Lease Plan Luxembourg SA v Belgian State.
Date: 1998-05-07
21 It must first be noted that, following the judgment of 17 July 1997 in Case C-190/95 ARO Lease v Inspecteur der Belastingdienst Grote Ondernemingen, Amsterdam [1997] ECR I-4383, the parties to the main proceedings accepted at the hearing that Lease Plan did not, during the period to which the refund of VAT sought relates, have any fixed establishment in Belgium from which it supplied services.
22 It must next be pointed out that, as the Court noted at paragraph 12 of its judgment in ARO Lease, the fourth recital in the preamble to the Tenth Directive states `... as regards the hiring out of forms of transport, Article 9(1) [of the Sixth Directive] should, for reasons of control, be strictly applied, the place where the supplier has established his business being treated as the place of supply of such services'.  Such a consideration is, moreover, confirmed by Article 9(2)(e) of the Sixth Directive, as amended by the Tenth Directive.
23 As the Court stressed at paragraph 14 of the same judgment, since forms of transport may easily cross frontiers, it is difficult, if not impossible, to determine the place of their utilisation and in each case a practical criterion must therefore be laid down for charging VAT. Consequently, for the hiring out of all forms of transport, the Sixth Directive provided that the service should be deemed to be supplied not at the place where the goods hired out are used but, with a view to simplification and in conformity with the general rule, at the place where the supplier has established his business (Case 51/88 Hamann v Finanzamt Hamburg-Eimsbüttel [1989] ECR 767, paragraphs 17 and 18).
24 The Court further pointed out, at paragraph 15 of the ARO Lease judgment, that the place where the supplier has established his business is a primary point of reference inasmuch as there is no purpose in referring to another establishment from which the services are supplied unless reference to the main place of business does not lead to a rational result for tax purposes or creates a conflict with another Member State.  Consequently, as the Court held at paragraph 16 of the same judgment, for a supply of services, reference to an establishment other than the main place of business is possible only if that establishment possesses 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.
25 In that regard, the Court noted at paragraph 18 of ARO Lease that the services supplied in the leasing of vehicles consist principally in negotiating, drawing up, signing and administering the relevant agreements and in making the vehicles concerned, which remain the property of the leasing company, physically available to customers.
26 At paragraph 19 of the same judgment, the Court concluded that when a leasing company does not possess in a Member State either its own staff or a structure which has a sufficient degree of permanence to provide a framework in which agreements may be drawn up or management decisions taken and thus to enable the services in question to be supplied on an independent basis, it cannot be regarded as having a fixed establishment in that State.
27 That is also the situation in the main proceedings in the present case, as Lease Plan does not possess in Belgium either its own staff or a structure which has a sufficient degree of permanence.
28 Moreover, as the Court stated at paragraph 20 of the ARO Lease judgment, it is clear from both the wording and the aim of Article 9(1) and 9(2)(e) of the Sixth Directive, as amended, and from the judgment in Hamann, cited above, that neither the physical placing of vehicles at customers' disposal under leasing agreements nor the place at which they are used can be regarded as a clear, simple and practical criterion, in accordance with the spirit of the Sixth Directive, on which to base the existence of a fixed establishment.
34 However, it is settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (see, inter alia, Case C-279/93 Finanzamt Köln-Altstadt v Schumacker [1995] ECR I-225, paragraph 30).