Welmory sp. z o.o. v Dyrektor Izby Skarbowej w Gdańsku.
Date: 2014-10-16
33. In accordance with settled case-law of the Court, in the context of the cooperation between the Court and the national courts provided for by Article 267 TFEU, 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 before it, 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. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties to the main proceedings may not change their tenor (see, inter alia, judgment in Danske Svineproducenter , C‑316/10, EU:C:2011:863, paragraph 32 and the case-law cited).
34. In addition, to alter the substance of the questions referred for a preliminary ruling, or to answer additional questions mentioned by the parties, would be incompatible with the Court’s duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union, bearing in mind the fact that, under that provision, only the decision of the referring court is notified to the interested parties (see, to that effect, judgment in Danske Svineproducenter , EU:C:2011:863, paragraph 33 and the case-law cited).
37. The VAT Directive, in common with the Sixth Directive which it replaced, contains a Title V dealing with the place of taxable transactions. Chapter 3 of that title relates to the place of supply of services, and sections 2 and 3 of that chapter set out respectively the general rules for determining the place of taxation of those supplies and particular provisions relating to specific supplies of services.
38. Like Article 9 of the Sixth Directive, Articles 44 to 59b of the VAT Directive contain rules which determine the point of reference for tax purposes. Thus, while Article 9(1) of the Sixth Directive laid down general rules in that regard, such rules are also laid down by Articles 44 and 45 of the VAT Directive. Similarly, Articles 46 to 59b of the VAT Directive, like Article 9(2) and (3) of the Sixth Directive, set out a number of specific places of reference.
41. It should be recalled that, when interpreting a provision of EU law, it is necessary to consider not only the wording of the provision but also the context in which it occurs and the objective pursued by the rules of which it forms part (judgment in ADV Allround , C‑218/10, EU:C:2012:35, paragraph 26 and the case-law cited).
42. In accordance with settled case-law of the Court, the object of the provisions determining the point of reference for tax purposes of supplies of services is to avoid, first, conflicts of jurisdiction which may result in double taxation and, secondly, non-taxation (see, to that effect, judgment in ADV Allround , EU:C:2012:35, paragraph 27 and the case-law cited).
50. In this connection, it must be recalled, as is apparent from paragraph 42 above, that a provision such as Article 44 of the VAT Directive is a rule determining the place of taxation of supplies of services by designating the point of reference for tax purposes, and consequently delimiting the competences of the Member States.
51. For that purpose, that provision aims to create a rational delimitation of the respective areas covered by national rules on VAT by determining in a uniform manner the point of reference for tax purposes of supplies of services.
53. According to the settled case-law of the Court on Article 9 of the Sixth Directive, the most appropriate, and thus the primary, point of reference for determining the place of supply of services for tax purposes is the place where the taxable person has established his business. It is only if that place of business does not lead to a rational result or creates a conflict with another Member State that another establishment may come into consideration (see, inter alia, judgments in Berkholz , 168/84, EU:C:1985:299, paragraph 17; Faaborg-Gelting Linien , C‑231/94, EU:C:1996:184, paragraph 16; and ARO Lease , C‑190/95, EU:C:1997:374, paragraph 15).
54. That interpretation is also valid in relation to Article 44 of the VAT Directive.
55. As was the case under the Sixth Directive, the place where the taxable person has established his business as primary point of reference appears to be a criterion that is objective, simple and practical and offers great legal certainty, being easier to verify than, for example, the existence of a fixed establishment. Moreover, the presumption that the services are supplied at the place where the taxable person receiving them has established his business makes it possible both for the competent authorities of the Member States and for suppliers of services to avoid having to undertake complex investigations in order to determine the point of reference for tax purposes.
56. Furthermore, the place of business is mentioned in the first sentence of Article 44 of the VAT Directive, whereas the fixed establishment is mentioned only in the following sentence. That sentence, introduced by the adverb ‘however’, can only be understood as creating an exception to the general rule set out in the previous sentence.
The concept of fixed establishment
58. It may be deduced from the Court’s case-law on the point (see, in particular, judgment in Planzer Luxembourg , C‑73/06, EU:C:2007:397, paragraph 54 and the case-law cited), which directly inspired the wording of Article 11 of the Implementing Regulation, that a fixed establishment must be characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to receive and use the services supplied to it for its own needs.