Design Concept SA v Flanders Expo SA.
Date: 2003-06-05
14.  In that regard, it should be remembered that it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see,   inter alia  , Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 38).
15.  Thus, in the present case the answer to the sole question referred must proceed from the premiss taken as a basis by the national court, namely that the services in question in the main proceedings are advertising services. Nevertheless, in so far as that premiss is based on a finding that the Cour de cassation itself describes as   "prima facie"  , it is necessary to point out that the notion of   "advertising services"   referred to in the second indent of Article 9(2)(e) of the Sixth Directive is a Community law concept which must be interpreted uniformly (see,   inter alia  , Case C-69/92   Commission   v   Luxembourg   [1993] ECR I-5907, paragraph 15) and that it will be for the national court, where necessary, to determine the classification of the services concerned in the light of the case-law of the Court.
The question referred for a preliminary ruling
17.  In accordance with the case-law of the Court, the second indent of Article 9(2)(e) of the Sixth Directive must be interpreted as applying not only to advertising services supplied directly and invoiced by the supplier to a taxable advertiser, but also to services supplied indirectly to the advertiser and invoiced to a third party who in turn invoices them to the advertiser (Case C-108/00   SPI   [2001] ECR I-2361, paragraph 22).
18.  It follows that the indirect nature of the services, resulting from the fact that they were supplied and invoiced by a first supplier to an undertaking, which was itself commissioned to perform advertising services, before being invoiced by that undertaking to the advertiser, does not constitute an obstacle to the application of Article 9(2)(e) of the Sixth Directive.
The second part of thequestion
23.  Moreover, according to the fundamental principle which underlies the VAT system, VAT applies to each transaction by way of supply of goods or services after deduction has been made of the VAT which has been levied directly on transactions relating to inputs (see, in particular, Case C-62/93   BP Supergas   [1995] ECR I-1883, paragraph 16).
26.  Under Article 9(1) and (2), the determination of the place where a service is supplied depends solely on the place where the supplier and the recipient of the service in question are established. That article in no way requires account to be taken of transactions carried out after that first supply of services.
28.  It follows that in a case of an indirect supply of services, such as that at issue in the main proceedings, involving a first supplier of services, an intermediate customer and an advertiser who receives services from the intermediate customer, the transaction by way of supply of services effected by the first supplier to the intermediate customer must be considered separately, for the purpose of determining the place of taxation of that transaction. The rule laid down in the second indent of Article 9(2)(e) of the Sixth Directive applies, as a rule, if the intermediate customer, as recipient of the advertising services, is a taxable person established in a Member State other than that in which the first supplier is based. It is not necessary to determine whether the advertiser, who is the final recipient of the services, is also a taxable person who includes the cost of those services in the price of goods or services supplied by him.