Planzer Luxembourg Sàrl v Bundeszentralamt für Steuern.
Date: 2007-06-28
34. In that respect, it should be noted that the aim of the Eighth Directive is to establish detailed rules for reimbursement of VAT paid in a Member State by taxable persons established in another Member State and thus to harmonise the right to refund arising from Article 17(3) of the Sixth Directive (see, to that effect, Case C‑136/99 Monte Dei Paschi Di Siena  [2000] ECR I‑6109, paragraph 20, and Case C‑35/05 Reemtsma Cigarettenfabriken  [2007] ECR I-0000, paragraph 26).
35. As is apparent from its second recital, the main aim of that directive is to avoid a taxable person established in a Member State being subjected to double taxation by reason of his having to bear the definitive burden of a tax invoiced to him in another Member State.  As the Commission of the European Communities has stated, the right of a taxable person established in a Member State to obtain refund of VAT paid in another Member State, in the manner governed by the Eighth Directive, is the counterpart of such a persons right established by the Sixth Directive to deduct input VAT in his own Member State.
36. It follows from the sixth recital of the Eighth Directive that its other general objective is to combat certain forms of tax evasion or avoidance (see, to that effect, Case C‑361/96 Grandes sources d’eaux minérales françaises  [1998] ECR I‑3495, paragraph 28).
37. In order to meet that double objective, the Eighth Directive gives the taxable person a right to reimbursement of the input VAT paid in a Member State in which he has neither his business, nor a fixed establishment, nor his permanent address or usual place of residence, and where he has not supplied any goods or services (see, to that effect, Case C‑429/97 Commission  v France  [2001] ECR I‑637, paragraph 28), subject to the production to the tax authority of the Member State in which that reimbursement is applied for (‘the reimbursing Member State’), of a certificate provided by the tax authority of the issuing Member State concerning the capacity of the operator seeking that reimbursement as a taxable person liable to VAT.
43. It should be noted in that respect that taking account of the economic reality constitutes a fundamental criterion for applying the common system of VAT (Case C‑260/95 DFDS  [1997] ECR I‑1005, paragraph 23).
44. It is, moreover, settled case-law that Community law cannot be relied on for abusive or fraudulent ends (in the area of VAT, see, for example, Case C‑32/03 Fini H  [2005] ECR I‑1599, paragraph 32, and Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 68).
47. In such a case, as the Advocate General has pointed out in paragraph 53 of her Opinion, those authorities have the possibility, under Article 6 of the Eighth Directive, to require the taxable person to supply it with the necessary information in order to assess whether the application for refund is well founded (see, to that effect, Monte Dei Paschi Di Siena, paragraph 31), such as information enabling them in principle to assess the economic reality of the establishment referred to in the certificate of status as a taxable person.
49. If the information obtained shows that the address given in the certificate of status as a taxable person does not correspond either to the place of business of the person concerned, or to a fixed establishment from which he carries out his operations, the tax authorities of the refunding Member State are entitled to refuse the refund applied for by that person, without prejudice to any possible legal action by the latter (see, to that effect, concerning fraud or abuse, Fini H , paragraphs 33 and 34; by analogy, in the context of Article 43 EC, see Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 55).
52. As a preliminary point, it should be noted that, for the purposes of the Thirteenth Directive, status as a taxable person not established in Community territory supposes, in particular, that the taxable person did not, during the period referred to in Article 3(1) of that directive, exhibit any of the connecting factors identified in Article 1(1) of that directive.
54. In accordance with well-established case-law in the area of VAT, the term fixed establishment implies a minimum degree of stability derived from the permanent presence of both the human and technical resources necessary for the provision of given services (Case 168/84 Berkholz  [1985] ECR 2251, paragraph 18; DFDS , paragraph 20; Case C‑190/95 ARO Lease  [1997] ECR I‑4383, paragraph 15). It thus requires a sufficient degree of permanence and a structure adequate, in terms of human and technical resources, to supply the services in question on an independent basis ( ARO Lease , paragraph 16).
55. Concerning transport activities in particular, that term implies, for the purposes of applying Community legislation on VAT, at least an office in which contracts may be drawn up and daily management decisions taken, and a place where the vehicles used for the said activities are stored (see, to that effect, ARO Lease , paragraphs 19 and 27, and Case C‑390/96 Lease Plan  [1998] ECR I‑2553, paragraph 26). By contrast, registration of those vehicles in the Member State concerned is not an indicator of a fixed establishment in that Member State (see, to that effect, Lease Plan , paragraphs 21 and 27).
61. Determination of a company’s place of business requires a series of factors to be taken into consideration, foremost amongst which are its registered office, the place of its central administration, the place where its directors meet and the place, usually identical, where the general policy of that company is determined. Other factors, such as the place of residence of the main directors, the place where general meetings are held, the place where administrative and accounting documents are kept, and the place where the company’s financial, and particularly banking, transactions mainly take place, may also need to be taken into account.
62. Thus, a fictitious presence, such as that of a ‘letter box’ or ‘brass plate’ company, cannot be described as a place of business for the purposes of Article 1(1) of the Thirteenth Directive (see, by analogy, Case C‑341/04 Eurofood IFSC  [2006] ECR I‑3813, paragraph 35, and Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 68).