Ministre de l'Économie, des Finances et de l'Industrie v Gillan Beach Ltd.
Date: 2006-03-09
14. In that regard, it is to be noted that Article 9 of the Sixth Directive contains rules for determining the place where services are deemed to be supplied for tax purposes. Whereas Article 9(1) lays down a general rule on the matter, Article 9(2) sets out a number of specific instances of places where certain services are deemed to be supplied. The object of those provisions is to avoid, first, conflicts of jurisdiction which may result in double taxation, and, secondly, non-taxation (see Case 168/84 Berkholz  [1985] ECR 2251, paragraph 14; Case C-327/94 Dudda  [1996] ECR I-4595, paragraph 20; Case C-167/95 Linthorst, Pouwels en Scheres  [1997] ECR I-1195, paragraph 10; and Case C-452/03 RAL (Channel Islands) and Others  [2005] ECR I‑3947, paragraph 23).
15. It is appropriate also to note that, in respect of the relationship between Article 9(1) and (2) of the Sixth Directive, the Court has held that Article 9(1) in no way takes precedence over Article 9(2). In every situation, the question which arises is whether that situation is covered by one of the instances mentioned in Article 9(2) of that directive. If not, it falls within the scope of Article 9(1) ( Dudda , paragraph 21; Linthorst, Pouwels en Scheres , paragraph 11; and RAL (Channel Islands) and Others , paragraph 24).
16. It is therefore necessary to determine the scope of Article 9(2) in the light of its purpose, which is set out as follows in the seventh recital in the preamble to the Sixth Directive:
‘… the determination of the place where taxable transactions are effected has been the subject of conflicts concerning jurisdiction as between Member States, in particular as regards supplies of goods for assembly and the supply of services; ... although the place where a supply of services is effected should in principle be defined as the place where the person supplying the services has his principal place of business, that place should be defined as being in the country of the person to whom the services are supplied, in particular in the case of certain services supplied between taxable persons where the cost of the services is included in the price of the goods’.
17. The overall purpose of Article 9(2) of the Sixth Directive is therefore to establish a special system for services provided between taxable persons where the cost of the services is included in the price of the goods.
18. There is a similar purpose underlying the first indent of Article 9(2)(c) of the Sixth Directive, which lays down that the place of the supply of services relating, inter alia, to artistic, sporting and entertainment activities and ancillary services is the place where those services are physically carried out. The Community legislature considered that, in so far as the supplier provides his services in the State in which such services are physically carried out and the organiser of the event charges the final consumer VAT in the same State, the VAT charged on the basis of all those services the cost of which is included in the price of the complete service paid for by that consumer must be paid to that State and not to the State in which the supplier of the service has established his business (see Dudda , paragraph 24).
19. As regards the criteria according to which a specified service is to be regarded as being covered by the first indent of Article 9(2)(c) of the Sixth Directive, no particular artistic or sporting level is required, for example, and it is not only services relating, inter alia, to artistic, sporting and entertainment activities, but also services relating merely to similar activities that fall within its scope (see, to that effect, Dudda , paragraph 25).
20. It is to be noted that Article 9(2) of the Sixth Directive is a rule of conflict which determines the place of taxation of services and, consequently, delimits the powers of the Member States. It follows that ‘similar activities’ is a Community concept which must be interpreted uniformly in order to avoid instances of double taxation or non-taxation (see, to that effect, Case C-68/92 Commission  v France  [1993] ECR I-5881, paragraph 14).
21. In interpreting a provision of Community law, it is necessary to consider not only the wording of that provision but also the context in which it occurs and the objects of the rules of which it is part (see, inter alia, Case C-17/03 VEMW and Others  [2005] ECR I-4983, paragraph 41).
23. In that regard, there are grounds for stating, as do the French Government and the Commission of the European Communities, that the features common to the various categories of services referred to in the first indent of Article 9(2)(c) of the Sixth Directive originate in the complex nature of the services concerned, which are various services, and in the fact that those services are generally provided for a number of different recipients, that is to say, all the people taking part, in a variety of capacities, in cultural, artistic, sporting, scientific, educational or entertainment activities.
24. Those various categories of services also have the common feature that they are usually provided for specific events, and the place where those complex services are physically carried out is easy to identify, as a rule, since such events take place at specific locations.