Case C‑419/14

WebMindLicenses Kft.

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Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vám Főigazgatóság

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi bíróság)

‛Reference for a preliminary ruling — Value added tax — Directive 2006/112/EC — Articles 2, 24, 43, 250 and 273 — Place of supply of electronically supplied services — Artificial fixing of that place by means of an arrangement not reflecting economic reality — Abuse of rights — Regulation (EU) No 904/2010 — Charter of Fundamental Rights of the European Union — Articles 7, 8, 41, 47, 48, 51(1) and 52(1) and (3) — Rights of the defence — Right to be heard — Use by the tax authorities of evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not been concluded — Interception of telecommunications and seizure of emails’

Summary — Judgment of the Court (Third Chamber), 17 December 2015

Harmonisation of fiscal legislation — Common system of value added tax — Transactions constituting an abusive practice — Procedure for the adjustment of tax — Use of evidence obtained without the taxable person’s knowledge in the context of a parallel criminal procedure that has not been concluded — Lawfulness — Condition — Observance of the rights guaranteed by EU law, in particular fundamental rights — Right to respect for family life — Right to be heard — Right to an effective judicial remedy

Harmonisation of fiscal legislation — Common system of value added tax — Administrative cooperation and combating fraud — Member State examining whether value added tax is chargeable in respect of supplies of services that have already been subject to that tax in other Member States — Obligation to request information from the tax authorities of those other Member States — Conditions

Harmonisation of fiscal legislation — Common system of value added tax — Transactions constituting an abusive practice — Concept — Licensing agreement concerning the making available of know-how enabling operation of a website — Agreement concluded with a company established in a Member State other than that of the company granting the licence — Factors to be taken into consideration — Agreement constituting a wholly artificial arrangement — Verification a matter for the national court

EU law must be interpreted as meaning that, in order to determine whether a licensing agreement concerning the making available of know-how enabling operation of a website by which interactive audiovisual services have been supplied, concluded with a company established in a Member State other than that in which the company granting the licence is established, arises from an abuse of rights designed to benefit from the fact that the rate of value added tax applicable to those services is lower in that other Member State, the fact that the manager and sole shareholder of the latter company is the creator of that know-how, that that same person exercises influence or control over the development and exploitation of that know-how and over the supply of the services which are based on it and that management of the financial transactions, staff and technical instruments necessary for the supply of those services is carried out by subcontractors, and the reasons which may have led the company granting the licence to make the know-how at issue available to a company established in that other Member State instead of exploiting it itself, do not appear decisive in themselves. It is incumbent upon the referring court to analyse all the circumstances of the main proceedings in order to determine whether that agreement constitutes a wholly artificial arrangement concealing the fact that the services at issue have not actually been supplied by the company acquiring the licence, but have in fact been supplied by the company granting it, examining in particular whether the establishment of the place of business or fixed establishment of the company acquiring the licence is not genuine, whether that company, for the purpose of engaging in the economic activity concerned, does not possess an appropriate structure in terms of premises and human and technical resources and whether it does not engage in that economic activity in its own name and on its own behalf, under its own responsibility and at its own risk. (see paras 49, 50, operative part 1)

EU law must be interpreted as meaning that, if an abusive practice is found which has resulted in the place of supply of services being fixed in a Member State other than the Member State where it would have been fixed in the absence of that abusive practice, the fact that value added tax has been paid in that other Member State in accordance with its legislation does not preclude an adjustment of that tax in the Member State in which the place where those services have actually been supplied is located. (see para. 53, operative part 2)

Regulation No 904/2010 on administrative cooperation and combating fraud in the field of value added tax must be interpreted as meaning that the tax authorities of a Member State which are examining whether value added tax is chargeable in respect of supplies of services that have already been subject to that tax in other Member States are required to send a request for information to the tax authorities of those other Member States when such a request is useful, or even essential, for determining that value added tax is chargeable in the first Member State. (see para. 59, operative part 3)

See the text of the decision. (see para. 83)