Campsa Estaciones de Servicio SA v Administración del Estado.
Date: 2011-06-09
25. In that regard, it should be borne in mind, first, that the possibility of classifying a transaction as ‘a transaction for consideration’ within the meaning of Article 2 of the Sixth Directive requires only that there be a direct link between the supply of goods or the provision of services and the consideration actually received by the taxable person. Thus, the fact that the price paid for an economic transaction is higher or lower than the cost price, and, therefore, higher or lower than the open market value, is irrelevant as regards that classification (see, to that effect, Case C‑412/03 Hotel Scandic Gåsabäck [2005] ECR I‑743, paragraph 22). The same applies to the connection which might exist between the parties to the transaction.
26. Second, under the terms of Articles 5(6) and (7) and 6(2) and (3) of the Sixth Directive, which treat certain transactions for which no consideration is actually received by the taxable person as transactions effected for consideration, there is no reason to apply the rules determining the taxable amount laid down in Article 11A(1)(b), (c) and (d) of the Sixth Directive except to transactions effected free of charge (see, to that effect, Hotel Scandic Gåsabäck , paragraph 24).
27. It follows that, where consideration has been agreed and actually paid to the taxable person in direct exchange for the goods he has delivered or the service he has provided, that transaction must be classified as a transaction for consideration, regardless of whether it is effected between connected parties and the price agreed and actually paid is patently lower than the open market price. The taxable amount of such a transaction must, therefore, be determined in accordance with the general rule stated in Article 11A(1)(a) of the Sixth Directive.
28. According to settled case-law, in accordance with that general rule, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria. Moreover, that consideration must be capable of being expressed in money ( Hotel Scandic Gåsabäck , paragraph 21 and case-law cited).
29. In that regard it is true, as the Spanish Government pointed out, that the principle of equal treatment, of which the principle of tax neutrality is a specific expression at the level of secondary European Union law and in the specific area of taxation, requires similar situations not to be treated differently unless differentiation is objectively justified (Case C‑309/06 Marks & Spencer [2008] ECR I‑2283, paragraphs 49 and 51, and Case C‑174/08 NCC Construction Danmark  [2009] ECR I‑10567, paragraph 44).
31. Moreover, it should also be borne in mind in that regard that the European Union legislature provided that, in accordance with the provisions of Article 27 of the Sixth Directive, Member States may, if required, be authorised to derogate from the rules in that directive and in particular from that in Article 11A(1)(a) thereof (see, inter alia, Hotel Scandic Gåsabäck , paragraph 26).
32. However, the Court has already held that new specific measures, derogating from the Sixth Directive, do not accord with European Union law unless they remain within the limits of the objectives referred to in Article 27(1) of that directive and have also been notified to the Commission and impliedly or expressly authorised by the Council in the circumstances specified in subparagraphs (1), (2), (3) and (4) of Article 27 (Case C‑5/84 Direct Cosmetics [1985] ECR I‑617, paragraph 24, and Case C‑62/93 BP Soupergaz  [1995] ECR I‑1883, paragraph 22). Moreover, a Member State may not rely, as against a taxable person, on a provision derogating from the scheme of the Sixth Directive and enacted in breach of the duty of notification imposed by Article 27(2) of that directive without infringing the Treaty establishing the European Community (now the Treaty on the Functioning of the European Union) (see, to that effect, Direct Cosmetics , paragraph 37, and Case C‑494/04 Heintz van Landewijck [2006] ECR I‑5381, paragraph 48).
34. In the case of accession, a reference to a date laid down in European Union law, in the absence of a provision to the contrary in the Act of Accession or some other European Union document, also applies to the acceding State, even if that date is prior to the date of its accession (Case C‑366/05 Optimus – Telecomunicações  [2007] ECR I‑4985, paragraph 32). As regards the Kingdom of Spain, the date of 1 January 1977 has not been amended either by the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23) or by any other document. It may not therefore be considered that a provision such as Article 79(5) of Law 37/1992 could fall within the scope of Article 27(5) of the Sixth Directive.
36. It is true, as the Spanish Government indicated at the hearing, that the Court held, in paragraph 50 of Heintz van Landewijck , that late notification of a derogating measure cannot entail the same consequences, in respect of enforceability, as a failure to notify. However, that assertion, first, concerned a situation in which the derogating measure in question fell within the scope of Article 27(5) of the Sixth Directive, a situation which the Court distinguished from that of a measure falling within Article 27(1), and had been notified in breach of the deadline for notification established in Article 27(5) of the Sixth Directive but prior to the facts giving rise to the dispute brought before the national court, and secondly was responding to the question whether such a derogating measure should remain inapplicable even after that late notification (see Heintz van Landewijck , paragraphs 47 to 51).
38. It should also be borne in mind that the risk of tax evasion, which, according to the Spanish Government, Article 79(5) of Law 37/1992 aimed to combat, may be dealt with only by a request by the Member State concerned under Article 27 of the Sixth Directive to introduce measures derogating from that directive in order to prevent certain types of tax evasion or avoidance (see, to that effect, Hotel Scandic Gåsabäck , paragraph 26), a request which was only made following the events in the main proceedings.