Gunter Berkholz v Finanzamt Hamburg-Mitte-Altstadt.
Date: 1985-07-04
14 THE FINANZGERICHT ' S FIRST QUESTION MUST BE ANSWERED IN THE LIGHT OF THE OBJECTIVE PURSUED BY ARTICLE 9 WITHIN THE CONTEXT OF THE GENERAL SCHEME OF THE SIXTH DIRECTIVE . AS THE SEVENTH RECITAL IN THE PREAMBLE IMPLIES , ARTICLE 9 IS DESIGNED TO SECURE THE RATIONAL DELIMITATION OF THE RESPECTIVE AREAS COVERED BY NATIONAL VALUE-ADDED TAX RULES BY DETERMINING IN A UNIFORM MANNER THE PLACE WHERE SERVICES ARE DEEMED TO BE PROVIDED FOR TAX PURPOSES . ARTICLE 9 ( 2 ) SETS OUT A NUMBER OF SPECIFIC INSTANCES OF PLACES WHERE CERTAIN SERVICES ARE DEEMED TO BE SUPPLIED , WHILST ARTICLE 9 ( 1 ) LAYS DOWN THE GENERAL RULE ON THE MATTER . THE OBJECT OF THOSE PROVISIONS IS TO AVOID , FIRST , CONFLICTS OF JURISDICTION , WHICH MAY RESULT IN DOUBLE TAXATION , AND , SECONDLY , NON-TAXATION , AS ARTICLE 9 ( 3 ) INDICATES , ALBEIT ONLY AS REGARDS SPECIFIC SITUATIONS .
16 SINCE THIS CASE CONCERNS SERVICES SUPPLIED ON BOARD SEA-GOING SHIPS , IT IS APPROPRIATE FIRST OF ALL TO DETERMINE THE TERRITORIAL SCOPE OF THE DIRECTIVE . IN ACCORDANCE WITH THE PRINCIPLE LAID DOWN IN ARTICLE 3 OF THE DIRECTIVE , WHICH PROVIDES THAT THE ' ' ' TERRITORY OF THE COUNTRY ' '  SHALL BE THE AREA OF APPLICATION OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY AS STIPULATED IN RESPECT OF EACH MEMBER STATE IN ARTICLE 227 ' , THE TERRITORIAL SCOPE OF THE DIRECTIVE COINCIDES , IN THE CASE OF EACH MEMBER STATE , WITH THE SCOPE OF ITS VALUE-ADDED TAX LEGISLATION . AS THE DANISH GOVERNMENT CORRECTLY CONTENDS , ARTICLE 9 DOES NOT RESTRICT THE MEMBER STATES '  FREEDOM TO TAX SERVICES PROVIDED OUTSIDE THEIR TERRITORIAL JURISDICTION ON BOARD SEA-GOING SHIPS OVER WHICH THEY HAVE JURISDICTION . CONTRARY TO THE VIEW OF THE APPLICANT IN THE MAIN PROCEEDINGS , SUPPORTED BY THE COMMISSION , THE SIXTH DIRECTIVE BY NO MEANS REQUIRES SERVICES SUPPLIED ON THE HIGH SEAS , OR , MORE GENERALLY , OUTSIDE THE SOVEREIGN TERRITORY OF THE STATE HAVING JURISDICTION OVER THE VESSEL , TO BE EXEMPTED FROM TAX IRRESPECTIVE OF THE PLACE WHERE THOSE SERVICES ARE DEEMED TO BE SUPPLIED - THE PLACE WHERE THE SUPPLIER HAS ESTABLISHED HIS BUSINESS OR SOME OTHER FIXED ESTABLISHMENT .
17 EQUALLY , IT IS FOR THE TAX AUTHORITIES IN EACH MEMBER STATE TO DETERMINE FROM THE RANGE OF OPTIONS SET FORTH IN THE DIRECTIVE WHICH POINT OF REFERENCE IS MOST APPROPRIATE TO DETERMINE TAX JURISDICTION OVER A GIVEN SERVICE . ACCORDING TO ARTICLE 9 ( 1 ), THE PLACE WHERE THE SUPPLIER HAS ESTABLISHED HIS BUSINESS IS A PRIMARY POINT OF REFERENCE INASMUCH AS REGARD IS TO BE HAD TO ANOTHER ESTABLISHMENT FROM WHICH THE SERVICES ARE SUPPLIED ONLY IF THE REFERENCE TO THE PLACE WHERE THE SUPPLIER HAS ESTABLISHED HIS BUSINESS DOES NOT LEAD TO A RATIONAL RESULT FOR TAX PURPOSES OR CREATES A CONFLICT WITH ANOTHER MEMBER STATE .
18 IT APPEARS FROM THE CONTEXT OF THE CONCEPTS EMPLOYED IN ARTICLE 9 AND FROM ITS AIM , AS STATED ABOVE , THAT SERVICES CANNOT BE DEEMED TO BE SUPPLIED AT AN ESTABLISHMENT OTHER THAN THE PLACE WHERE THE SUPPLIER HAS ESTABLISHED HIS BUSINESS UNLESS THAT ESTABLISHMENT IS OF A CERTAIN MINIMUM SIZE AND BOTH THE HUMAN AND TECHNICAL RESOURCES NECESSARY FOR THE PROVISION OF THE SERVICES ARE PERMANENTLY PRESENT . IT DOES NOT APPEAR THAT THE INSTALLATION ON BOARD A SEA-GOING SHIP OF GAMING MACHINES , WHICH ARE MAINTAINED INTERMITTENTLY , IS CAPABLE OF CONSTITUTING SUCH AN ESTABLISHMENT , ESPECIALLY IF TAX MAY APPROPRIATELY BE CHARGED AT THE PLACE WHERE THE OPERATOR OF THE MACHINES HAS HIS PERMANENT BUSINESS ESTABLISHMENT .
21 IT APPEARS FROM ALL OF THE PROVISIONS CITED THAT THE ONLY SERVICES EXEMPTED UNDER ARTICLE 15 ( 8 ) ARE THOSE WHICH ARE DIRECTLY CONNECTED WITH THE NEEDS OF SEA-GOING VESSELS OR THEIR CARGOES , THAT IS TO SAY SERVICES NECESSARY FOR THE OPERATION OF SUCH VESSELS . THE INSTALLATION OF GAMING MACHINES WHOSE OBJECT IS TO ENTERTAIN PASSENGERS AND WHICH THEMSELVES HAVE NO INTRINSIC CONNECTION WITH NAVIGATIONAL REQUIREMENTS CANNOT BE CLASSED AS SUCH .