Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Burgas pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite v Orfey Balgaria EOOD.
Date: 2012-12-19
27. It should be borne in mind that Article 63 of the VAT Directive provides that the chargeable event for VAT occurs and VAT becomes chargeable at the time when the goods or services are supplied. Article 65 of the same directive, which provides that where a payment is to be made on account before the goods or services are supplied, VAT is to become chargeable on receipt of the payment and on the amount received, constitutes a derogation from the rule laid down in Article 63 and, as such, must be interpreted strictly (Case C-419/02 BUPA Hospitals and Goldsborough Developments  [2006] ECR I-1685, paragraph 45).
28. Thus, in order for VAT to be chargeable before the supply of goods or services is made, all the relevant information concerning the chargeable event, namely the future supply of goods or services, must already be known and therefore, in particular, the goods or services must be precisely identified at the time the payment on account is made ( BUPA Hospitals and Goldsborough Developments , paragraph 48, and Case C-520/10 Lebara  [2012] ECR, paragraph 26). Therefore, payments on account of supplies of goods or services that have not yet been clearly identified cannot be subject to VAT ( BUPA Hospitals and Goldsborough Developments , paragraph 50, and Case C-270/09 MacDonald Resorts [2010] ECR I-13179, paragraph 31).
32. However, it is settled case-law that a provision of secondary Community law should as far as possible be given the interpretation which renders the provision consistent with the Treaty and the general principles of EU law (Case C-314/89 Rauh  [1991] ECR I-1647, paragraph 17, and Case C-413/06 P Bertelsmann and Sony Corporation of America  v Impala [2008] ECR I-4951, paragraph 174 and the case-law cited).
33. It is also settled case-law that the general principle of equal treatment, of which the principle of fiscal neutrality is a particular expression at the level of secondary EU law and in the specific area of taxation, requires similar situations not to be treated differently unless differentiation is objectively justified (Case C-309/06 Marks & Spencer  [2008] ECR I-2283, paragraphs 49 and 51, and Case C-174/08 NCC Construction Danmark  [2009] ECR I-10567, paragraph 44).
34. Thus, the principle of fiscal neutrality, which is a fundamental principle of the common system of VAT, precludes treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes and, further, precludes economic operators who carry out the same activities from being treated differently as far as the levying of VAT is concerned (see, inter alia, Case C-29/08 SKF  [2009] ECR I-10413, paragraph 67 and the case-law cited).
35. Furthermore, the Court has held previously that barter contracts, under which the consideration is by definition in kind, and transactions for which the consideration is in money are, economically and commercially speaking, two identical situations (see, to that effect, Case C-330/95 Goldsmiths  [1997] ECR I-3801, paragraphs 23 and 25).
36. It follows that the principle of equal treatment would be disregarded if the application of Article 65 of the VAT Directive contributed to which form was taken by the consideration received by the taxable person. Accordingly, that principle calls for an interpretation of Article 65 to the effect that it applies also when the payment on account is made in kind, once the conditions referred to in paragraph 28 above are met. It is necessary, however, that that value of that payment on account may be expressed in monetary terms. According to settled case-law, the consideration for a supply of services may consist of a supply of goods, and so constitute the taxable amount within the meaning of Article 73 of the VAT Directive, if there is a direct link between the supply of services and the supply of goods and if the value of those goods can be expressed in monetary terms (see, to that effect, Case C-380/99 Bertelsmann  [2001] ECR I-5163, paragraph 17 and the case-law cited).
37. The fact that the establishment of the building right at issue in the main proceedings represents the entire consideration, and not only part thereof, for the construction services which Orfey undertook to perform does not cast doubt on such an interpretation. Firstly, Article 65 provides that VAT becomes chargeable ‘on the amount received’. The wording of that provision does not, therefore, preclude the amount received from equalling the entire consideration for the supply of services on which the VAT becomes chargeable. Furthermore, as observed by the Court previously, in the explanatory memorandum to the proposal for the Sixth Council Directive on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, COM(73) 950 final of 20 June 1973 ( Bulletin of the European Communities , supplement 11/73, p. 13), henceforth replaced by the VAT Directive, the Commission observed that ‘… receipt of [payments on account] gives rise to a charge to tax, since the parties to the transaction in this way demonstrate their intention that all the financial consequences of the chargeable event should arise in advance’ ( BUPA Hospitals and Goldsborough Developments , paragraph 49). That is also precisely the case when the payment on account amounts to the entire consideration agreed upon.
39. Lastly, it should be noted that, in order to determine whether the conditions for chargeability of the VAT owing on such a future supply of services are satisfied, it does not matter whether the consideration for that future supply of services itself constitutes a transaction which is subject to VAT. Under the case-law referred to in paragraphs 28 and 36 above, in order for the VAT owing on such a future supply of services to become chargeable in circumstances such as those present in the main proceedings, it is sufficient that all the relevant information concerning that future supply of services is already known and that the value of the corresponding consideration may be expressed in monetary terms.
44. It is settled case-law that the taxable amount for the supply of goods or services effected for consideration is represented by the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria. In addition, that consideration must be capable of being expressed in monetary terms (see, to that effect, Case C-40/09 Astra Zeneca UK  [2010] ECR I-7505, paragraph 28 and the case-law cited).
45. Where that value is not a sum of money agreed between the parties, it must, in order to be subjective, be the value which the recipient of the services constituting the consideration for the supply of goods attributes to the services which he is seeking to obtain and must correspond to the amount which he is prepared to spend for that purpose (Case C-33/93 Empire Stores [1994] ECR I-2329, paragraph 19).
47. Moreover, the conditions of application laid down in that provision are exhaustive and, consequently, national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of the transaction in cases other than those listed in that provision (Joined Cases C-621/10 and C-129/11 Balkan and Sea Properties [2012] ECR, paragraph 51).
51. According to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time-limit or has transposed it incorrectly (see Joined Cases C-397/01 to C-403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 103, and Joined Cases C-55/11, C-57/11 and C-58/11 Vodafone España  [2012] ECR, paragraph 37).
52. The Court has held previously that Article 10(2) 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 (OJ 1977 L 145, p. 1), now Article 63 of the VAT Directive, meets those criteria (see, to that effect, Case C-10/92 Balocchi  [1993] ECR I-5105, paragraphs 34 and 35). It has held the same in respect of Article 73 of the VAT Directive ( Balkan and Sea Properties , paragraph 61).