OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 29 June 2017 ( 1 )

Case C‑303/16

Solar Electric Martinique SARL

v

Ministre des Finances et des Comptes publics

(Request for a preliminary ruling submitted by the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling — Jurisdiction of the Court — Provisions of EU law made directly and unconditionally applicable by national law — VAT — Overseas departments — Works of construction — Concept — Transactions consisting in sale and installation on buildings — Photovoltaic panels — Solar water heating panels — Characterisation as a ‘single transaction’)

I. Introduction

1. The present request for a preliminary ruling, referred by the Conseil d’État (Council of State, France), concerns the interpretation of Article 5(5) and Article 6(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: uniform basis of assessment, ( 2 ) as amended by Council Directive 95/7/EC of 10 April 1995 ( 3 ) (‘the Sixth Directive), and of Article 14(3) and Article 24(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ( 4 ) (‘the VAT Directive’), which replaced the Sixth Directive with effect from 1 January 2007.

2. That request was submitted in the context of proceedings between Solar Electric Martinique SARL and the ministre des Finances et des Comptes publics (France) (Minister of Finance and Public Accounts) in respect of the additional assessments of value added tax (VAT) to which it was subject for the period from 1 January 2005 and 31 December 2007.

3. From the substantive viewpoint, the present case essentially turns on whether the supply and installation of photovoltaic and solar water heating panels on the roof of a building in order to supply that building with electricity or hot water is to be analysed for VAT purposes as a single complex transaction or as a number of separable transactions. That question has its origin in the different VAT rules applicable to the supply and installation of the equipment concerned. While the supply of photovoltaic and solar water heating panels in the French overseas departments enjoys a special exemption arrangement, the installation of that equipment may, under French law, be covered by the expression ‘works of construction’, referred to in Article 5(5) of the Sixth Directive and re-enacted in Article 14(3) of the VAT Directive, which are regarded as supplies of services and subject to VAT at the rate of 8.5%.

4. Before that issue can be resolved, however, it is necessary to ascertain whether the Court has jurisdiction to answer the referring court’s request. The main proceedings are taking place in Martinique, one of the overseas departments of the French Republic, which, pursuant to Article 3(3) of the Sixth Directive and Article 6(1)(c) of the VAT Directive, are expressly excluded from the scope of those directives.

5. In fact, for the reasons which will be set out below, I consider that the Court should declare that it lacks jurisdiction to answer the question referred by the Conseil d’État (Council of State).

II. Legal context

A. EU law

6. Under Article 2(1) of the Sixth Directive, the supply of goods and the supply of services effected for consideration within the territory of a Member State by a taxable person acting as such are to be subject to VAT.

7. Article 3 of the Sixth Directive, entitled ‘Territorial application’, provides, in paragraph 3, that the overseas departments of the French Republic are to be excluded from the interior of that Member State and are therefore to be excluded from the scope of that directive.

8. Article 5(1) of the Sixth Directive defines ‘supply of goods’ as the transfer of the right to dispose of tangible property as owner.

9. Article 5(5) of the Sixth Directive provides that Member States may consider the handing over of certain works of construction to be supplies within the meaning of paragraph 1.

10. Under Article 6(1) of the Sixth Directive, any transaction which does not constitute a supply of goods within the meaning of Article 5 is a supply of services.

11. The second subparagraph of Article 1(2) of the VAT Directive provides that, on each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, is to be chargeable after deduction of the amount of VAT borne directly by the various cost components.

12. In accordance with Article 6(1)(c), the VAT Directive is not to apply to the French overseas departments.

13. Article 14(3) of the VAT Directive has the same formulation as Article 5(5) of the Sixth Directive. In accordance with Article 24(1) of the VAT Directive, any transaction which does not constitute a supply of goods is a supply of services.

B. French law

14. Under Article 256(IV)(1) of the General Tax Code (code général des impôts) (‘the Code’), in the version applicable to the tax at issue in the main proceedings, ‘works of construction shall be regarded as supplies of services’ subject to VAT.

15. According to Article 266(1)(f) of the Code, the taxable amount is to be, for works of construction, the value of the contracts, bills or invoices.

16. Article 268 bis of the Code provides that where a person concurrently carries out transactions that fall within more than one of the categories provided for in the articles of that Chapter, his turnover is to be determined by applying the rules laid down in those articles to each of the groups of transactions.

17. Article 295 of the Code provides: ‘1. The following shall be exempt from [VAT]: … (5) in the departments of Guadeloupe, Martinique and Réunion: (a) imports of … goods, the list of which is determined by joint ministerial orders of the Minister for Economic Affairs and Finance and the Minister … with responsibility for … the overseas departments (ministre … chargé des départements d’outre-mer); (b) sales … of locally manufactured goods similar to those the import of which into the abovementioned departments is exempt under the above provisions; …’

18. Article 50 duodecies(I) of Annex IV to the Code mentions, among the goods which may be imported into the departments of Guadeloupe, Martinique and Réunion without being subject to VAT, ‘photosensitive semiconductor devices, including photovoltaic cells even where they are assembled in modules or made up in panels’.

III. The main proceedings, the question for a preliminary ruling and the procedure before the Court.

19. Solar Electric Martinique’s business includes the sale and installation of solar power equipment in the department of Martinique. Between 1 January 2005 and 31 December 2007 it charged VAT, at the rate of 8.5%, on the installation of photovoltaic and solar water heating panels on the roofs of residential buildings only in respect of the cost of the installation services, as it considered that the supply of that equipment benefited from the exemption provided for in Article 295 of the Code and Article 50 duodecies(1) of Annex IV to that Code.

20. Following an audit, the tax authorities considered that transactions consisting in the installation of photovoltaic and solar water heating panels were in the nature of works of construction and must therefore include the cost of the supply of that equipment. They therefore adjusted the taxable basis of the relevant transactions, on the basis of Article 266 of the Code.

21. On 21 September 2010, Solar Electric Martinique brought an action before the tribunal administratif de Fort-de-France (Administrative Court, Fort-de-France, France), seeking cancellation of the additional assessments of VAT issued by the tax authorities.

22. That action, and the ensuing appeal, were both dismissed and Solar Electric Martinique appealed on a point of law to the Conseil d’État (Council of State). It claimed, in particular, that the lower courts had erred in law in considering that the installation of photovoltaic and solar water heating panels which it had carried out constituted a single transaction in the nature of works of construction, when that equipment could be fitted without causing serious damage to the building concerned and was not normally carried out in conjunction with the construction of buildings.

23. The referring court states that the sale and installation of the equipment mentioned in Article 295 of the Code and in paragraph I of Article 50 duodecies of Annex IV to the Code are subject to VAT only in respect of the cost of installation, excluding the cost of the acquisition of the equipment, except where the installation may be characterised as a supply of works of construction, in which case it is subject to VAT in respect of the total amount charged to the customer.

24. The referring court observes that, while Article 295 of the Code applies only in the overseas departments, that is to say, outside the territorial scope of the Sixth Directive, Article 256 of the Code, on works of construction, also applies in metropolitan France and transposes into French law Article 5(5) and Article 6(1) of the Sixth Directive, the provisions of which were re-enacted in Article 14(3) and Article 24(1) of the VAT Directive.

25. According to the referring court, it is necessary to seek a uniform application of the provisions of those directives within the European Union. Therefore, although the dispute which it must resolve relates to transactions carried out outside the territorial scope of those directives, the question arises whether the sale and installation of photovoltaic and solar water heating panels on buildings or with a view to supplying buildings with electricity or hot water are a single transaction in the nature of works of construction, within the meaning of those directives.

26. It was in those circumstances that the Conseil d’État (Council of State) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘Do the sale and installation of photovoltaic and solar water heating panels on buildings, or with a view to supplying electricity or hot water to buildings, constitute a single transaction that may be characterised as works of construction for the purposes of Article 5(5) and Article 6(1) of [the Sixth Directive], now Article 14(3) and Article 24(1) of [the VAT Directive]?’

27. Written observations on that question were submitted by the French Government and by the European Commission. Those interested parties, and Solar Electric Martinique, submitted oral argument at the hearing on 9 February 2017.

IV. Analysis

28. As I shall argue in this opinon, I consider, primarily, that the Court lacks jurisdiction to answer the question referred to it. It is therefore purely in the alternative in case the Court should not adopt that proposal, that I shall analyse the substance of the question submitted by the referring court.

A. Primarily, the Court lacks jurisdiction to answer the question referred to it

29. As the referring court acknowledges, and as I made clear in my introductory remarks, the facts giving rise to the present case took place solely in Martinique, namely in one of the overseas departments of the French Republic, which are expressly excluded from the territorial scope of the Sixth Directive and the VAT Directive. The main proceedings therefore fall outside the scope of the relevant provisions of EU law.

30. It is true that the Court has regularly declared that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts of the cases being considered by the national courts were outside the scope of EU law but where those provisions of EU law had been rendered applicable because national law contained a reference to their content. ( 5 )

31. In that context, the Court has made clear in its recent case-law that an interpretation by it of the provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way. ( 6 )

32. In order to determine whether it has jurisdiction to answer the question referred to it, the Court therefore ascertains whether there are sufficiently precise indications that allow it to establish that national law has made such a direct and unconditional reference to EU law. ( 7 )

33. Indeed, the Court’s current case-law is particularly inconsistent as regards the origin of the sufficiently precise indications that must be provided to it. Sometimes the Court proves to be rather intransigent, and requires that such indications by provided by the referring court alone, failing which it declares that there is no need to answer the question referred to it, ( 8 ) and sometimes it adopts a more conciliatory approach and in declaring that it has jurisdiction notwithstanding the lacunae in the request for a preliminary ruling, it accepts the explanations provided by the interested parties, in particular those of intervening Governments, in the proceedings before the Court, including where those explanations are provided only at the hearing before the Court. ( 9 )

34. The fact nonetheless remains that the Court insists that it must be in possession of sufficiently precise information establishing the direct and unconditional reference by national law to the provisions or principles of EU law which it is requested to interpret, ( 10 ) especially in the case of situations which are expressly excluded from the scope of EU law by the EU legislature. ( 11 )

35. In the present case, in spite of the finding that the transactions at issue in the main proceedings fall outside the scope of the Sixth Directive and the VAT Directive, and that Article 295 of the Code does not apply to the overseas departments, the referring court considers that Article 256 of the Code, on ‘works of construction’, transposes the relevant provisions of those directives into national law and that, since that article also applies to metropolitan France, it is necessary to seek a uniform application of those provisions within the European Union.

36. Those explanations are not convincing.

37. I observe, first of all, that the request for a preliminary ruling was specifically made because, as regards the overseas departments to which the Sixth Directive and the VAT Directive do not apply, there are special provisions, namely Article 295 of the Code and paragraph I of Article 50 duodecies of Annex IV to the Code, which exempt the supply of photovoltaic and solar water heating panels.

38. It is in the context of that exemption that the referring court considers it necessary to ascertain whether the two transactions consisting in the supply and the installation of photovoltaic and solar water heating panels must be regarded as separate and independent, in which case VAT should be paid only in respect of the installation of such panels, while the supply of the panels is exempt. On the other hand, if those two transactions must be regarded as constituting a single transaction which, in the referring court’s view, can be characterised as such only if the installation of the equipment in question is characterised as ‘works of construction’, tax will also be charged on the supply of the equipment.

39. It is clear that Article 295 of the Code does not make any direct and unconditional reference to the provisions of the Sixth Directive and the VAT Directive. That article puts in place a specific exemption regime, not provided for in those directives, for supplies of goods in the overseas departments, which are excluded from the scope of those directives.

40. Next, as regards the problem associated with the concept of ‘works of construction’, it should be borne in mind that Article 5(5) of the Sixth Directive, now Article 14(3) of the VAT Directive, gives Member States the option to regard the supply of certain works of construction as the supply of goods.

41. As the Commission has pointed out in its observations, it follows from Article 256(IV)(1) of the Code that works of construction are to be regarded not as supplies of goods but as supplies of services, which means that the French Republic did not rely on the option provided by Article 5(5) of the Sixth Directive, and then by Article 14(3) of the VAT Directive, as the French Government confirmed in answer to the questions put by the Court. In those circumstances, Article 256(IV)(1) of the Code can certainly not be considered to constitute a direct and unconditional reference to the abovementioned provisions of those directives.

42. Admittedly, as France has not exercised the option provided by Article 5(5) of the Sixth Directive and By Article 14(3) of the VAT Directive, the works of construction referred to in Article 256(IV)(1) of the Code come, by contrary inference and implicitly, under Article 6(1) of the Sixth Directive and Article 24(1) of the VAT Directive, which, without referring to the concept of ‘works of construction’, both state that any transaction which does not constitute a supply of goods is to be considered a ‘supply of services’. ( 12 )

43. However, such reasoning, reliant on contrary inference and implication, is not at all equivalent to a direct and unconditional reference by Article 256(IV)(1) of the Code to the relevant provisions of those directives. On the contrary, Article 256(IV)(1) of the Code is to my mind the manifestation of France’s refusal to exercise the option provided by Article 5(5) of the Sixth Directive and Article 14(3) of the VAT Directive, both within and outside the context of the territorial scope of those directives.

44. As the Commission has correctly observed, if France had exercised the option provided for in Article 5(5) of the Sixth Directive (and in Article 5(5) of the VAT Directive) by characterising works of construction as supplies of goods, the question for a preliminary ruling would not have arisen, since, under the specific regime applicable to the overseas departments on the basis of Article 295 of the Code, the installation of photovoltaic and solar water heating panels, characterised by the referring court as works of construction, would, as such, have been exempt, like the supply and import of that equipment in those departments.

45. All in all, the question for a preliminary ruling is the result of France’s refusal to exercise the option provided for in Article 5(5) of the Sixth Directive (and in Article 14(3) of the VAT Directive) in conjunction with the application of an exemption in favour of the French overseas departments, which can be granted by French law only on the ground that those departments are themselves expressly excluded from the scope of those directives. ( 13 )

46. It follows that the Court clearly does not have information that allows it to find that French law makes a direct and unconditional reference to the provisions of the Sixth Directive and the VAT Directive the interpretation of which is sought by the referring court.

47. That conclusion is not invalidated by the argument, stated by the referring court, that there is an interest in giving a uniform interpretation to the expression ‘works of construction’ in Article 5(5) of the Sixth Directive and Article 14(3) of the VAT Directive.

48. In fact, even on the assumption that the interpretation of that expression were actually essential for the resolution of the dispute in the main proceedings, ( 14 ) as the Court made clear in the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 55), if the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, at least until such time as any new EU rules are adopted, the objective of a uniform interpretation and application of the rules of law in that excluded area.

49. What held good the judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 55), which concerned a case of express exclusion from the scope ratione materiae of a directive, to my mind also holds good where the situation concerns a case of express exclusion ratione loci from the scope of the Sixth Directive and the VAT Directive.

50. Although it may seem relatively strict in the light of the spirit of cooperation governing the procedure provided for in Article 267 TFEU, that case-law is based essentially on respect for the allocation of powers between the legislature and the Courts of the European Union. Thus, the fact that VAT is applied in the French overseas territories does not in any way mean that, merely because a national court, no matter how sincerely, wishes it to do so, the Court is authorised to interpret the concepts of EU law in the Sixth Directive and the VAT Directive in a situation in which the EU legislature has expressly excluded those departments from the scope of those directives and in which, moreover, there is no evidence on which the Court might be satisfied that French law makes a direct and unconditional reference to the provisions of the measures which the referring court is asking it to interpret. If the Court were to answer any question for a preliminary ruling relating to VAT on the sole ground that that tax applies in the French overseas departments, it would fly in the face of the express choice of the EU legislature to exclude those departments from the common system of VAT established by the Sixth Directive and the VAT Directive.

51. Nor does the fact that the request for a preliminary ruling has been made by a court of last instance alter that analysis. The Court has already refused to answer questions referred by courts against whose decisions there is no appeal in domestic law, in application of the case-law established in the judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868), and of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638). ( 15 )

52. In those circumstances, I propose that the Court should declare that it lacks jurisdiction to answer the question for a preliminary ruling submitted by the referring court.

53. Accordingly, as I have already stated, it is purely in the alternative that I shall examine the question referred to the Court.

B. In the alternative, concerning the existence of a single transaction (having the nature of ‘works of construction’) or of a number of separable transactions

54. As I have already underlined, the referring court asks, in essence, whether transactions consisting in (i) the supply of photovoltaic and solar water heating panels and (ii) the installation of such equipment on the roof of a building or with a view to providing the building with electricity or hot water constitute a single complex transaction composed of several elements or whether they must be considered to be wholly separable.

55. It is apparent from the case file that, in accordance with the case-law of the Conseil d’État (Council of State), ( 16 ) the transactions could be deemed to constitute a single transaction only if the installation of the equipment in question were characterised as works of construction, that is to say that it played a direct part in the construction of a building.

56. As regards the single or distinct nature of the transactions in question, it should be borne in mind that, according to the case-law of the Court applicable both under the Sixth Directive and under the VAT Directive, for the purposes of VAT, each transaction must normally be regarded as distinct and independent. ( 17 )

57. There are two exceptions to that basic rule.

58. In the first place, there is a single transaction where two or more elements or acts supplied by the taxable person are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split. ( 18 )

59. In the second place, a single transaction must also be found to exist where a supply consists of a principal supply and the other supply or supplies constitute one or more ancillary supplies which are treated in the same way for tax purposes as the principal supply. In particular, 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. ( 19 )

60. It also follows from the Court’s case-law that, in order to determine whether the services supplied constitute a single supply for the purposes of VAT, it is necessary to examine the characteristic elements of the transaction concerned, ( 20 ) it being understood that, in the context of the cooperation established by Article 267 TFEU, it is incumbent on the national courts to determine whether the taxable person makes a single supply in a particular case and to make all definitive findings of fact in that regard, while the Court provides them with all the guidance of the interpretation of EU law that may be of assistance in adjudicating on the case before them. ( 21 )

61. In the present case, in spite of the scant information communicated by the referring court, it is common ground that the contracts between Solar Electric Martinique and its customers were for both the supply of physical goods and the installation of those goods with a view to their being used in order to produce electricity or supply hot water, either for the building on which that equipment is installed or for resale. ( 22 )

62. That fact leads the French Government, in an extension of the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195), to characterise the two transactions as a single complex supply. In fact, according to the French Government, as in the case that gave rise to the judgment in Aktiebolaget NN, the installation of the equipment seems necessary for the performance of the contracts entered into by Solar Electric Martinique, as the supply of the photovoltaic and solar water heating panels does not on its own enable them to be used.

63. The French Government’s reading of the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195) strikes me as somewhat simplistic.

64. I recall that in that case the Court was asked, in particular, whether the supply and laying of an undersea fibre-optic cable must be regarded as forming a single transaction for the purposes of VAT, which, moreover, the national court and all the parties which had lodged observations maintained. The Court subscribed to the argument advanced by the national court and the parties in question, and stated, in paragraphs 24 and 25 of its judgment, that the contract in question concerned the transfer, after completion of the installation and functionality tests, of a cable laid and in working condition, from which it could be concluded that all the elements of the transaction at issue in the main proceedings appeared to be necessary to its completion and to be closely linked. That assertion, reiterated in paragraph 33 of the judgment and to my mind decisive, relating to the time at which the transfer of ownership of the cable takes place, that is to say, whether ownership is transferred before or after the cable is laid and the functionality tests are carried out, undoubtedly echoes the Opinion of Advocate General Léger in Aktiebolaget NN (C‑111/05, EU:C:2006:575). The Advocate General observed, in point 45 of his Opinion, that, given that the right to dispose of the cable is transferred only when installation is complete and operational tests have been carried out, it would not be in keeping with the commercial reality of that transaction to consider that the customer has first purchased the undersea fibre-optic cable and subsequently purchased the services relating to its installation.

65. Contrary to the French Government’s assertion, it cannot therefore be inferred from the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195) that the supply of a physical asset and its subsequent installation by the same taxable person form a single complex operation for the purposes of VAT merely because the installation is necessary in order to ensure that the physical asset can function. If the installation is always necessary, the Court concluded that there was a single complex transaction solely because the supply of the cable, that is to say, the transfer of ownership of that asset, took place only after the installation.

66. It follows that, before being able to characterise the supply and installation of the photovoltaic and solar water heating panels as constituting elements of a complex single transaction for the purposes of VAT, the referring court ought in my view first of all to ascertain the time from which the transfer of ownership to the Solar Electric Martinique’s customers takes effect, namely whether it does so before or after the equipment is installed and put into service.

67. If the transfer of ownership of the photovoltaic and solar water heating panels takes place after they have been installed and put into service, I consider that, as in the situation that gave rise to the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195), the existence of a single complex transaction might be established.

68. In the opposite situation, the transactions should in my view be considered to be mutually independent, and each transaction would then necessarily be subject to rules specific to it: the supply of the photovoltaic and solar water heating panels would be exempt, while the installation of that equipment would have to be subject to payment of VAT.

69. In so far as it is not apparent from the decision for reference that such an examination was carried out, it is for the referring court to ascertain which of those two situations is relevant in the main proceedings.

70. The situation envisaged in point 67 of this Opinion, according to which the two transactions might be regarded as elements of a single complex transaction, and which appears to be favoured by the referring court in the light of the wording of its question, is not called into question by the fact that those two transactions might, in different circumstances, be carried out by separate taxable persons.

71. In fact, and generally, the possibility that elements of a single complex transaction may, in different circumstances, by supplied separately is inherent in the concept of a single complex transaction. ( 23 )

72. Furthermore, if a customer chooses to approach two different taxable persons for the supply and the installation, respectively, of the equipment at issue in the main proceedings, the transfer of the ownership of the equipment to the customer will already have been effected following the first transaction, and the installation will therefore be of equipment belonging not to the taxable person who supplied it but to his customer.

73. The fact nonetheless remains that the characterisation of the two transactions as elements of a single complex transaction does not mean, contrary to what the referring court appears to assume, that that transaction is in the nature of a ‘supply of services’, in this instance of ‘works of construction’, rather than a ‘supply of goods’, for the purposes of the Sixth Directive and the VAT Directive.

74. In order to determine whether a single complex transaction must be characterised as a ‘supply of goods’ or as a ‘supply of services’, it is essential to identify the predominant elements of that transaction. ( 24 )

75. Accordance to the case-law, the predominant element must be determined from the point of view of the typical consumer and having regard, in an overall assessment, to not merely the quantitative but also the qualitative importance of the elements of supply of services compared to the elements of supply of goods. ( 25 ) What is required is therefore a complex appraisal which must in principle be based on a case-by-case analysis. ( 26 )

76. Within the framework of the allocation of powers between the Court and the national courts provided for in Article 267 TFEU, it is clearly for the referring court to carry out such an appraisal.

77. That being so, I consider that certain useful guidance may be found in the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195).

78. After examining the elements provided to it by the national court, the Court held, in paragraph 40 of that judgment, that the complex transaction, for both the supply and installation of a fibre-optic cable and the laying of that cable, must be considered a ‘supply of goods’ within the meaning of Article 5(1) of the Sixth Directive, since the cable was transferred to the customer, the price of the cable represented what was clearly the greater part of the total cost of the transaction and the supplier’s services were limited to the laying of the cable without altering its nature and without adapting it to the specific requirements of the customer.

79. It is significant that the Court characterised that complex transaction as a ‘supply of goods’, not only in spite of the fact that the laying of the cable required the implementation of complex technical procedures and the use of specialised equipment and specific knowledge, ( 27 ) but also in spite of the fact that the cable, as moveable property, was to be installed in the ground, which might give the initial impression that the transaction was more likely to come within the concept of ‘works of construction’ and therefore, in principle, to be characterised as a ‘supply of services’, within the meaning of Article 6(1) of the Sixth Directive. ( 28 )

80. In fact, the Court considered that, in so far as, under the Sixth Directive, the installation of moveable property did not cause the transaction to lose its classification as a ‘supply of goods’, the fact that the installation had as its characteristic the incorporation of that moveable property in the ground did not have the consequence that the transaction should necessarily be characterised as ‘works of construction’ within the meaning of Article 5(5) of the Sixth Directive ( 29 ) and therefore, in principle, as a ‘supply of services’.

81. On that last point, the Court’s reasoning is borne out, in my view, by the observation of Advocate General Léger, in point 52 of his Opinion in Aktiebolaget NN (C‑111/05, EU:C:2006:575), that Article 5(5) of the Sixth Directive did not reproduce the provision, contained in Article 5(2)(e) of Second Council Directive 67/228/EEC, ( 30 ) according to which the incorporation of tangible property into immovable property is the same as a work of construction.

82. In the present case, the referring court has provided virtually no information on the equipment in question or on the way in which it is installed, although, as the Commission has correctly observed, as regards the photovoltaic panels, there is quite a wide variety of situations as concerns the type of model, size and weight and also the methods of installation, ranging from the incorporation of the panels in the roof of the building to laying them on a rail or a framework (known as ‘superimposition’), or indeed to the installation of the panels exclusively on the ground. In addition, the electricity generated by that equipment may sometimes be sold to the operator responsible for the electricity distribution network and sometimes used to supply the building on which the equipment is installed, or indeed used for both purposes. Furthermore, as the Commission has also observed, solar power is a developing area in which technology changes quickly.

83. In answer to the questions put by the Court, Solar Electric Martinique stated that the photovoltaic panels at issue in the main proceedings were of different weights, varying between 9 kg and 19 kg, depending on the model, and small in size. They are superimposed on the roof, that is to say, without being integrated in the roof and therefore without modification or dismantling of the components of the roof. That method of installation does not require particular technical skill or know-how and is not expensive. The panels can thus be attached and, if necessary, removed easily and quickly.

84. In the light of the elements on which the Court relied in the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 40) when it considered that the supply of fibre-optic cables was the predominant transaction, with the consequence that the complex transaction at issue in that case had to be characterised as a ‘supply of goods’, it seems to me that the characteristics described by Solar Electric Martinique, subject to verification by the referring court, should lead to the same conclusion. The installation, by superimposition, of the photovoltaic panels does not in any way appear to constitute a clearly predominant part of the total cost of the complex single transaction, as the services of the supplier appear to be limited to installing those panels, without altering their nature and without adapting them to the specific requirements of customers. In addition, the installation of the photovoltaic panels is relatively quick and technically simple, unlike the laying of the fibre-optic cable at issue in the case that gave rise to the judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195), which to my mind constitutes an even more compelling reason to find that the supply of those goods is the predominant element of the complex single transaction.

85. It does not seem that a different assessment must be made with respect to the supply and installation of the solar water heating panels.

86. If the situation described in point 67 of this Opinion should be confirmed by the referring court, and if that court should also find that the transactions carried out by Solar Electric Martinique have the characteristics described in point 84 above, the tax regime applicable to the supply of goods would then have to be applied to the entire single complex transaction. Consequently, that transaction would have to be exempt from VAT, in application of the special arrangement applicable to the overseas departments under Article 295 of the Code.

87. I would add that, contrary to the French Government’s contention before the Court, the purpose to which the electricity and hot water generated by the equipment, such as that supplied and installed by Solar Electric Martinique, are put is not in my view directly relevant for the purposes of the characterisation of the single complex transaction as a ‘supply of goods’ or a ‘supply of services’ for the purposes of VAT. As was illustrated in the oral proceedings before the Court, the application of such a test, especially in the case of the photovoltaic panels, would lead to significant legal uncertainty for both economic operators and their customers, in particular when the purpose to which the electricity produced is put is mixed or is altered during the term of the contract. To my mind, it is more the qualitative importance of the installation by comparison with the supply of the equipment in the overall assessment of the complex single transaction, in particular of the cost of the former by comparison with the latter, which includes the installation method employed, and the adaptation of the equipment to the particular needs of customers, that might alter the analysis of the predominance test. ( 31 )

88. In the light of those considerations, it is clear that there is no need to interpret the expression ‘works of construction’ within the meaning of Article 5(5) of the Sixth Directive and Article 14(3) of the VAT Directive.

89. That finding further reinforces my principal proposal that there is no need to answer the question referred by the Conseil d’État (Council of State).

90. Should the Court nonetheless consider it necessary to interpret the expression ‘works of construction’ within the meaning of Article 5(5) of the Sixth Directive and Article 14(3) of the VAT Directive, it would in my view be necessary first of all to point out that, since that expression is not defined in those articles, its meaning and scope would have to be determined by reference to the general context in which it is used and its usual meaning in everyday language. ( 32 )

91. In everyday language, that expression covers all works relating to an immovable asset, such as the works involved in the construction, demolition, conversion, renovation or refurbishment of a building.

92. The question whether the installation of movable property on immovable property must be included in the concept of ‘works of construction’ must to my mind take into account that fact that the Council, both when adopting the Sixth Directive and, later, when adopting the VAT Directive, did not accept the Commission’s initial proposal, submitted on 29 June 1997, ( 33 ) that the incorporation of moveable property in immoveable property, including all installation works, had to be regarded as ‘works of construction’.

93. Admittedly, under the aegis of the VAT Directive, Council Implementing Regulation (EU) No 1042/2013 of 7 October 2013 amending Implementing Regulation (EU) No 282/2011 as regards the place of supply of services, ( 34 ) provides for the insertion into that regulation of Article 13b, which states that, for the application of the VAT Directive, ‘any item that has been installed and makes up an integral part of a building or construction without which the building or construction is incomplete, such as doors, windows, roofs, staircases and lifts’ is to be regarded as ‘immovable property’.

94. However, even on the assumption that that definition means that the expression ‘works of construction’, within the meaning of Article 14(3) of the VAT Directive, now includes the installation of the item in question in Article 13b of Council Implementing Regulation No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax, ( 35 ) as amended, it should be observed that that article, in accordance with Article 3 of Regulation No 1042/2013, did not enter into force until 1 January 2017. Accordingly, apart from the fact that that measure does not apply to the overseas departments, it was in any event not applicable at the time of the facts of the main proceedings.

95. I conclude that, at the time of the facts of the main proceedings, there was no indication in Article 5(5) of the Sixth Directive or Article 14(3) of the VAT Directive to suggest that any installation of moveable property, such as a photovoltaic panel or a solar water heating panel of the type of those at issue in the main proceedings, on an immovable property would constitute a work of construction.

V. Conclusion

96. In the light of the principal considerations set out in this Opinion, I propose that the Court should declare that it lacks jurisdiction to answer the request for a preliminary ruling submitted by the Conseil d’État (Council of State) (France).

( 1 ) Original language: French.

( 2 ) OJ 1977 L 145, p. 1.

( 3 ) OJ 1995 L 102, p. 18.

( 4 ) OJ 2006 L 347, p. 1.

( 5 ) See, to that effect, judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 17), and of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 45), and orders of 3 September 2015, Orrego Arias (C‑456/14, not published, EU:C:2015:550, paragraph 21), and of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraph 26).

( 6 ) See, in particular, judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 17); of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 47); of 18 December 2014, Generali-Providencia Biztosító (C‑470/13, EU:C:2014:2469, paragraph 23); and of 5 April 2017, Borta (C‑298/15, EU:C:2017:266, paragraph 34). Although the test applied in these judgments, namely that there must be a ‘direct and unconditional’ reference by national law to EU law, is based on certain judgments preceding that case-law, the first of which seems to be the judgment of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85, paragraph 16), the case-law prior to the judgment of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868) referred rather to the generic test of the existence (or absence) of a reference by national law to Community law or EU law (see, in particular, judgment of 11 January 2001, Kofisa Italia (C‑1/99, EU:C:2001:10, paragraph 28) and, concerning VAT, order of 16 April 2008, Club Náutico de Gran Canaria (C‑186/07, not published, EU:C:2008:227, paragraphs 19 and 20), where the Court declared that it manifestly lacked jurisdiction to interpret the provisions of the Sixth Directive in the context of a situation which fell outside the territorial and material scope of that directive).

( 7 ) See, to that effect, judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraph 48), and order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraph 27). I would make clear that what is at issue is not admissibility but jurisdiction, as the Court confirmed in the judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 12).

( 8 ) See, in particular, judgment of 18 December 2014, Generali-Providencia Biztosító (C‑470/13, EU:C:2014:2469, paragraphs 24 to 26), orders of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraphs 28 to 31), and of 28 June 2016, Italsempione - Spedizioni Internazionali (C‑450/15, not published, EU:C:2016:508, paragraphs 22 to 24).

( 9 ) See judgment of 14 January 2016, Ostas celtnieks (C‑234/14, EU:C:2016:6, paragraphs 17 to 21).

( 10 ) See, in that regard, in particular, judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraphs 25 to 29), and of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraphs 34 to 36), and order of 9 September 2014, Parva Investitsionna Banka and Others (C‑488/13, EU:C:2014:2191, paragraphs 34 and 35).

( 11 ) See judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraphs 48 to 52), and order of 9 September 2014, Parva Investitsionna Banka and Others (C‑488/13, EU:C:2014:2191, paragraphs 34 and 35).

( 12 ) As I have already pointed out in my Opinion in BLV Wohn- und Gewerbebau (C‑395/11, EU:C:2012:564, points 62 to 64 and 69), in the system governed by the Sixth Directive and the VAT Directive, ‘works of construction’ are supplies of services.

( 13 ) As one writer has colourfully noted, because the overseas departments like Martinique are outside the scope of the VAT Directive, the French legislature has, in those circumstances, complete discretion (‘toute latitude’) to apply in those parts of the world (‘sous ces latitudes’) arrangements that derogate from that directive: see Moraine, A., ‘La question préjudicielle Solar Electric Martinique: communautarisation de la TVA des DOM et définition des travaux immobiliers en TVA’, Revue de droit fiscal, No 37, 2016.

( 14 ) Which I doubt: see in that respect points 70 to 88 of this Opinion.

( 15 ) See, concerning a request for a preliminary ruling submitted by the Consiglio di Stato (Council of State, Italy), order of 28 June 2016, Italsempione - Spedizioni Internazionali (C‑450/15, not published, EU:C:2016:508, paragraphs 20 to 24), and concerning a request submitted by the Supremo Tribunal Adminstrativo (Supreme Administrative Court, Portugal), order of 7 July 2016, Sá Machado & Filhos (C‑214/15, not published, EU:C:2016:548, paragraphs 31 to 34).

( 16 ) See, in particular, judgments of the Conseil d’État (France) of 17 December 1976, SA Guillioud, No 94852, and of 13 June 1980, Sté Tecres, No 14824, and also of 27 July 2001, Sté Cofindus No 216193.

( 17 ) See, in particular, to that effect, as concerns Article 2(1) of the Sixth Directive, judgments of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 22); of 2 December 2010, Everything Everywhere (C‑276/09, EU:C:2010:730, paragraph 21); 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), and, concerning the second subparagraph of Article 1(2) of the VAT Directive, judgments of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15), and of 8 December 2016, Stock ’94 (C‑208/15, EU:C:2016:936, paragraph 26).

( 18 ) See, to that effect, in particular, judgments 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); of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 31); and of 8 December 2016, Stock ’94 (C‑208/15, EU:C:2016:936, paragraph 27).

( 19 ) See, in particular, to that effect, judgments 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 54); of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 31); and of 8 December 2016, Stock ’94 (C‑208/15, EU:C:2016:936, paragraph 27).

( 20 ) See judgments of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 32); of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 32); and of 8 December 2016, Stock ’94 (C‑208/15, EU:C:2016:936, paragraph 28).

( 21 ) See, to that effect, judgments 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 55); of 17 January 2013, BGŻ Leasing (C‑224/11, EU:C:2013:15, paragraph 33); and of 8 December 2016, Stock ’94 (C‑208/15, EU:C:2016:936, paragraph 30).

( 22 ) I note, for what it is worth, that although Solar Electric Martinique’s customers acquire the ownership of the transferred equipment, they are not necessarily the owners of the properties on which the equipment is installed.

( 23 ) See judgment of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie (C‑42/14, EU:C:2015:229, paragraph 41 and the case-law cited).

( 24 ) See, in particular, judgments of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 27), 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 61).

( 25 ) See, to that effect, in particular, judgment 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 62 and the case-law cited).

( 26 ) Judgment of 13 December 2012, BLV Wohn- und Gewerbebau (C‑395/11, EU:C:2012:799, paragraph 29).

( 27 ) Judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 29).

( 28 ) The parties in the main proceedings in that case supported that argument, and Sweden had, moreover, like France, decided not to choose the option offered by Article 5(5) of the Sixth Directive to treat the supply of certain works of construction as a ‘supply of goods’.

( 29 ) Judgment of 29 March 2007, Aktiebolaget NN (C‑111/05, EU:C:2007:195, paragraph 35).

( 30 ) Directive of 11 April 1967 on the harmonisation of the legislation of Member States concerning turnover taxes — Structure and procedures for application of the common system of value added tax (OJ English Special Edition 1967, p. 16).

( 31 ) See, to that effect, judgment of 27 October 2005, Levob Verzekeringen and OV Bank (C‑41/04, EU:C:2005:649, paragraphs 28 to 30), concerning the predominant nature of the customisation of basic software entailing the classification of a complex transaction as a ‘supply of services’ within the meaning of Article 6(1) of the Sixth Directive.

( 32 ) See in that regard, and by analogy with the concept of ‘works of construction’, judgment of 13 December 2012, BLV Wohn- und Gewerbebau (C‑395/11, EU:C:2012:799, paragraphs 23 and 25).

( 33 ) Proposal for a sixth Council Directive on the harmonisation of legislation of Member States concerning turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1973 C 80, p. 1).

( 34 ) OJ 2013 L 284, p. 1.

( 35 ) OJ 2011 L 77, p. 1.