European Commission v Republic of Austria.
Date: 2018-12-19
28


Furthermore, it follows from the judgment of 18 January 2017, SAWP (C‑37/16, EU:C:2017:22, paragraphs 25 and 26), that a supply of goods or services is made for consideration, within the meaning of the VAT Directive, only if there is a legal relationship between the provider and the recipient in the context of which there is reciprocal performance, the remuneration received by the provider constituting the value actually given in return for the service supplied to the recipient. There must therefore be a direct link between the service supplied and the value given in return, the amounts paid constituting actual consideration for an identifiable service supplied in the context of a legal relationship in which there is reciprocal performance.
34


Relying on the judgments of 3 September 2015, Asparuhovo Lake Investment Company (C‑463/14, EU:C:2015:542, paragraph 35), and of 29 October 2015, Saudaçor (C‑174/14, EU:C:2015:733, paragraph 32), the Republic of Austria contends that imposing VAT on a service presupposes a direct link between the service supplied and the value given in return. In accordance with the judgments of 3 March 1994, Tolsma (C‑16/93, EU:C:1994:80, paragraph 14 et seq.), and of 29 October 2015, Saudaçor (C‑174/14, EU:C:2015:733, paragraph 32), such a direct link is established if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the payment received by the provider of the service constituting the value actually given in return for the service supplied to the recipient.
43


It is not necessary to rule on the question whether, within the meaning of that provision, the payment of the royalty payable on the basis of the resale right may be classified as a ‘supply of goods’ or ‘supply of services’, which has not been raised by the parties; it should therefore be determined whether such a transaction is carried out for consideration (see, to that effect, judgment of 18 January 2017, SAWP, C‑37/16, EU:C:2017:22, paragraph 24).
44


In that regard, it is clear from settled case-law that a supply of goods or services is made for consideration, within the meaning of the VAT Directive, only if there is a legal relationship between the supplier, on the one hand, and the customer or recipient, on the other hand, in the context of which there is reciprocal performance, the remuneration received by the supplier constituting the value actually given in return for the goods or service supplied to the customer or the recipient (see, to that effect, judgment of 18 January 2017, SAWP, C‑37/16, EU:C:2017:22, paragraph 25 and the case-law cited).
55


According to the Court’s settled case-law, the principle of fiscal neutrality, which was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment, requires inter alia that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgment of 19 July 2012, Lietuvos geležinkeliai, C‑250/11, EU:C:2012:496, paragraphs 44 and 45 and the case-law cited).