QM v Finanzamt Saarbrücken.
Date: 2021-01-20
Since such a condition is a priori not satisfied in the case in the main proceedings, the act of making the vehicles in question available must be regarded not as a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112, but as a ‘supply of services’ within the meaning of Article 24(1) thereof, which states that any transaction which does not constitute a supply of goods within the meaning of Article 14 of that directive is to be regarded as a supply of services (see, to that effect, judgment of 29 July 2010, Astra Zeneca UK, C‑40/09, EU:C:2010:450, paragraph 26).
However, it follows from settled case-law that a supply of services is effected ‘for consideration’ within the meaning of Article 2(1)(c) of Directive 2006/112, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. That is the case if there is a direct link between the service supplied and the consideration received (see, to that effect, judgment of 11 March 2020, San Domenico Vetraria, C‑94/19, EU:C:2020:193, paragraph 21 and the case-law cited).
Such a direct link may be given concrete expression, in the employer-employee relationship, by the employee being required to give up a part of his or her cash remuneration as consideration for a service provided by the employer (see, to that effect, judgments of 16 October 1997, Fillibeck, C‑258/95, EU:C:1997:491, paragraphs 14 and 15, and of 29 July 2010, Astra Zeneca UK, C‑40/09, EU:C:2010:450, paragraph 29).
Since Directive 2006/112 does not define the concept of the ‘hiring of a means of transport’ for the purposes of the first subparagraph of Article 56(2) thereof and makes no reference to the law of the Member States in that regard, that concept constitutes an autonomous concept of EU law that must be interpreted uniformly throughout the European Union, irrespective of characterisation in the Member States (see, by analogy, judgment of 9 July 2020, AJPF Caraş-Severin and DGRFP Timişoara, C‑716/18, EU:C:2020:540, paragraph 30).
According to the settled case-law of the Court, the ‘letting of immovable property’ within the meaning of point (b) of Article 13B of the Sixth Directive presupposes that several conditions are satisfied, that is to say, the landlord of property must have conferred on the tenant, in return for rent and for an agreed period, the right to occupy the property and to exclude any other person from enjoyment of such a right (see, to that effect, judgments of 4 October 2001, ‘Goed Wonen’, C‑326/99, EU:C:2001:506, paragraph 55, and of 18 July 2013, Medicom and Maison Patrice Alard, C‑210/11 and C‑211/11, EU:C:2013:479, paragraph 26 and the case-law cited).
Regarding the condition that there must be rent, it should be observed that the absence of rent being paid cannot be compensated for by the fact that, for income tax purposes, the private use of goods forming part of the assets of the business in question is viewed as constituting a benefit in kind and therefore, in some way, as part of the remuneration which the beneficiary has given up as consideration for the goods in question being made available to him or her (see, to that effect, judgment of 18 July 2013, Medicom and Maison Patrice Alard, C‑210/11 and C‑211/11, EU:C:2013:479, paragraph 28).
Indeed, it follows from case-law that the concept of rent for the purpose of applying the first subparagraph of Article 56(2) of Directive 2006/112 cannot be interpreted by analogy by equating a benefit in kind to that concept, and that it presupposes the existence of a rent that is to be paid in money (see, to that effect, judgment of 18 July 2013, Medicom and Maison Patrice Alard, C‑210/11 and C‑211/11, EU:C:2013:479, paragraphs 29 and 34).
By contrast, it is for the referring court to ascertain whether there is a ‘genuine agreement’ between those persons as to the duration of the right of enjoyment and the right to use the goods and to exclude other persons from such use, as has been held with regard to accommodation (see, by analogy, judgments of 8 May 2003, Seeling, C‑269/00, EU:C:2003:254, paragraph 51, and of 29 March 2012, BLM, C‑436/10, EU:C:2012:185, paragraph 29).
That interpretation is borne out by the underlying logic of the provisions of Directive 2006/112 concerning the place where a service is deemed to be supplied, according to which goods and services should be taxed as far as possible at the place of consumption (see, to that effect, judgment of 13 March 2019, Srf konsulterna, C‑647/17, EU:C:2019:195, paragraph 29), which corresponds, under the first subparagraph of Article 56(2) of that directive, to the place where the non-taxable person to whom the vehicle is hired is established, has his or her permanent address or usually resides.