Vega International Car Transport and Logistic – Trading GmbH v Dyrektor Izby Skarbowej w Warszawie.
Date: 2019-05-15
24


As a preliminary point, it should be noted that the provisions of Directive 2006/112 which are relevant in the context of the case in the main proceedings are, in essence, identical to the equivalent provisions of the Sixth Directive. In those circumstances, the case-law relating to those provisions of the Sixth Directive is still relevant in interpreting the equivalent provisions of Directive 2006/112 (see, in particular, judgment of 28 July 2016, Astone, C‑332/15, EU:C:2016:614, paragraph 27).
27


In that regard, according to settled case-law, the concept of a ‘supply of goods’ referred to in Article 5(1) of the Sixth Directive and Article 14(1) of Directive 2006/112 does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law, but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he were its owner (judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe, C‑320/88, EU:C:1990:61, paragraph 7; of 14 July 2005, British American Tobacco and Newman Shipping, C‑435/03, EU:C:2005:464, paragraph 35; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 51; of 3 June 2010, De Fruytier, C‑237/09, EU:C:2010:316, paragraph 24; and of 18 July 2013, Evita-K, C‑78/12, EU:C:2013:486, paragraph 33).
28


The Court has also held that that concept is objective in nature and that it applies without regard to the purpose or results of the transactions concerned and without its being necessary for the tax authorities to carry out inquiries to determine the intention of the taxable person in question or for them to take account of the intention of a trader other than that taxable person involved in the same chain of supply (judgment of 21 November 2013, Dixons Retail, C‑494/12, EU:C:2013:758, paragraph 21 and the case-law cited).
30


In those circumstances, in order to answer the question raised by the referring court, it is necessary to determine whether, in the case in the main proceedings, the oil companies actually transferred to Vega International or Vega Poland the right to dispose of the fuel as owner (see, to that effect, judgment of 6 February 2003, Auto Lease Holland, C‑185/01, EU:C:2003:73, paragraph 33).
32


In that judgment, the Court considered that it is common ground that it is indeed the lessee who is empowered to dispose of the fuel as if he were its owner, because he obtains the fuel directly at filling stations and the lessor does not at any time have the right to decide either the way in which the fuel must be used or the purposes of that use (see, to that effect, judgment of 6 February 2003, Auto Lease Holland, C‑185/01, EU:C:2003:73, paragraph 34).
33


In addition, according to the Court, in such a scenario, the supplies have been effected at the leasing company’s expense only ostensibly. The monthly payments made to that company constitute only an advance, and the actual consumption, established at the end of the year, is the financial responsibility of the lessee, who, consequently, wholly bears the costs of the supply of fuel (judgment of 6 February 2003, Auto Lease Holland, C‑185/01, EU:C:2003:73, paragraph 35).
34


The Court concluded from this that the fuel management agreement concluded between the leasing company and the lessee is not a contract for the supply of goods, namely fuel, by the leasing company, but rather a contract to finance the purchase thereof. According to the Court, the leasing company does not purchase the fuel in order subsequently to resell it to the lessee; the lessee purchases the fuel, having a free choice as to its quality and quantity, as well as the date of purchase. Accordingly, the leasing company acts, in fact, as a supplier of credit vis-à-vis the lessee (judgment of 6 February 2003, Auto Lease Holland, C‑185/01, EU:C:2003:73, paragraph 36).
36


In particular, it should be pointed out that, in the present case, Vega International does not dispose of the fuel in respect of the purchase of which it seeks reimbursement of VAT as if it were the owner. That fuel is purchased by Vega Poland directly from the suppliers and at its sole discretion. Accordingly, Vega Poland decides on, in particular, the fuel purchasing arrangements in so far as it may choose, from among the service stations of the suppliers indicated by Vega International, which service station to refuel at and may freely decide on the quality, quantity and type of fuel, as well as when to purchase and how to use it (see, to that effect, judgment of 16 April 2015, Wojskowa Agencja Mieszkaniowa w Warszawie, C‑42/14, EU:C:2015:299, paragraph 26).
43


In that regard, it should be borne in mind that the transactions exempted under that provision are defined in terms of the nature of the services provided and not in terms of the person supplying or receiving the service, so that the application of those exemptions is not dependent on the status of the entity providing those services (see, to that effect, judgments of 4 May 2006, Abbey National, C‑169/04, EU:C:2006:289, paragraph 66, and of 21 June 2007, Ludwig, C‑453/05, EU:C:2007:369, paragraph 25).
44


Regarding, in particular, the expression ‘the granting and the negotiation of credit’ used in that provision, that expression must be interpreted broadly, so that its scope cannot be limited only to loans and credit granted by banking and financial institutions (see, to that effect, judgments of 27 October 1993, Muys’ en De Winter’s Bouw- en Aannemingsbedrijf, C‑281/91, EU:C:1993:855, paragraph 13; of 22 October 2015, Hedqvist, C‑264/14, EU:C:2015:718, paragraph 37; and of 18 October 2018, Volkswagen Financial Services (UK), C‑153/17, EU:C:2018:845, paragraph 35).
45


That interpretation is borne out by the objective of the common system introduced by Directive 2006/112, which aims, in particular, to secure equal treatment for taxable persons (see, in particular, judgment of 27 October 1993, Muys’ en De Winter’s Bouw- en Aannemingsbedrijf, C‑281/91, EU:C:1993:855, paragraph 14).
47


In the present case, as has been recalled in paragraph 14 above, it is common ground that all the transactions carried out by means of fuel cards provided by Vega International to its subsidiaries, including Vega Poland, are centralised by the parent company in Austria, which receives invoices from the fuel suppliers establishing, in particular, the purchase of fuel with VAT. Next, at the end of each month, Vega International passes on the costs of the fuel made available for the purpose of the supply of the vehicle transportation service, together with a surcharge of 2%, to its subsidiaries. Lastly, it is for its subsidiaries either to offset the invoices relating to the use of the fuel cards with invoices issued to the Austrian company or to settle those invoices within one to three months of their receipt.
48


It must be held that, by applying that surcharge of 2% to Vega Poland, Vega International receives a payment for the service provided to its Polish subsidiary. Vega International thus provides a financial service to Vega Poland by financing in advance the purchase of fuel and therefore acts, for that purpose, in the same way as an ordinary financial or credit institution.
49


In those circumstances, it must be found that the provision, by Vega International, of fuel cards to Vega Poland constitutes a genuine financial transaction which is akin, more specifically, to the granting of credit for the purposes of Article 135(1)(b) of Directive 2006/112 (see, to that effect, judgment of 18 October 2018, Volkswagen Financial Services (UK), C‑153/17, EU:C:2018:845, paragraph 36).