C-155/12 RR Donnelley Global Turnkey Solutions Poland

JUDGMENT OF THE COURT (First Chamber)

27 June 2013 ( *1 )

‛VAT — Directive 2006/112/EC — Articles 44 and 47 — Place where taxable transactions are deemed to be carried out — Place of supply for tax purposes — Concept of ’supply of services connected with immovable property’ — Complex cross-border service relating to the storage of goods’

In Case C-155/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Poland), made by decision of 8 February 2012, received at the Court on 30 March 2012, in the proceedings

Minister Finansów

v

RR Donnelley Global Turnkey Solutions Poland sp. z o.o.,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, M. Berger, A. Borg Barthet, E. Levits and J.-J. Kasel (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

RR Donnelley Global Turnkey Solutions Poland sp. z o.o., by W. Varga, radca prawny,

the Polish Government, by B. Majczyna and M. Szpunar, acting as Agents,

the Greek Government, by K. Paraskevopoulou and M. Germani, acting as Agents,

the European Commission, by J. Hottiaux and C. Soulay, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 31 January 2013,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 44 and 47 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11) (‘the VAT Directive’).

2The request has been made in proceedings between the Minister Finansów (Minister for Finance) and RR Donnelley Global Turnkey Solutions Poland sp. z o.o. (‘RR’), a company incorporated under Polish law and subject to value added tax (‘VAT’), concerning the determination, for purposes of the imposition of that tax, of the place where a supply of services relating to the storage of goods is deemed to be carried out.

Legal context

European Union law

3Article 44 of the VAT Directive provides:

‘The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. However, if those services are provided to a fixed establishment of the taxable person located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the taxable person who receives such services has his permanent address or usually resides.’

4Article 47 of that directive provides:

‘The place of supply of services connected with immovable property, including the services of experts and estate agents, the provision of accommodation in the hotel sector or in sectors with a similar function, such as holiday camps or sites developed for use as camping sites, the granting of rights to use immovable property and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the immovable property is located.’

Polish law

5Article 5(1)(1) of the Law on value added tax (ustawa o podatku od towarów i usług) of 11 March 2004 (Dz. U. no 54, position 535), in the version applicable to the main proceedings (‘the Law on VAT’) provides that the supply of goods and the provision of services within Polish territory are subject to VAT.

6Article 8(1) and (4) of the Law on VAT provides:

‘1. The “provision of services” referred to in Article 5(1)(1) shall mean any provision to a natural person, legal person or organisational unit without legal personality which does not constitute a supply of goods within the meaning of Article 7, including:

the assignment of intangible or legal assets, regardless of the form in which the legal transaction is effected;

the obligation to refrain from an act, or to tolerate an act or situation;

the performance of services in pursuance of an order made by or in the name of a public authority or in pursuance of the law.

…

4. For the purpose of determining the place where services are provided, services shall be identified by means of statistical classifications where the provisions of this Law or the implementing provisions issued pursuant thereto provide statistical symbols for those services.’

7In accordance with Article 28b(1) of the Law on VAT, the place where a service is provided, in the case of the provision of a service to a taxable person, is the place where the taxable person who is the customer has his established business or permanent address, subject to Article 28b(2) to (4) and Articles 28e, 28f(1), 28g(1), 28i, 28j and 28n.

8Under Article 28b(2) of the Law on VAT, where the services are provided in relation to the taxable person’s fixed establishment which is located in a place other than his established business or permanent address, the place where those services are supplied is the place of that fixed establishment.

9Article 28e of the Law on VAT reads as follows:

‘The place of supply of services connected with immovable property, including the services supplied by experts and estate agents, the provision of accommodation in hotels or facilities with a similar function, such as holiday camps or sites developed for use as camping sites, the operation and use of immovable property and services for the preparation and coordination of construction work, such as, for example, the services of architects and on-site supervision, shall be the place where the immovable property is located.’

The dispute in the main proceedings and the question referred for a preliminary ruling

10As part of its business, RR provides to traders, who are subject to VAT and established in Member States other than the Republic of Poland, a complex service relating to the storage of goods. That service covers, inter alia, admission of the goods to a warehouse, placing them on the appropriate storage shelves, storing those goods, packaging the goods for customers and issuing, unloading and loading the goods. In addition, for certain contractual partners which are suppliers of goods to computer companies, the service at issue also includes the repackaging, into individual sets, of materials supplied in collective packaging. The provision of storage space is only one of several elements of the logistics process which RR manages. In addition, for the purpose of the service at issue, RR uses its own employees and packaging, the costs of which form an element of the consideration for the service. RR’s contractual partners which order the storage services do not have established businesses in Poland and do not have a fixed establishment within Polish territory.

11On 25 March 2010, RR submitted an application for individual interpretation concerning the determination of the place of the supply of a complex storage service for the purpose of calculating VAT. According to RR, the place where a supply of services of the kind which it provides is carried out must be the place where the service recipient is established. Consequently, RR argues, the services which it offers should not be subject to VAT in Poland. More specifically, the complex service relating to the storage of goods cannot be regarded as a service connected with immovable property as the intention of the parties is not to grant the recipients of the service at issue the right to use the storage area, but that service merely involves keeping the goods in an unaltered state and providing all additional services which are related to such a service.

12In its individual interpretation, issued on 8 June 2010, the Polish tax authority, represented by the Minister Finansów, stated, however, that the services relating to the storage of goods were in the nature of services connected with immovable property and therefore came within Article 28e of the Law on VAT. In those circumstances, the place where those services were supplied was the place where the immovable property used for warehousing purposes was located.

13RR brought an action against that individual interpretation, arguing that the interpretation of Article 28e of the Law on VAT supported by the Minister Finansów departed from the wording and interpretation of Article 47 of the VAT Directive, that it was contrary to the principle of consistency of European Union law, and that it called into question the uniform application of that law in the Member States. In accordance with the provisions of that directive, the supplies of services connected with immovable property were, RR submitted, services which concerned such immovable property. That, it stated, was precisely not the case with regard to the supply of services at issue in the main proceedings.

14By judgment of 25 November 2010, the Wojewódzki Sąd Administracyjny w Łodzi (Regional Administrative Court, Łódź) upheld that action, finding that the services provided by RR did not constitute a supply of services connected with immovable property. In particular, that court took the view that the services in question could not be categorised as services consisting in ‘the granting of rights to use immovable property’ in so far as the subject matter of the contracts concluded between RR and its contractual partners was the holding and active management of goods stored in RR’s warehouses. Customers were given no right to use the immovable property in any manner whatsoever. The conclusive element of a supply of services such as that at issue in the main proceedings was, that court found, the handling of the goods in such a way as to enable the customer to market his goods in the most effective manner possible. In addition, that supply of services did not have a ‘sufficiently direct connection with immovable property’ within the meaning of the Court’s case-law (Case C-166/05 Heger [2006] ECR I-7749), and therefore could not come under Article 47 of the VAT Directive. Consequently, when the services at issue are supplied to customers established outside Polish territory, they should not be subject to tax in Poland.

15In support of the appeal on a point of law which he brought against that judgment before the Naczelny Sąd Administracyjny (Supreme Administrative Court), the Minister Finansów argued that, in the present case, the storage service is the principal and predominant service, as the other services offered by RR arise from the nature of the principal service. The close connection between that service and the immovable property specifically designated as a warehouse is, he argues, undeniable. Consequently, the place where that service is taxed must be determined in accordance with Article 28e of the Law on VAT and is therefore located in Poland.

16According to the referring court, it follows from the judgments in Heger, Case C-37/08 RCI Europe [2009] ECR I-7533, and Case C-530/09 Inter-Mark Group [2011] ECR I-10675 that, in order to determine whether a supply of services is connected with immovable property for the purposes of Article 47 of the VAT Directive, a number of conditions have to be satisfied. In the present case, while there is a certain connection between the supply of services at issue and immovable property, that link is merely secondary in nature.

17In those circumstances, the Naczelny Sąd Administracyjny decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

Are the provisions of Articles 44 and 47 of [the VAT Directive] to be interpreted as meaning that complex services relating to the storage of goods, which comprise admission of the goods to the warehouse, placing the goods on the appropriate storage shelves, storing the goods for the customer, issuing the goods, unloading and loading and, in the case of certain customers, repackaging materials supplied in collective packaging into individual sets, constitute services connected with immovable property which are to be taxed, in accordance with Article 47 of [the VAT Directive], at the place where the immovable property is located?;

Alternatively, should it be accepted that the services in question are to be taxed, pursuant to Article 44 of [the VAT Directive], at the place where the customer for whom the services are supplied has established his business on a permanent basis or has a fixed establishment or, in the absence of such a place, at the place where he has his permanent address or usually resides?’

The question referred for a preliminary ruling

18By its question, the referring court asks, in essence, whether Article 47 of the VAT Directive must be interpreted as meaning that a supply of complex storage services, which comprise admission of the goods to a warehouse, placing them on the appropriate storage shelves, storing the goods, packaging them, issuing them, unloading and loading them and, in the case of certain customers, repackaging, into individual sets, materials supplied in collective packaging, constitutes a supply of services connected with immovable property within the terms of that article.

19In order to provide a useful answer to the referring court, and having regard to the fact that the transaction covered by the question referred for a preliminary ruling consists of several elements, it is necessary to examine, in the first place, whether that transaction is to be regarded as consisting of a single supply or of several distinct and independent supplies which must be assessed separately from the point of view of VAT.

20According to the Court’s case-law, in certain circumstances several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent (Case C-425/06 Part Service [2008] ECR I-897, paragraph 51, and Case C-392/11 Field Fisher Waterhouse [2012] ECR, paragraph 15).

21In this context, the Court has held that a supply must be regarded as a single supply where two or more elements or acts supplied by the taxable person are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see, to that effect, Case C-41/04 Levob Verzekeringen and OV Bank [2005] ECR I-9433, paragraph 22, and Field Fisher Waterhouse, paragraph 16).

22That is also the case where one or more supplies constitute a principal supply and the other supply or supplies constitute one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (see, to that effect, Case C-349/96 CPP [1999] ECR I-973, paragraph 30; Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09 Bog and Others [2011] ECR I-1457, paragraph 54; and Field Fisher Waterhouse, paragraph 17).

23Although it is for the national court to determine whether the taxable person supplies a single service in a particular case and to make all definitive findings of fact in that regard, the Court may, however, provide it with any guidance as to interpretation that will be helpful to it in disposing of the case (see, to that effect, Levob Verzekeringen and OV Bank, paragraph 23, and Case C-334/10 X [2012] ECR, paragraph 24).

24In this regard, it should be noted, as the Advocate General did at points 21 to 23 of her Opinion, that it is apparent from the file before the Court that, in the case in the main proceedings, the storage of the goods must, in principle, be considered to constitute the principal supply and that the reception, placement, issuing, unloading and loading of the goods amount to only ancillary supplies. For customers, these latter supplies do not, in principle, constitute an end in themselves, but are transactions which enable those customers better to enjoy the principal service.

25However, with regard to the repackaging of the goods supplied in packaging in order to create individual sets, it should be added that this service, which is provided only to certain customers, must be considered to constitute an independent principal supply in all cases in which that repackaging is not absolutely necessary to ensure better storage of the goods at issue.

26Having regard to the fact that it is not apparent from the file before the Court that, by its question, the referring court has referred to this second scenario, for the remainder of the reasoning it is necessary to take the view that the complex storage service at issue in the main proceedings constitutes one single transaction, the principal service of which comprises the storage of goods.

27In those circumstances, it is necessary, secondly, to determine the location where that single transaction is deemed to be carried out.

28In this regard, it must be stated that the VAT Directive, like Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) (‘the Sixth Directive’), which it replaced, contains in its Title V, which deals with the place of taxable transactions, a Chapter 3 relating to the place of supply of services, sections 2 and 3 of which set out, as their respective headings indicate, both general rules for determining the place of taxation of such a service and particular provisions relating to the supply of specific services.

29Accordingly, before being able to decide whether, in a given situation, a specific service supplied comes within Articles 44 and 45 of the VAT Directive, which set out general rules, it is necessary to deal with the question whether that situation is governed by one of the particular provisions set out in Articles 46 to 59b of that directive (see, by analogy with the Sixth Directive, Case C-327/94 Dudda [1996] ECR I-4595, paragraph 21).

30In the present case, it is necessary to examine whether a storage service such as that at issue in the main proceedings is capable of coming within the scope of Article 47 of the VAT Directive.

31With regard to the wording of that Article 47, which corresponds, essentially, to Article 9(2)(a) of the Sixth Directive, it is clear that the storage services do not form part of the services expressly listed in Article 47, with the result that no useful conclusion for the purpose of answering the question referred can be drawn from the wording of Article 47.

32However, it is apparent from the Court’s case-law that only supplies of services which have a sufficiently direct connection with immovable property come under Article 47 of the VAT Directive (see, to that effect, Inter-Mark Group, paragraph 30). Such a connection is, moreover, characteristic of all supplies of services listed in that article (see, as regards Article 9(2)(a) of the Sixth Directive, Heger, paragraph 24).

33As far as the concept of ‘immovable property’ is concerned, it should be borne in mind that the Court has already held that one of the essential characteristics of such property is that it is attached to a specific part of the territory of the Member State in which it is located (see, to that effect, Heger, paragraph 20).

34Consequently, as the Advocate General noted at point 35 of her Opinion, in order for a supply of services to come within the scope of Article 47 of the VAT Directive, that supply must be connected to expressly specific immovable property.

35However, in so far as a large number of services are connected in one way or another with immovable property, it is, in addition, necessary that the supply of services should relate to the immovable property itself. That is the case, inter alia, where expressly specific immovable property must be considered to be a constituent element of a supply of services, in that it constitutes a central and essential element thereof (see, to that effect, Heger, paragraph 25).

36It is clear that the supplies of services listed in Article 47 of the VAT Directive, which concern the use or the development of immovable property, or the management, including the operation and evaluation, of such property, are characterised by the fact that the immovable property itself constitutes the subject matter of the service.

37It follows that a storage service such as that at issue in the main proceedings, which cannot be regarded as relating to the development, management or evaluation of immovable property, is capable of coming within the scope of Article 47 only on the condition that the recipient of that service is given a right to use all or part of expressly specific immovable property.

38If, as the Advocate General noted at points 42 and 43 of her Opinion, it were to transpire that the recipients of such a storage service have, for example, no right of access to the part of the property where their goods are stored or that the immovable property on which or in which those goods are to be stored does not constitute a central and essential element of the supply of services – this being a matter for the national courts to determine –, a supply of services such as that at issue in the main proceedings could not come within the scope of Article 47 of the VAT Directive.

39Consequently, the answer to the question referred is that Article 47 of the VAT Directive must be interpreted as meaning that the supply of a complex storage service, comprising admission of goods to a warehouse, placing them on the appropriate storage shelves, storing them, packaging them, issuing them, unloading and loading them, comes within the scope of that article only if the storage constitutes the principal service of a single transaction and only if the recipients of that service are given a right to use all or part of expressly specific immovable property.

Costs

40Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

Article 47 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8/EC of 12 February 2008, must be interpreted as meaning that the supply of a complex storage service, comprising admission of goods to a warehouse, placing them on the appropriate storage shelves, storing them, packaging them, issuing them, unloading and loading them, comes within the scope of that article only if the storage constitutes the principal service of a single transaction and only if the recipients of that service are given a right to use all or part of expressly specific immovable property.

Signatures

[Signatures]

( *1 ) Language of the case: Polish.

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 31 January 2013 ¹

‛Tax legislation — Value added tax — Article 47 of Directive 2006/112/EC — Place where a service is supplied — Service connected with immovable property — Storage of goods’

I – Introduction

1The request for a preliminary ruling relates to the levying of value added tax (VAT) on the storage of goods and the question of which Member State has the power to levy tax in this respect. That power to levy tax depends on the place where a taxed service is supplied, as determined by VAT law.

2Under that law, the power to levy tax on services ‘connected with immovable property’ is held by the Member State in which the immovable property is located. The Court has previously ruled in this context that such a connection between the service and the immovable property must be ‘sufficiently direct’. ² The referring court now wishes to clarify whether that also applies to the storage of goods.

3The reference for a preliminary ruling provides a good opportunity to set out more precisely the Court’s case-law on the place where a service in connection with immovable property is supplied. Going beyond the individual case, clarity should be provided, for the purposes of application of the law, as to what the Court understands by a ‘sufficiently direct’ connection.

II – Legal framework

A – European Union law

4Article 43 et seq. of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, ³ as amended by Directive 2008/8, ⁴ (‘the VAT Directive’) contain rules on the place where a service is supplied.

5Article 44 of the VAT Directive contains the following general rule:

‘The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. …’

6If the recipient of the service is not a taxable person, under Article 45 of the VAT Directive the following general rule applies:

‘The place of supply of services to a non-taxable person shall be the place where the supplier has established his business. …’

7Article 46 et seq. of the VAT Directive contain particular provisions on the place of supply of a service. Article 47 of the VAT Directive governs the ‘supply of services connected with immovable property’:

‘The place of supply of services connected with immovable property, including the services of experts and estate agents, the provision of accommodation in the hotel sector or in sectors with a similar function, such as holiday camps or sites developed for use as camping sites, the granting of rights to use immovable property and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the immovable property is located.’

8Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment ⁵ (‘the Sixth Directive’), which was applicable until 31 December 2006, laid down provisions on the place of supply of a service in Article 9. The specific provision on services connected with immovable property was in Article 9(2)(a):

‘(2) However:

the place of the supply of services connected with immovable property, including the services of estate agents and experts, and of services for preparing and coordinating construction works, such as the services of architects and of firms providing on-site supervision, shall be the place where the property is situated’.

B – National law

9The Polish VAT Law of 11 March 2004 contains, in the version to be applied in the main proceedings, provisions which, in essence, correspond to Articles 44 and 47 of the VAT Directive.

III – Main proceedings and proceedings before the Court

10RR Donnelley Global Turnkey Solutions Poland Sp. z o.o., a company governed by Polish law (‘the taxable person’), provides services for the storage of goods to undertakings established in other Member States of the European Union and in non-member States. Those services include admitting the goods to the warehouse, placing the goods on storage shelves, storing the goods, packaging the goods for the customer, issuing the goods, unloading and loading. The service may also include repackaging materials supplied in collective packaging into individual sets.

11With regard to that activity, the taxable person applied to the Polish tax authorities for an interpretation of Polish VAT law. It wished to know whether the services described are liable to VAT in the Republic of Poland. The Minister Finansów (Minister for Finance), who was competent in this regard, answered that they are, provided that the warehouse is situated in Poland, since they are services connected with immovable property and for that reason they should be taxed where the immovable property is located.

12The taxable person brought an action against that decision before the Polish courts. In its submission, for VAT purposes the place where the services it provides are supplied is, in accordance with Article 44 of the VAT Directive, the place of establishment of the respective recipient and not, in accordance with Article 47 of the VAT Directive, the place where the immovable property is located. In so far as the recipients of the service are established outside Poland, the storage services therefore cannot, in its view, be taxed by the Republic of Poland.

13In that context and in the light of the differing taxation practice of other Member States established by it, the Naczelny Sąd Administracyjny (Supreme Administrative Court), which is now hearing the dispute, referred the following questions to the Court pursuant to Article 267 TFEU:

Are the provisions of Articles 44 and 47 of the VAT Directive to be interpreted as meaning that complex services relating to the storage of goods, which comprise admission of the goods to the warehouse, placing the goods on the appropriate storage shelves, storing the goods for the customer, issuing the goods, unloading and loading and, in the case of certain customers, repackaging materials supplied in collective packaging into individual sets, constitute services connected with immovable property which are to be taxed, in accordance with Article 47 of the VAT Directive, at the place where the immovable property is located?

Alternatively, should it be accepted that the services in question are to be taxed, pursuant to Article 44 of the VAT Directive, at the place where the customer for whom the services are supplied has established his business on a permanent basis or has a fixed establishment or, in the absence of such a place, at the place where he has his permanent address or usually resides?

14In the proceedings before the Court, the taxable person, the Greek and Polish Governments and the Commission have all submitted written observations.

IV – Legal assessment

15By its questions, the referring court wishes, in essence, to ascertain whether Article 47 of the VAT Directive is to be applied to the described services for the storage of goods.

16Reasoning in two stages is required in order to answer the question. First, it must be determined whether the complex service provided by the taxable person is a single supply or whether it consists of various individual supplies the place of each of which must be assessed separately (see A). Then it must be determined whether Article 47 of the VAT Directive applies to the services identified (see B).

A – Single supply or independent individual supplies

17It must be clarified first whether the place where the individual services (admission of the goods to the warehouse, placing the goods on the appropriate storage shelves, storing the goods, issuing the goods, unloading and loading) involved in the complex service are supplied should be determined separately in each case or singly.

18The Polish Government has rightly pointed out that, in the present case, the case-law of the Court on a single supply should be taken into account. Under that case-law, where a transaction comprises a bundle of elements and acts, regard must be had to all the circumstances in which the transaction in question takes place in order to determine whether that transaction consists of two or more distinct supplies or one single supply. ⁶

19A single supply exists in particular if one individual supply constitutes the principal supply and the other individual supplies are merely ancillary supplies. An individual supply must be regarded as merely ancillary to a principal supply if it does not constitute for customers an end in itself, but a means of better enjoying the principal service supplied. ⁷

20Where there is a single supply in the form of a principal supply and ancillary supplies, the ancillary supplies are to share the tax treatment of the principal supply. ⁸ The Polish Government rightly points out, therefore, that the place of the principal supply determines the place of the single supply as a whole. ⁹

21It is in principle a matter for the referring court to establish, in the main proceedings, whether the individual supplies described constitute a single supply and, if appropriate, which of the individual supplies is the principal supply. ¹⁰ However, on the basis of the facts set out, it appears compelling, in principle, to regard the warehousing of the goods, that is to say the actual storage, as the principal supply, and, by contrast, their admission, placement, issuing, unloading and loading as ancillary supplies, since the latter individual supplies are not generally an end in themselves for the customer but only serve to facilitate the desired storage of the goods.

22Nevertheless, it is also possible to regard the repackaging of materials, as carried out for certain customers, as an independent service, if the repackaging does not take place for reasons of better storage. In that case, two services would have to be found for VAT purposes, and the place of each would have to be determined separately: one for repackaging and the other for storage of the goods.

23A different outcome might be reached overall if the loading and unloading of the goods to be stored involved a substantial transport service on the part of the taxable person. If collecting the goods from one place and, after a brief period of storage, taking them to another place forms part of the service, then the transport may be the principal supply while the interim storage does not serve any end in itself for the customer and is therefore merely an ancillary supply. The place where such a service is supplied would then be determined according to the place of supply applicable to a transport service.

24On the basis of the individual services described by the referring court, in particular in the questions referred, I shall, however, assume, in my further examination that the complex service described concerning goods storage is a single service, whose place of supply is determined according to the principal service of storing the goods.

B – Place of the single supply of storage

25The place where the storage service is supplied could be determined according to the general rules of Articles 44 and 45 of the VAT Directive or according to the special provision of Article 47.

26As the special provisions on the place where a service is supplied take precedence over the general rule, ¹¹ the application of Article 47 of the VAT Directive should be examined first.

27The storage of goods is not one of the services explicitly listed in the provision. Since, however, the list is not exhaustive, ¹² the question arises whether the storage of goods is a service ‘connected with immovable property’ within the meaning of the provision.

1. Sufficiently direct connection

28According to the case-law of the Court on Article 9(2)(a) of the Sixth Directive, not every connection between a service and immovable property is sufficient for this purpose. Rather, the connection must be ‘sufficiently direct’. ¹³ In Heger the Court found such a connection because the immovable property concerned was a ‘constituent’, ‘central and essential element’ of the supply of services and the immovable property was the place of final consumption of the service. ¹⁴

29There is no reason not to apply that case-law to the provision – Article 47 of the VAT Directive – to be interpreted in the present case, despite the now expanded wording as regards the services explicitly listed. However, that case-law must be expressed in more concrete terms, since, as Advocate General Jacobs has previously rightly pointed out, ¹⁵ in determining the place where a service is supplied for the purposes of VAT, the main objective is to ensure legal certainty.

30The provisions on the place where a service is supplied constitute conflict rules that determine the place where services are taxed and thus delimit the competences of the respective Member States. The object is to avoid, first, conflicts of jurisdiction which may result in double taxation and, secondly, non-taxation. ¹⁶ The concepts used in the provisions must therefore be interpreted uniformly throughout the European Union, ¹⁷ and in such a way that lays down a definite, simple and practical criterion and thus avoids conflicts of jurisdiction between Member States. ¹⁸

31With regard to Article 47 of the VAT Directive, this objective has not yet been achieved by the existing case-law of the Court. The requirement of a ‘sufficiently direct’ connection is, as the present case also shows, so indeterminate that its application in an individual case is not foreseeable. The same is true of the supplementary criteria listed by the Court in a ruling, namely that the immovable property should be a ‘central and essential element’ of a service or the place of final consumption.

32The Court has previously held with regard to the ‘direct and immediate link’ between input transactions and taxable output transactions for the deduction of input tax pursuant to Article 168 of the VAT Directive, as required in its case-law, that, in view of the diversity of economic transactions, it is impossible to give a more appropriate reply as to the necessary relationship in every case and the application of this test is therefore a matter for the national courts. ¹⁹ However, the same cannot be said as regards the ‘sufficiently direct connection’ that determines the application of Article 47 of the VAT Directive, which is to be interpreted in the present case, for, while the right to deduct input tax in an individual case is to be determined by only one national court, the question of the place where a specific service is supplied can be dealt with in parallel before the courts of different Member States. In order to avoid divergent rulings in this regard that would lead to double taxation or non-taxation of a service, the Court must provide the national courts with as objective a criterion as possible for the application of Article 47 of the VAT Directive. ²⁰

2. Objective criterion for a sufficiently direct connection

33The referring court has proposed in this respect that a sufficiently direct connection between a service and immovable property should be found if specific immovable property is the subject-matter of the service.

34The Court should follow this proposal.

35It means, first, that it is not sufficient that any immovable property be required for the performance of the service. Rather, it must be specific immovable property identified by the parties. This requirement also follows from the fact that, in applying Article 47 of the VAT Directive, it must be clear to the parties where the tax obligations have to be fulfilled.

36However, the requirement of specific immovable property with which the service is connected is also itself insufficient for application of Article 47 of the VAT Directive. Numerous services are to be provided in a specific property as the service provider has his business premises there, without this being able to establish a sufficiently direct connection between the service and immovable property. As the Court has previously held, a large number of services are connected in one way or another with immovable property. ²¹

37For that reason, secondly, the specifically determined immovable property must also be the subject-matter of the service, that is to say, the immovable property is the object of the supply. This requirement may also be inferred from the services explicitly listed in Article 47 of the VAT Directive, which, in essence, are the only guide to interpretation. ²² According to that list, the immovable property is the subject-matter of a service when it is used by the customer (granting of rights including accommodation), when work is carried out on it (construction services) or when it is assessed (services of experts).

38It is of no consequence in this respect that two services are listed in Article 47 of the VAT Directive which do not actually fall within one of these three categories. That is the case for the services of estate agents and the preparation of construction work. These have as their subject-matter not the immovable property itself, but the contract for the purchase of immovable property or the planning documents for the work to be carried out on it.

39The general rule for a sufficiently direct connection with immovable property need not, however, cover all the services explicitly listed in Article 47 of the VAT Directive. Rather, their inclusion in the wording may serve merely to extend application of the article for the purposes of simplification. ²³ If, on the other hand, the general rule were made so broad that it also included all the services explicitly listed in Article 47 of the VAT Directive, that would significantly extend the scope of that provision, since, in order also to include the services of estate agents and the preparation of construction work in a general rule, that rule would have to include services the subject-matter of which is not immovable property but which are related to a property. As already shown, ²⁴ however, this is the case for a large number of services.

40Against this background, a sufficiently direct connection between the service and immovable property for the application of Article 47 of the VAT Directive is to be found if the service has the use of, work on, or assessment of specific immovable property as its subject-matter or is explicitly listed in the provision.

41The individual cases decided to date by the Court are in accordance with these requirements: the fishing rights to be assessed in Heger constitute the use of immovable property ²⁵ and the organisation of the exchange of timeshare usage rights which was at issue in RCI Europe ²⁶ amounts to the service of an estate agent. In Inter-Mark Group the Court held that there was not a sufficiently direct connection between the construction of fair stands and immovable property, although work on immovable property was involved. However, that case-law merely clarifies that such work, even in the form of construction services, must have a certain scope and a certain permanence. ²⁷

3. Subject-matter of a supply of storage services

42The supply of storage services to be assessed in the present case can therefore display a sufficiently close connection with immovable property only if it is linked with a right to use a specific property or a specific part of a property. Only then is the subject-matter of the service the immovable property itself. In this connection, the fact that the storage areas are not freely accessible to the customer – upon which the Wojewódzki Sąd Administracyjny w Łodzi (Regional Administrative Court, Łódź) relied at first instance in the main proceedings – may be of significance.

43If, however, the supply of storage services is not linked to a right of use of specific immovable property, the subject-matter of the supply is merely the goods to be stored. The fact that immovable property is necessarily required for storage is, as has been seen, irrelevant. ²⁸ As the Greek Government has rightly stated, in that case the immovable property is only a means of performing the supply.

44Nor does the supply of storage services fall, as the Polish Government suggests, under accommodation in the hotel sector or in sectors with a similar function as listed in Article 47 of the VAT Directive. The accommodation of persons takes place under quite different conditions from the storage of goods, so that the storage sector does not fulfil a function similar to the hotel sector.

45Thus, as the taxable person has correctly observed, for the application of Article 47 of the VAT Directive to a storage service a distinction should be drawn according to whether the customer obtains a right of use of a specific storage area or whether he is merely to receive the goods back in the same condition.

4. Guidelines of the VAT Committee

46This distinction between storage services also corresponds to the position adopted by the Advisory Committee on Value Added Tax (‘the VAT Committee’). The VAT Committee, which under Article 398(2) of the VAT Directive comprises representatives of the Commission and of the Member States, expressed ‘almost unanimously’ in a guideline from the 93rd meeting on 1 July 2011 the view that the storage of goods in immovable property does not result in application of Article 47 of the VAT Directive where ‘no specific part of the immovable property is assigned for the exclusive use of the customer’. ²⁹

47The guidelines of the VAT Committee are admittedly not legally binding, ³⁰ but Article 398(4) of the VAT Directive expressly assigns to the Committee the task of examining questions which concern the application of European Union provisions on VAT.

48In the field of customs law, the Court at an early date described the opinions of the former Committee on Common Customs Tariff Nomenclature, which had a similar task, ³¹ as a valid aid to the uniform application of the Common Customs Tariff, although they did not have legally binding force. ³² This is the basis for the settled case-law of the Court according to which the explanatory notes on the Combined Nomenclature which are drawn up by the Commission – now in conjunction with the Customs Code Committee ³³ – are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force. ³⁴

49There is no longer any reason not to accord the guidelines of the VAT Committee a comparable role. In my Opinion in Levob Verzekeringen and OV Bank, I rejected this on the grounds that the guidelines were not published. ³⁵ Now, however, they are. ³⁶

50The importance of the VAT Committee should not, however, be overestimated. Its guidelines are, in essence, an expression of the opinion of the Commission and the competent authorities of the Member States. ³⁷ For this reason, unanimity – as prescribed in Article 113 TFEU for the Council’s legal acts on VAT – is not a prerequisite for their use as an aid to interpretation.

51As an aid to the interpretation to be undertaken in the present case, the almost unanimously adopted guideline cited confirms, however, that a distinction is to be drawn between supplies of storage services as regards the application of Article 47 of the VAT Directive.

V – Conclusion

Conclusion

52Therefore I propose the following answer to the questions referred for a preliminary ruling by the Naczelny Sąd Administracyjny:

1Application of Article 47 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Directive 2008/8/EC, requires that the subject-matter of the service be the use of, work on or assessment of specific immovable property or that the service be explicitly listed in that provision.

2Complex services relating to the storage of goods fulfil these requirements only if the storage of the goods is the principal supply of a single service and it is connected with a right to use specific immovable property or a specific part of such property.

¹ Original language: German.

² See Case C-166/05 Heger [2006] ECR I-7749, paragraph 24, and Case C-530/09 Inter-Mark Group [2011] ECR I-10675, paragraph 30.

³ OJ 2006 L 347, p. 1.

⁴ Council Directive 2008/8/EC of 12 February 2008 amending Directive 2006/112/EC as regards the place of supply of services (OJ 2008 L 44, p. 11).

⁵ OJ 1977 L 145, p. 1.

⁶ Case C-44/11 Deutsche Bank [2012] ECR, paragraph 18 and the case-law cited.

⁷ See Case C-392/11 Field Fisher Waterhouse [2012] ECR, paragraph 17 and the case-law cited.

⁸ See Deutsche Bank, cited in footnote 6, paragraph 19 and the case-law cited, and Field Fisher Waterhouse, cited in footnote 7, paragraph 17.

⁹ See also, to that effect, Case C-41/04 Levob Verzekeringen and OV Bank [2005] ECR I-9433; a lack of clarity remains so far as concerns Case C-429/97 Commission v France [2001] ECR I-637, paragraphs 46 to 48, according to which the existence of a composite supply appears to militate against the application of a special provision on the place where a service is supplied.

¹⁰ See Field Fisher Waterhouse, cited in footnote 7, paragraph 20 and the case-law cited.

¹¹ See, to that effect, on Article 9 of the Sixth Directive, Case C-377/08 EGN [2009] ECR I-5685, paragraph 28 and the case-law cited.

¹² See the Opinion of Advocate General Sharpston in Heger, cited in footnote 2, point 36.

¹³ Heger, cited in footnote 2, paragraph 24, and, on the essentially identically worded Article 45 of the old version of the VAT Directive, Inter-Mark Group, cited in footnote 2, paragraph 30; see also Case C-37/08 RCI Europe [2009] ECR I-7533, paragraph 36: ‘sufficiently direct connection’.

¹⁴ Heger, cited in footnote 2, paragraph 25.

¹⁵ See the Opinion of Advocate General Jacobs in Case C-438/01 Design Concept [2003] ECR I-5617, point 30.

¹⁶ See, on Article 9 of the Sixth Directive, Case 168/84 Berkholz [1985] ECR 2251, paragraph 14; Case C-327/94 Dudda [1996] ECR I-4595, paragraph 20; Case C-167/95 Linthorst, Pouwels en Scheres [1997] ECR I-1195, paragraph 10; Commission v France, cited in footnote 9, paragraph 41; Case C-108/00 SPI [2001] ECR I-2361, paragraph 15; Case C-452/03 RAL (Channel Islands) and Others [2005] ECR I-3947, paragraph 23; Levob Verzekeringen and OV Bank, cited in footnote 9, paragraph 32; Case C-114/05 Gillan Beach [2006] ECR I-2427, paragraph 14; Case C-401/06 Commission v Germany [2007] ECR I-10609, paragraph 29; Case C-291/07 Kollektivavtalsstiftelsen TRR Trygghetsrådet [2008] ECR I-8255, paragraph 24; Case C-1/08 Athesia Druck [2009] ECR I-1255, paragraph 20; EGN, cited in footnote 11, paragraph 27; and Case C-218/10 ADV Allround [2012] ECR, paragraph 27.

¹⁷ See, to that effect, on Article 9 of the Sixth Directive, Case C-68/92 Commission v France [1993] ECR I-5881, paragraph 14; Case C-69/92 Commission v Luxembourg [1993] ECR I-5907, paragraph 15; Case C-73/92 Commission v Spain [1993] ECR I-5997, paragraph 12; Gillan Beach, cited in footnote 16, paragraph 20; and Case C-242/08 Swiss Re Germany Holding [2009] ECR I-10099, paragraph 32.

¹⁸ See, on Article 9 of the Sixth Directive, Commission v France, cited in footnote 9, paragraph 49; see also, to that effect, Case C-390/96 Lease Plan [1998] ECR I-2553, paragraph 23 and the case-law cited; Kollektivavtalsstiftelsen TRR Trygghetsrådet, cited in footnote 16, paragraph 31; and ADV Allround, cited in footnote 16, paragraph 30.

¹⁹ Case C-98/98 Midland Bank [2000] ECR I-4177, paragraph 25.

²⁰ See already, to that effect, the Opinion in Heger, cited in footnote 2, point 33.

²¹ Heger, cited in footnote 2, paragraph 23.

²² See, as regards the spirit and purpose of the exception for services connected with immovable property, the Commission Proposal of 23 December 2003 for a Council Directive amending Directive 77/388/EEC as regards the place of supply of services, COM(2003) 822 final, pp. 6 and 7: ‘policy reasons’.

²³ See, regarding the extension of the list of services by Directive 2008/8/EC, Commission Proposal COM(2003) 822 final, cited in footnote 22, p. 11, on Article 9a.

²⁴ See point 36 above.

²⁵ See Heger, cited in footnote 2, paragraph 25.

²⁶ See RCI Europe, cited in footnote 13.

²⁷ See Inter-Mark Group, cited in footnote 2, paragraph 31.

²⁸ See above, point 35 et seq.

²⁹ Document A – taxud.c.1(2012)400557 – 707, p. 4, point 8(a).

³⁰ See the Opinion of Advocate General Geelhoed in Case C-144/00 Hoffmann [2003] ECR I-2921, point 72, and the Opinion of Advocate General Bot in Commission v Germany, cited in footnote 16, point 50.

³¹ See Article 2 of Council Regulation (EEC) No 97/69 of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (OJ, English Special Edition 1969(I), p. 12).

³² Joined Cases 69/76 and 70/76 Dittmeyer [1977] ECR 231.

³³ See the second indent of Article 9(1)(a) and Article 10 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16).

³⁴ See, inter alia, Case C-201/96 LTM [1997] ECR I-6147, paragraph 17; Case C-467/03 Ikegami [2005] ECR I-2389, paragraph 17; and Case C-423/10 Delphi Deutschland [2011] ECR I-4003, paragraph 24.

³⁵ See my Opinion in Levob Verzekeringen and OV Bank, cited in footnote 9, point 25.

³⁶ See the Commission’s website at http://ec.europa.eu/taxation_customs/taxation/vat/key_documents/vat_committee/index_en.htm, accessed on 11 January 2013.

³⁷ See, to this effect, the Opinion of Advocate General Warner in Dittmeyer, cited in footnote 32, p. 244.