2.

Question 1 seeks to establish the place where transactions are to be deemed to have taken place for tax purposes where the services in question were provided by gaming machines on ships plying between the territories of two Member States. The relevant rule is, I repeat, set out in Article 9 of the Sixth Directive. Article 9(1) provides that ‘The place where a service is supplied shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.’ However, Article 9 (2) provides for several exceptions. As a result, the place of supply of services relating to ‘cultural, artistic, sporting, scientific, educational, entertainment or similar activities’ including the supply of ancillary services (first indent of Article 9 (2) (c)) or to ‘ancillary transport activities such as loading, unloading, handling and similar activities’ (second indent of Article 9 (2) (c)), is deemed to be the place where those services are physically carried out. As is stated in the order for reference and in the Commission's observations, the services at issue do not fall within those exceptions. They cannot be covered by the first indent of Article 9 (2) (c) owing to their ‘itinerant’ character or by the second indent of that provision because they have nothing to do with the loading, unloading or handling of the ships. All that remains is the general rule laid down in Article 9 (1). As we have already seen, that provision contains two main criteria and one subsidiary one. The first are based on the place where the supplier has established his husiness or where he has a fixed establishment from which he organizes the service. The third criterion, which operates only when the other two do not apply, is the place where the supplier has his permanent address or usually resides. The concept of the ‘place where the supplier has established his business’ is not the subject of the order for reference and, in any event, does not raise problems. I shall therefore merely observe that it should be understood in its technical sense of the registered office, as indicated by the statutes of the company owning the supplier undertaking. The concept of ‘fixed establishment’ is more complex. I shall start by saying that ‘fixed’ is equivalent to ‘lasting’ or ‘continuous’ and is the opposite of ‘temporary’ or ‘occasional’. But that does not suffice. A business establishment, particularly where it provides services over a period of time, presupposes a certain degree of organization. And there is no organization — an ordered structure comprising things and persons — which does not imply some division of labour. As a result, a supplier of services has to have both physical means and staff to help him exploit and operate those physical means. Therewith the court making the reference has the interpretation which it has requested: a fixed establishment within the meaning of Article 9 (1) may well be an installation (such as a gaming machine), but only if it is permanently installed in a particular place and its operation requires human energy. A final question: on which of the two main criteria laid down in Article 9 (1) must one rely when, as here, the place where the supplier has established his business does not coincide with the supplier's fixed establishment? The provision is silent in that regard; nor does the preamble to the directive provide any assistance since the seventh recital uses the term ‘principal place of business’ but in all evidence not as a term of art. I therefore propose to rely on the general principle that value-added tax should be charged at the place of consumption and hence give preference to the criterion which enables the supply of services to be located more accurately. There is no doubt that the more appropriate of the two for that purpose is the criterion of the ‘fixed establishment’ which is clearly more precise. That finding is of general application but it is particularly useful in this case where the business activity is carried out in areas that fall within the geographical scope of two different tax systems rather than in one country only. The activity in question must therefore be located on the ship and, irrespective of the State in which the undertaking's principal place of business is situated, will be subject to the law of the State of the ship.