Does Directive 2008/9 confer a right to obtain a refund of value added tax paid which is claimed by the recipient of a supply of devices (tooling) where the subject of the supply has not left the territory of the supplier’s Member State and the supply of the tooling has been artificially split from the intra-Community supply, to the same recipient, of goods manufactured by means of those devices?’
21.      In the proceedings before the Court of Justice, only the European Commission submitted written observations in addition to those submitted by Brose SK
and the Bulgarian tax authorities. In accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, the Court did not consider it necessary to hold a hearing.
IV.    Legal assessment
A.      The course of the investigation
22.      This request for a preliminary ruling shows once again that, despite a harmonised VAT system, each tax authority interprets both the directive and the rulings of the Court of Justice differently and that there is therefore a risk of the same situations being treated differently under VAT law within the European Union.
23.      In Wilo Salmson France, (4) which concerned a comparable tooling case in Romania, it was – as rightly emphasised by the Commission and Brose SK – common ground that the supply of the tools, which were used in Romania for the production of components and remained there, was a normal domestic supply (in Romania). The input VAT deduction in that case was only problematic due to the lack of an invoice. In Bulgaria, by contrast, the input VAT deduction cannot take place because the supply of the tools is not a ‘normal’ supply, but also an exempt intra-Community supply.
24.      The referring court’s question basically concerns the relationship between the principal and ancillary supplies and the existence of a single, complex supply in connection with exempt intra-Community supplies. In order to answer this question, I will first clarify whether there can be an intra-Community supply of the specialised tool if that tool has never left Bulgaria (see C. below). If that is not the case, it is necessary to examine whether there can be a dependent ancillary supply (supply of the special tool) which receives the same tax treatment as the principal supply (supply of the parts) where the ‘ancillary supply’ and the ‘principal supply’ are carried out by two different persons (see D. below). If that is possible and the supply of the special tool is an ancillary supply, it must be examined whether that supply can receive the same tax treatment as the exempt intra-Community supply (in this case the supply of the parts) without itself fulfilling the main requirement (transportation to another Member State) (see E. below).
25.      Before that, however, I will examine the background to the question referred because the referring court assumes that the sale of the special tool from Brose DE to Brose SK is an artificial arrangement, without, however, being able to identify any tax advantage (see B. below).
B.      The background to the question referred: The assumption that there has been an artificial splitting of a transaction
26.      It is unclear whether it is assumed in Bulgaria that the special tools were supplied exempt from tax from Brose DE to Brose SK or whether an exempt supply of the special tools from IME Bulgaria to Brose SK is assumed. This is probably bound up with the fact that the referring court assumes that there has been an artificial splitting of the transactions (supplies of the components and the tool).
27.      I am not convinced by this – in line with the view taken by the Commission and Brose SK. In any event, a supply from Brose DE to Brose SK is not impossible by virtue of the fact that the special tools were used continually in Bulgaria by IME Bulgaria to produce the components. On the contrary, the transfer of ownership of goods – as occurred in this case between Brose DE and Brose SK – is a classic case of a supply under Article 14(1) of the VAT Directive. (5)
28.      It is true that a supply covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he or she were its owner. (6) A supply of goods is not precluded in the absence of a transfer of ownership under civil law. (7) This is because even if the recipient of a supply does not dispose of the supplied goods ‘like an owner’, he can at least deal with it ‘qua owner’. (8) This is made clear in certain language versions of the VAT Directive at least. (9)
29.      Rather, the decisive factor is that the right of disposal
has been transferred. In that regard, the right to dispose of the goods is assigned to the person who (positively) can dispose of the substance of goods and (negatively) also bears the risk of accidental destruction of those goods. That person was evidently Brose DE in this case since, as far as can be seen, it alone was able to profit from the economic substance of the special tools through a sale and subsequent transfer of ownership. It is not clear from the file that IME Bulgaria was to bear the risk of accidental destruction of the tools, for example, due to flooding of its premises. Consequently, the transfer of ownership of the special tools from Brose DE to Brose SK for consideration also constitutes a supply between them.
30.      Nor is there anything to indicate that another person (in particular not IME Bulgaria) had gained the right to dispose of the tools. The mere transfer of possession of items and the authorisation to use those items for the production of components is not sufficient for that purpose. This is clearly illustrated by the example of a tenant. The tenant likewise does not acquire any right to dispose of the rented property. Rather, that control remains with the owner, who ‘disposes’ of the substance precisely by letting it.
31.      The transfer of ownership from Brose DE to Brose SK also appears to have taken place effectively. There is nothing to indicate an artificial arrangement. In so far as the referring court and the Bulgarian tax authorities refer to the decision of the Court of Justice in Part Service (10) in respect of that conclusion, they do so on the basis of an obvious misunderstanding. That case concerned the splitting of what was actually a single (taxable) transaction into a taxable leasing and an exempt insurance service provided by two companies in a group to a single recipient. Therefore, the present case is not remotely comparable. (11)
32.      The recipient of the two supplies in this case is Brose SK. First, there are no corporate relationships between the two suppliers (Brose DE and IME Bulgaria) in that respect. Second, no part of the supply is intended to be artificially exempt from tax; on the contrary, Brose DE supplied the special tools subject to tax (and apparently also paid the Bulgarian VAT correctly). None of the guidance which the Court gave to the national court in the abovementioned decision, in order to make it possible to assess whether there are two transactions by two companies in a group or only one transaction by one company in a group, is relevant here. It therefore cannot be understood why the sale of special tools from one company in a group to another company in a group should be ‘economically illogical’ simply because the special tools remain on the premises of the supplier of the parts in Bulgaria – as the referring court expressly states in the reference.
33.      If I understand the sense and purpose of ‘tooling’ correctly, the primary aim is to find another local subcontractor under comparable conditions in the event of the insolvency of the originally designated subcontractor, which can quickly resume production of the components using the special tool in order to avoid interruptions in the (sometimes global) supply chains. The ownership of the ordering party (or another company in the group of the ordering party) prevents creditors of the insolvent subcontractor from being able to seize the special tool. They appear to me to be valid economic reasons.
34.      Which balance sheet of which company in a group records the special tools seems to me to be more of an internal group issue, the economic logic of which cannot be assessed on the basis of the available facts. It is also not relevant for the purposes of the VAT assessment, provided that the right of disposal
has actually been transferred from Brose DE to Brose SK. However, there are no discernible doubts in that regard, also according to the description by the referring court.
C.      Exempt intra-Community supply without the special tool having left the Member State (Bulgaria)?
35.      It must therefore be clarified, first of all, whether the sale of the special tool constitutes an exempt intra-Community supply. The conditions for the existence of an exempt intra-Community supply are laid down in Article 138 of the VAT Directive.
36.      However, that tax exemption applies only if the goods supplied (in this case, the special tool) have been ‘dispatched or transported’ by the vendor (in this case, Brose DE), the purchaser (in this case, Brose SK) or a third party on their behalf (usually a forwarding agent). According to settled case-law of the Court, the exemption of the supply of goods within the meaning of that article therefore becomes applicable only if, as a result of that dispatch or transport, they have physically left the territory of the Member State of supply. (12) According to the request for a preliminary ruling, however, the special tool is still located in Bulgaria. In this respect, it seems strange to speak of an intra-Community supply.
37.      This impression is reinforced if account is taken of the spirit and purpose of Article 138 of the VAT Directive. The tax exemption laid down therein was intentionally not included in Chapters 2 and 3 of Title IX of the VAT Directive. What is at issue here is not favourable treatment of the recipient of a supply, as is the case, for example, with the tax exemptions under Article 132 of the VAT Directive. Nor is this tax exemption an advantage for the supplier.
38.      Rather, this exemption serves solely to implement the destination principle in respect of supplies between taxable persons within the European Union, in which the supply in the country of origin (where the transport begins) is exempt (taxable transaction of the supplier), but taxed in the country of destination (taxable transaction of the purchaser). This is because Article 2(1)(b) of the VAT Directive makes it clear that intra-Community acquisitions are also taxable transactions. Intra-Community acquisition is governed by Article 20 of the VAT Directive and taxes the purchaser of goods as part of a supply in the country of destination.
39.      In the end, this is just a different method of taxation which ultimately moves the place of supply from the country of origin to the country of destination and is accompanied by a transfer of the tax liability to the customer in the country of destination.
40.      If the intra-Community acquisition under Article 20 of the VAT Directive also requires that the goods be ‘dispatched or transported’ to the purchaser (in this case, Brose SK), no intra-Community supply can be assumed in the present case. Consequently, no tax exemption under Article 138 of the VAT Directive applies.
D.      The existence of an ancillary supply or single, complex supply where two taxable persons are involved as suppliers
1.      Uniform approach to the two supplies
41.      A different conclusion would only be conceivable if the supply of the components by IME Bulgaria and the supply of the special tool as a whole by Brose DE could be regarded as a single intra-Community supply made to Brose SK. However, this approach too does not appear to be an obvious one.
42.      First, the Court has held in settled case-law that, for VAT purposes, every supply must normally be regarded as distinct and independent. (13) This follows from the second subparagraph of Article 1(2) and Article 2 of the VAT Directive. (14) This holds even where there are certain links between multiple supplies because they pursue a single economic aim. (15)
43.      There is no single economic aim in this case. No such aim is evident in the case of supplies by two different suppliers (IME Bulgaria and Brose DE) in relation to two different sets of goods (the components manufactured in Bulgaria and the special tool remaining there), which also took place independently of each other.
44.      Second, the abovementioned principle relating to the independence of each transaction is infringed only in cases of dependent ancillary services or a single, complex service. (16) Even though the Court has somewhat confused those two situations in a more recent judgment, (17) they remain two different situations, neither of which exists in this case.
45.      A supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied. (18) Since Brose DE and IME Bulgaria are independent taxable persons, it is hardly possible to identify a principal supply in this case. This is because – contrary to the view expressed by Bulgaria in its observations – those supplies each have their own original character and none of the supplies is subordinate to the other in terms of its purpose. None of those supplies is, in relation to the others, a dependent ancillary supply.
46.      Nor is there a single, complex supply. In this case, multiple elements form one sui generis supply. That is so where the supply provided by the taxable person consists of two or more elements or acts which are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to consider separately. (19) The Court determines whether that is the case by ascertaining the essential features (20) or characteristic elements of the transaction (21) from the perspective of the ‘typical consumer’. (22) (23)
47.      No indivisibility of the elements of the supply is evident in this case. From the perspective of an average consumer, the separate treatment of the supply of the manufactured components by one taxable person and the supply of the special tool by another taxable person is not artificial. On the contrary, separate treatment is obvious because the two supplies are made by different taxable persons.
2.      Single supply with several (different) suppliers?
48.      If two supplies have a certain substantive proximity to each other, but are provided by two different taxable persons, that can only be treated as a single supply in exceptional cases, namely if the division of a supply into two independent parts was artificial. (24)
49.      Consequently, both the existence of a dependent ancillary service and the existence of a single, complex service are ruled out in principle if different suppliers are involved. The conclusion may be different only if the actual supplier artificially divides a transaction between two taxable persons controlled by it. That is ruled out in this case, as explained in paragraph 26 et seq. above. Accordingly, the Court has always held that the taxable person (that is to say, one taxable person) provides several supplies, (25) which are to be treated either separately or in combination.
50.      The protection of fundamental rights also supports this conclusion. A taxable person who is compulsorily involved in tax collection (26) can hardly have his price calculation demolished retrospectively and unilaterally by a third party. That would be so, for example, in the case of a small enterprise which is granted a tax exemption for its transactions in Article 287 of the VAT Directive for reasons of procedural simplification. (27) It would lose that exemption, without having any influence on it, simply because its supplies have a substantive link to supplies by another taxable person, which the recipient has also received.
51.      In so far as the Court ultimately extended, in Horizon College, (28) a tax exemption (now contained in Article 132(1)(i) of the VAT Directive) to a third party (a subcontractor), that only concerned services and supplies ‘closely related’ to an exempt transaction. However, that is a different situation from the principal and ancillary supply or the single, complex supply. (29) Article 138 of the VAT Directive precisely does not refer to closely related services and supplies.
3.      Interim conclusion
52.      Since, in this case, the provider of the supply relating to the special tool (Brose DE) and the provider of the intra-Community supplies relating to the manufactured parts (IME Bulgaria) are two independent taxable persons, the VAT assessment of the respective supply cannot be influenced by the other supply. A dependent ancillary supply is ruled out, as is a single, complex supply as well. It remains the case, therefore, that each transaction must be considered in isolation. The supply of the special tool therefore remains a ‘normal’ supply, of which the place of supply was in Bulgaria in accordance with Article 31 of the VAT Directive and in respect of which no tax exemption is apparent.
E.      In the alternative: Supply which completes an intra-Community supply but does not leave the Member State
53.      If the Court nevertheless holds that the supply of the special tool must be regarded as a dependent supply ancillary to the supply of the components manufactured using it, further – and no less interesting – questions would have to be answered.
54.      As explained above (point 37 et seq.), the exemption of an intra-Community supply primarily serves to implement the destination principle and is closely linked to the taxation of the purchaser, who has to pay tax on the intra-Community acquisition as a transaction in the country of destination. Under these conditions, it is obvious that a supply which is to constitute an ancillary supply dependent on an intra-Community supply must at least also have left the country of origin and arrived in the country of destination.
55.      An intra-Community supply without an intra-Community acquisition cannot actually exist in systematic terms. They are two sides of the same coin. (30) Should Brose SK actually pay tax on an intra-Community acquisition of the special tools in Slovakia, even though they are still located in Bulgaria? If the special tool is later sold to the Bulgarian supplier (IME Bulgaria), does that constitute an intra-Community supply because the goods were taxed as an intra-Community acquisition in Slovakia? Would the sale to a Slovakian taxable person, to whom the special tools are then transported, be a purely domestic supply (in Slovakia), even though the goods are transported from Bulgaria to Slovakia?
56.      These questions alone are liable to cause confusion and this holds a fortiori for the conceivable answers. However, the spirit and purpose of the tax exemption do not apply if the ‘ancillary service’ remained in the country of origin. For this reason, I take the view that the main condition for claiming the special tax exemption laid down in Article 138 of the VAT Directive (transport to another Member State) must also be met in respect of the dependent ancillary service (if it is also a supply) in order for the taxation to shift to the country of destination and the purchaser to become liable for tax there.
57.      Since (as set out in point 35 et seq. above) the special tool is still in Bulgaria and an exempt intra-Community supply is ruled out due to the lack of transport or dispatch, a tax exemption is not possible even if it were to be accepted that a dependent ancillary supply exists in this case. The supply of goods in connection with an intra-Community supply can complete or supplement that exempt transaction only if the goods in question are also transported to the country of destination of the principal supply.
V.      Conclusion
58.      I therefore propose that the question referred by the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) be answered as follows:
Where the recipient of components, supplied as an exempt intra-Community supply, which are manufactured by a subcontractor using a special tool located in Bulgaria, purchases that special tool from the owner (a third party established abroad) and continues to use it to manufacture the components in Bulgaria, there is a taxable supply in Bulgaria. The transfer of the right to dispose of the special tool does not itself constitute an exempt intra-Community supply and it is not to be regarded as a supply dependent on the exempt intra-Community supply of the subcontractor’s manufactured components or as part of an exempt single, complex intra-Community supply. Therefore, Article 4 of Directive 2008/9 does not exclude a right to obtain a refund of the VAT paid.
1      Original language: German.
2      Council Directive of 28 November 2006 (OJ 2006 L 347, p. 1) in the version applicable to the year at issue (2021), as most recently amended in that respect by Council Directive (EU) 2020/2020 of 7 December 2020 (OJ 2020 L 419, p. 1) and Council Directive (EU) 2021/1159 of 13 July 2021 (OJ 2021 L 250, p. 1).
3      Council Directive of 12 February 2008 (OJ 2008 L 44, p. 23), as most recently amended by Council Directive 2010/66/EU of 14 October 2010 (OJ 2010 L 275, p. 1).
4      Judgment of 21 October 2021 (C‑80/20, EU:C:2021:870, paragraph 34 et seq.).
5      See, in particular, judgment of 19 December 2018, AREX CZ (C‑414/17, EU:C:2018:1027, paragraph 78).
6      Judgments of 17 October 2024, Digital Charging Solutions (C‑60/23, EU:C:2024:896, paragraph 21); of 2 July 2015, NLB Leasing (C‑209/14, EU:C:2015:440, paragraph 29); of 18 July 2013, Evita-K (C‑78/12, EU:C:2013:486, paragraph 33); of 3 June 2010, De Fruytier (C‑237/09, EU:C:2010:316, paragraph 24); of 14 July 2005, British American Tobacco and Newman Shipping (C‑435/03, EU:C:2005:464, paragraph 35); and of 8 February 1990, Shipping and Forwarding Enterprise Safe (C‑320/88, EU:C:1990:61, paragraph 7).
7      Judgments of 17 October 2024, Digital Charging Solutions (C‑60/23, EU:C:2024:896, paragraph 26 and the case-law cited), and of 8 February 1990, Shipping and Forwarding Enterprise Safe (C‑320/88, EU:C:1990:61, paragraph 9).
8      See, in particular, my Opinion in Herst (C‑401/18, EU:C:2019:834, point 34).
9      Thus, according to the German and French language versions, ‘wie ein Eigentümer’ and ‘comme un propriétaire’ respectively, whereas in the English language versions ‘as owner’. See my Opinion in Herst (C‑401/18, EU:C:2019:834, point 34 in footnote 16).
10      Judgment of 21 February 2008 (C‑425/06, EU:C:2008:108, paragraphs 56 and 57).
11      This also explains why the referring court was unable to find any tax advantage as a result of the ‘artificial arrangement’.
12      Judgments of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 30), and of 16 December 2010, Euro Tyre Holding (C‑430/09, EU:C:2010:786, paragraph 29 and the case-law cited).
13      Judgments of 17 October 2024, Digital Charging Solutions (C‑60/23, EU:C:2024:896, paragraph 47); of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); and of 10 March 2011, Bog and Others (C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53).
14      See my Opinion in Frenetikexito (C‑581/19, EU:C:2020:855, point 16 and the case-law cited).
15      See my Opinion in Frenetikexito (C‑581/19, EU:C:2020:855, point 18); see judgment of 4 September 2019, KPC Herning (C‑71/18, EU:C:2019:660, paragraph 44), and also, to that effect, judgment of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 42).
16      As the Court quite rightly found again in its judgment of 17 October 2024, Digital Charging Solutions (C‑60/23, EU:C:2024:896, paragraphs 47 and 48), and previously in its judgment of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraphs 21 and 22).
17      See judgment of 4 May 2023, Finanzamt X (Permanently installed equipment and machinery) (C‑516/21, EU:C:2023:372, paragraph 39 – ‘where that letting constitutes a supply ancillary to a principal supply of leasing of a building …
and (emphasis added) those supplies form a single economic supply’).
On closer inspection, that ruling can only be used as an answer to a limited extent. The fact that a transaction constitutes both a single supply and a supply ancillary to a principal supply was and is logically ruled out in VAT law (and in fact also previously in the case-law of the Court – see, in particular, judgments of 17 October 2024, Digital Charging Solutions (C‑60/23, EU:C:2024:896, paragraphs 47 and 48, and of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraphs 21 and 22). It is likely that the Court intended ‘or’ instead of ‘and’.
18      See my Opinion in Frenetikexito (C‑581/19, EU:C:2020:855, point 34) and judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 23); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 71); of 21 February 2008, Part Service (C‑425/06, EU:C:2008:108, paragraph 52); of 15 May 2001, Primback (C‑34/99, EU:C:2001:271, paragraph 45); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 30).
19      Judgments of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 23); of 19 December 2018, Mailat (C‑17/18, EU:C:2018:1038, paragraph 33); of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 22); of 10 November 2016, Baštová (C‑432/15, EU:C:2016:855, paragraph 70); and of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 23).
20      Judgments of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 22), and of 27 October 2005, Levob Verzekeringen und OV Bank (C‑41/04, EU:C:2005:649, paragraph 20).
21      Judgments of 18 January 2018, Stadion Amsterdam (C‑463/16, EU:C:2018:22, paragraph 30); of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 18); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 29). However, the judgments always use the same term in the original (that is to say, in the French language version): ‘éléments caractéristiques’.
22      Judgments of 19 July 2012, Deutsche Bank (C‑44/11, EU:C:2012:484, paragraph 21); of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 26); and of 25 February 1999, CPP (C‑349/96, EU:C:1999:93, paragraph 29).
23      See also, in that regard, my Opinion in Frenetikexito (C‑581/19, EU:C:2020:855, point 22).
24      The judgment in Part Service concerns such a situation: judgment of 21 February 2008, Part Service (C‑425/06, EU:C:2008:108, paragraphs 56 and 57).
25      Judgments of 27 September 2012, Field Fisher Waterhouse (C‑392/11, EU:C:2012:597, paragraph 16); of 11 June 2009, RLRE Tellmer Property (C‑572/07, EU:C:2009:365, paragraph 19); and of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraph 20).
26      The Court has consistently in its case-law referred to a tax collector on behalf of the State: judgments of 11 November 2021, ELVOSPOL (C‑398/20, EU:C:2021:911, paragraph 31); of 15 October 2020, E. (VAT – Reduction of the taxable amount) (C‑335/19, EU:C:2020:829, paragraph 31); of 8 May 2019, A-PACK CZ (C‑127/18, EU:C:2019:377, paragraph 22); of 23 November 2017, Di Maura (C‑246/16, EU:C:2017:887, paragraph 23); of 13 March 2008, Securenta (C‑437/06, EU:C:2008:166, paragraph 25); and of 1 April 2004, Bockemühl (C‑90/02, EU:C:2004:206, paragraph 39).
27      See my Opinion in UP CAFFE (C‑171/23, EU:C:2024:417, point 52 et seq.).
28      Judgment of 14 June 2007 (C‑434/05, EU:C:2007:343, paragraph 46).
29      See in that regard, in detail, my Opinion in Frenetikexito (C‑581/19, EU:C:2020:855, point 44 et seq.).
30      See also, to that effect, judgment of 26 July 2017, Toridas (C‑386/16, EU:C:2017:599, paragraph 31 et seq.).