Minister Finansów v Wojskowa Agencja Mieszkaniowa w Warszawie.
Date: 2015-04-16
22. The referring court states that it harbours doubts about this, in the light, in particular, of the judgment in Auto Lease Holland  (C‑185/01, EU:C:2003:73), which concerns the interpretation of Article 5(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 (OJ 1977 L 145, p. 1), now Article 14(1) of the VAT Directive.
24. The Court answered in the negative, pointing out that, under Article 5(1) of Directive 77/388, ‘“[s]upply of goods” shall mean the transfer of the right to dispose of tangible property as owner’. The Court stated that the concept of a supply of goods includes any transaction of a supply of tangible property by a party which empowers the other party to dispose of it as if he were the owner of that property. It held that the oil companies transferred to the lessee of the leased vehicle the right actually to dispose of the fuel as owner and that there was not a supply of fuel by those companies to the lessor of the leased vehicle nor, as a result, from that lessor to the lessee of that vehicle (judgment in Auto Lease Holland , C‑185/01, EU:C:2003:73, paragraphs 31 to 36).
26. In the context of an agreement such as that at issue in the case which gave rise to the judgment in Auto Lease Holland (C‑185/01, EU:C:2003:73), the lessee of the leased vehicle himself purchases the fuel from filling stations and has a free choice as to its quality and quantity, as well as when to purchase. The Court held that the fuel management agreement between the lessor of the leased vehicle and the lessee of that vehicle is not a contract for the supply of fuel, but rather a contract to finance its purchase (judgment in Auto Lease Holland , C‑185/01, EU:C:2003:73, paragraph 36).
27. By contrast, in an agreement such as that at issue in the main proceedings in which the landlord concludes the agreement for the provision of supplies consisting of the provision of utilities and refuse collection, it is the landlord who purchases the services in question for the immovable property which he lets. It is true that the tenant uses those supplies directly, but does not purchase them from specialist third-party suppliers. Accordingly, the considerations relating to the purchase of fuel in the judgment in Auto Lease Holland  (C‑185/01, EU:C:2003:73), which are valid in relation to Article 14(1) of the VAT Directive, do not apply, under a r ental agreement such as that at issue in the main proceedings, either to the supply of electricity, heating and water, which also constitute goods for the purposes of Article 15 of the VAT Directive, or to the supply of services within the meaning of Article 24 of the VAT Directive, such as refuse collection. It follows from the purchase by the landlord of supplies comprising the provision of those goods and services that it is the landlord who must be regarded as providing those supplies to the tenant.
30. It should be recalled, as a preliminary point, that for VAT purposes every supply must normally be regarded as distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (judgments in Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 14, and BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 29).
31. Nevertheless, in accordance with settled case-law of the Court, in certain circumstances, several formally distinct services, which could be supplied separately and thus give rise in turn to taxation or exemption, must be considered to be a single transaction when they are not independent. There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split. Such is also the case where one or several services constitute the principal service, and where the other service or services constitute one or several ancillary services which share the tax treatment of the principal service (judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 30). 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 (judgment in Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 17 and the case-law cited).
32. In order to determine whether the services supplied constitute independent services or a single service it is necessary to examine the characteristic elements of the transaction concerned (judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 32).
34. In the judgment in RLRE Tellmer Property (C‑572/07, EU:C:2009:365), the Court pointed out that, as regards the cleaning of the common parts of an apartment block, the service could be provided in various ways, such as, for example, a third party invoicing the cost of the service direct to the tenants or by the landlord employing his own staff for the purpose or using a cleaning company. In that case, as the service was invoiced separately from the rent by the landlord and the two services could be separated from each other, the Court held that they could not be regarded as constituting a single transaction (judgment in RLRE Tellmer Property , C‑572/07, EU:C:2009:365, paragraphs 22 and 24).
35. In the judgment in Field Fisher Waterhouse (C‑392/11, EU:C:2012:597), the Court ruled that the content of a lease may be a factor of importance. As regards, in that case, a contract for the rent of offices by a law firm, the Court stated that, according to the information available to it, the contract provided that, in addition to the letting of premises, the landlord had to provide the tenant with a number of services resulting in rental charges, non-payment of which could result in termination of the lease. The Court considered that the economic reason for concluding that contract was not only to obtain the right to occupy the premises concerned, but also for the tenant to obtain a number of services. The Court concluded that the lease designated a single supply between the landlord and the tenant. In its analysis, the Court placed itself in the shoes of an average tenant of the commercial premises concerned, that is to say offices for law firms (judgment in Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 23).
37. It follows in particular from the judgment in BGŻ Leasing  (C‑224/11, EU:C:2013:15, paragraphs 44 and 45) that the elements which reflect the interests of the contracting parties, such as, for example, the way in which invoicing and pricing are carried out, may be taken into account to determine the characteristic elements of the transaction concerned. It needs to be assessed, in particular, whether, under the contract, the tenant and the landlord seek, above all, respectively, to obtain and let immovable property, and whether the fact that one party obtains other services provided by the other party is of only secondary importance to them, even if they are necessary for the enjoyment of the property.
40. In this scenario, the mere fact that the non-payment of rental charges allows the landlord to terminate the rental agreement does not prevent the services to which those charges relate from constituting services separate from the letting (see, to that effect, judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 47).
41. Furthermore, the fact that the tenant has the right to obtain those services from the provider of his choice is also not in itself decisive, since the possibility that elements of a single supply may, in other circumstances, be supplied separately is inherent in the concept of a single composite transaction (judgment in Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 26).