C-324/20 X-Beteiligungsgesellschaft (VAT – Successive payments)

JUDGMENT OF THE COURT (First Chamber)

28 October 2021 ( *1 )

(Reference for a preliminary ruling – Directive 2006/112/EC – Value added tax (VAT) – Supply of services – Article 63 – Chargeability of VAT – Article 64(1) – Concept of ‘supplies which give rise to successive payments’ – One-time supply remunerated by means of payment in instalments – Article 90(1) – Reduction of the taxable amount – Concept of ‘non-payment of the price’)

In Case C‑324/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 7 May 2020, received at the Court on 22 July 2020, in the proceedings

Finanzamt B

v

X-Beteiligungsgesellschaft mbH,

THE COURT (First Chamber),

composed of L. Bay Larsen, Vice-President, acting as President of the First Chamber, J.‑C. Bonichot (Rapporteur) and M. Safjan, Judge,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

X-Beteiligungsgesellschaft mbH, by O. Pantle, Rechtsanwalt,

the German Government, by J. Möller and S. Heimerl, acting as Agents,

the European Commission, by J. Jokubauskaitė and L. Mantl, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 1 July 2021,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 64(1) and Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2The request has been made in proceedings between Finanzamt B (Tax Office B, Germany) and X-Beteiligungsgesellschaft mbH concerning the chargeability of value added tax (VAT) on a supply of services paid for in several instalments.

Legal context

EU law

3Recital 24 of Directive 2006/112 reads as follows:

‘The concepts of chargeable event and of the chargeability of VAT should be harmonised if the introduction of the common system of VAT and of any subsequent amendments thereto are to take effect at the same time in all Member States.’

4Under Article 14(2) of that directive:

‘In addition to the transaction referred to in paragraph 1, each of the following shall be regarded as a supply of goods:

…

the actual handing over of goods pursuant to a contract for the hire of goods for a certain period, or for the sale of goods on deferred terms, which provides that in the normal course of events ownership is to pass at the latest upon payment of the final instalment;

…’

5Within Title VI of Directive 2006/112 concerning the chargeable event and chargeability of VAT, Chapter 2, under the heading ‘Supply of goods or services’, is comprised of Articles 63 to 67 of the directive.

6Under Article 63 of the directive:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

7Article 64 of Directive 2006/112 provides:

‘1. Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.

2. Member States may provide that, in certain cases, the continuous supply of goods or services over a period of time is to be regarded as being completed at least at intervals of one year.’

8Under Article 66 of that directive:

‘By way of derogation from Articles 63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times:

no later than the time the invoice is issued;

no later than the time the payment is received;

where an invoice is not issued, or is issued late, within a specified period from the date of the chargeable event.’

9Within Title VII of Directive 2006/112, under the heading ‘Taxable amount’, Article 90 thereof reads as follows:

‘1. In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.

2. In the case of total or partial non-payment, Member States may derogate from paragraph 1.’

10Article 193 of that directive provides:

‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199 and Article 202.’

11Article 226 of the directive provides:

‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for VAT purposes on invoices issued pursuant to Articles 220 and 221:

…

the quantity and nature of the goods supplied or the extent and nature of the services rendered;

the date on which the supply of goods or services was made or completed or the date on which the payment on account referred to in points (4) and (5) of Article 220 was made, in so far as that date can be determined and differs from the date of issue of the invoice;

…’

German law

12Paragraph 13(1)(1) of the Umsatzsteuergesetz (Law on Turnover Tax) of 21 February 2005 (BGB1. 2005 I, p. 386), in the version applicable to the main proceedings (‘the UStG’), provides:

‘Tax shall become chargeable

1. on supplies of goods and other services

in cases where tax is calculated on the basis of the remuneration agreed (Paragraph 16(1), first sentence), upon expiry of the prepayment period in which the supplies of goods or services were made. This shall also apply to part supplies. Supplies are part supplies where it is agreed that certain parts of an economically divisible supply are to be paid for separately. Where the remuneration or part remuneration is received before the supply or part supply has been made, tax shall become chargeable thereon upon expiry of that prepayment period in which the remuneration or part remuneration was received,

in cases where tax is calculated on the basis of the remuneration collected (Paragraph 20), upon expiry of the tax period in which the remuneration was received,

…’

13Paragraph 17 of the UStG provides:

‘(1) If the taxable amount of a taxable transaction for the purposes of Paragraph 1(1)(1) has changed, the trader who made the supply shall adjust the amount of tax payable accordingly. …

(2) Subparagraph 1 shall apply mutatis mutandis where

1the remuneration agreed for a taxable supply of goods or other services or a taxable intra-Community acquisition has become unrecoverable. If the remuneration is received retroactively, the amount of the tax and the [input tax] deduction shall be readjusted;

…’

14Under the first sentence of Paragraph 20 of the UStG, a trader may be allowed to calculate VAT on the basis of the remuneration received rather than on the basis of the remuneration agreed, where, inter alia, his turnover did not exceed a certain threshold in the preceding calendar year.

The facts in the main proceedings and the questions referred for a preliminary ruling

15In 2012, X supplied mediation services to T-GmbH for the purposes of the latter’s sale of a plot of land to another. It is clear from the fee agreement which X and T entered into on 7 November 2012 that X had already complied with its contractual obligations by that date.

16As regards the remuneration for the services in question, a fee of EUR 1000000 plus VAT was agreed and it was specified that that fee was to be paid in five instalments of EUR 200000 plus VAT. The instalments were due at yearly intervals and the first instalment was payable on 30 June 2013. At the time of the respective due dates, X issued an invoice for each instalment and paid tax corresponding to the sum received.

17Following a tax audit, Tax Office B took the view in a decision of 22 December 2016 that the services had been supplied in 2012 and that therefore X should have paid, in respect of that year, VAT on the entire fee.

18Since the objection lodged against that decision was unsuccessful, X brought an action before the Finanzgericht (Finance Court, Germany), which was largely upheld. In essence, that court found that X had supplied the services at issue in the main proceedings in 2012. However, it took the view that, aside from the first instalment fee, which was received in 2013, the remuneration agreed should be regarded as unrecoverable according to Paragraph 17(2)(1) and the first sentence of Paragraph 17(1) of the UStG. As appears from the order for reference, the Finanzgericht (Finance Court) proceeded from the premiss that the application of Article 90(1) of Directive 2006/112 allows the taxable amount to be reduced in order to prevent the taxable person from being obliged to pre-finance, over a period of several years, the VAT due on the basis of the period in which the services were supplied where payment in full of that supply has not yet been received during that period.

19Tax Office B brought an appeal on a point of law (Revision) before the Bundesfinanzhof (Federal Finance Court, Germany) against the decision of the Finanzgericht (Finance Court).

20The Bundesfinanzhof (Federal Finance Court) asks whether Article 64(1) of Directive 2006/112 applies to services supplied on a single occasion. Although that provision excludes from its scope supplies of goods on deferred terms, it does not contain a comparable exclusion for supplies of services paid in instalments. However, a literal interpretation of the application of that provision could give rise to an unjustified distinction of supplies of goods and services. Furthermore, such an interpretation could unduly limit the general rule of Article 63 of Directive 2006/112 that, in principle, VAT is to become chargeable when services are supplied.

21That court also notes that the present case may be distinguished from that which gave rise to the judgment of 29 November 2018, baumgarten sports & more (C‑548/17, EU:C:2018:970), which concerned supplies of the services of a sports agent, namely the placement of a player with a football club in so far as the agent’s remuneration was tied to the player’s placement within the club in question being continued. The case in the main proceedings concerns a situation in which the payment of the agreed remuneration in instalments is merely subject to certain timeframes rather than conditional on the long-term success of the agency service, which may be uncertain.

22The Bundesfinanzhof (Federal Finance Court) considers that the fact that, in the judgment of 29 November 2018, baumgarten sports & more (C‑548/17, EU:C:2018:970), the Court cited the judgment of 3 September 2015, Asparuhovo Lake Investment Company (C‑463/14, EU:C:2015:542), which concerned a service supplied on a permanent basis over a long period, supports the interpretation that there can be ‘successive statements of account or successive payments’ within the meaning of Article 64(1) of Directive 2006/112 only if the supplies in question are related to the instalment payments.

23That court considers that such an approach corresponds to the second and third sentences of Paragraph 13(1)(1)(a) of the UstG, according to which the economic divisibility of a service is conclusive.

24If Article 64(1) of Directive 2006/112 is not to be applied in the case at issue in the main proceedings, the referring court asks the Court whether Article 90(1) of that directive may be applied.

25That court states that, in respect of the services supplied in 2012, X was remunerated, as of June 2013, in several instalments, each time plus VAT. If it were the case that the VAT for a one-time service is chargeable in the year in which it is supplied, a taxable person who accepted to be paid in several instalments would be required to pre-finance the VAT. However, the referring court harbours doubts as to whether the obligation to pre-finance the VAT is compatible with the role of taxable persons which, as follows from the case-law of the Court, inter alia, in the judgments of 20 October 1993, Balocchi (C‑10/92, EU:C:1993:846), and of 21 February 2008, Netto Supermarkt (C‑271/06, EU:C:2008:105), is to act as tax collectors for the State.

26The referring court states that such an obligation could be avoided by reducing the taxable amount pursuant to Article 90(1) of Directive 2006/112, followed by its subsequent readjustment when the remuneration is actually paid.

27In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Does a service provided on a single occasion and therefore not in relation to a certain period of time give rise to successive statements of account or successive payments within the meaning of Article 64(1) of Directive [2006/112] merely on the basis of an agreement to pay in instalments?

Alternatively, if the first question is answered in the negative: is non-payment within the meaning of Article 90(1) of Directive [2006/112] to be assumed if the taxable person, when providing his service, agrees that the service is to be paid for in five annual instalments and the national law relating to cases of subsequent payment provides for an adjustment by which the previous reduction in the taxable amount is cancelled again in accordance with that article?’

Consideration of the questions referred

Admissibility of the questions referred

28As is clear from the facts, as set out by the referring court, the case in the main proceedings concerns a supply of services executed in full by the end of 2012 and for which the consideration was paid, pursuant to the contract, in annual instalments during the following five years.

29In its observations before the Court, the defendant in the main proceedings disputes that statement of the facts. In support of its objection, it relies on a document which supports provisional findings made by a German court in a case other than that in the main proceedings.

30However, such a document cannot call into question the statement of the facts as set out in the order for reference.

31It is sufficient to recall that, according to settled case-law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The Court must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgment of 27 January 2021, Dexia Nederland, C‑229/19 and C‑289/19, EU:C:2021:68, paragraph 44 and the case-law cited).

32It follows that the questions referred for a preliminary ruling are admissible.

The first question

33By its first question, the referring court seeks to ascertain whether Article 64(1) of Directive 2006/112 must be interpreted as meaning that a service supplied on a single occasion remunerated by way of instalment payments falls within the scope of that provision.

34First of all, it is important to note that Article 64(1) of Directive 2006/112 must be read in the light of Article 63 of that directive, since the former is intrinsically related to the latter.

35Article 63 of Directive 2006/112 provides that the chargeable event for VAT occurs and VAT becomes chargeable when the goods or services are supplied. Moreover, according to Article 64(1) of that directive, where the supply of services gives rise, inter alia, to successive payments, it is to be regarded as being completed, for the purposes of Article 63, on expiry of the periods to which such payments relate.

36It follows from the combined application of those two provisions that, in respect of the supply of services giving rise to successive payments, the chargeable event for VAT occurs and VAT becomes chargeable on expiry of the periods to which those payments relate (judgment of 29 November 2018, baumgarten sports & more, C‑548/17, EU:C:2018:970, paragraph 28 and the case-law cited).

37As for its interpretation, the wording ‘supplies which give rise to successive payments’ could be construed either as including one-time supplies for an agreed consideration paid in several instalments, or as concerning only supplies the nature of which justify payment in instalments, namely those which are not performed on a single occasion, but repeated or continuous over a certain period.

38The second interpretation is borne out by the wording and purpose of Article 64(1) of Directive 2006/112. Under that provision, the liability to tax arises on expiry of the periods to which the successive payments relate. Since those payments necessarily constitute the consideration for supplies, it follows that that provision implicitly requires that the supply be completed during those periods. In those circumstances, the application of Article 64(1) of Directive 2006/112 cannot be governed solely by the successive nature of the payment for the supply.

39Accordingly, the application of Article 64(1) is premissed on there being a relationship between the nature of the services in question and the payment in instalments, so that that provision cannot concern a one-time supply, even if paid for in instalments.

40That literal interpretation of Article 64(1) of Directive 2006/112 is supported by its purpose and by the scheme of the directive.

41In that regard, it should be made clear that Article 64(1) of the directive, read in conjunction with Article 63 thereof, is intended to facilitate the collection of VAT and, in particular, the ascertaining of when the liability to tax arises.

42In order to ascertain when the chargeable event occurs and the tax becomes chargeable, Article 63 of Directive 2006/112 requires that the actual supply of a service be determined. As the Advocate General stated in point 41 of his Opinion, Article 63 does not specify which event is to be regarded as the time of supply, so that it is for the competent national authorities and courts to ascertain the time at which it actually took place.

43By contrast, under Article 64(1) of Directive 2006/112, the chargeable event and chargeability of VAT are tied to the expiry of the periods to which the payments for the services supplied relate. Article 64(1) therefore sets out a legal rule from which the precise time of the chargeable event may be ascertained on the basis of a legal fiction, without needing to make the findings necessary for ascertaining when a service was actually supplied.

44More particularly, as the Court has previously held, where Article 64(1) of Directive 2006/112 applies, it is sufficient that the periods of the supply of services to which the successive payments relate be mentioned in the invoices for the taxable person to satisfy the requirements of Article 226(7) of that directive, according to which the invoice must show the date on which the supply of services was made or completed (see, to that effect, judgment of 15 September 2016, Barlis 06 – Investimentos Imobiliários e Turísticos, C‑516/14, EU:C:2016:690, paragraphs 29 to 31).

45However, as a legal rule for determining the time from which a liability to tax arises, Article 64(1) of the directive applies only to the extent that the date or dates of the actual completion of services are unambiguous and potentially give rise to different interpretations, which is the case where they are, on account of their continuous or recurrent nature, supplied during one or several specific periods.

46By contrast, as the Advocate General observed, in essence, in point 44 of his Opinion, where the time at which the supply of services is completed is unambiguous, in particular, in the event of a one-time supply and of a precise point in time from which its completion can be ascertained on the basis of the contractual relationship between the parties to the transaction, Article 64(1) of Directive 2006/112 cannot apply without disregarding the clear wording of Article 63 of that directive.

47In addition, in accordance with the latter provision, read in the light of recital 24 of Directive 2006/112, the chargeable event and chargeability of VAT are not governed freely by the parties to the contract. On the contrary, the EU legislature thereby intended maximum harmonisation of the date on which liability to pay VAT arises in all the Member States in order to ensure the uniform collection of that tax (judgment of 2 May 2019, Budimex, C‑224/18, EU:C:2019:347, paragraph 22 and the case-law cited).

48It would therefore be contrary to Article 63 of Directive 2006/112 to allow taxable persons, who have supplied a one-time service in conjunction with the conclusion of an agreement on payment of the price for that service in instalments, to opt for the application of Article 64(1) of the directive and thereby determine themselves the chargeable event and chargeability of VAT.

49Such an interpretation of Article 64(1) of Directive 2006/112 would also prove difficult to reconcile with Article 66(a) and (b) of the directive. Under those provisions, Member States may provide, by way of derogation from Articles 63 to 65 of the directive, that VAT is to become chargeable in respect of certain transactions or certain categories of taxable person no later than the time the invoice is issued or than the time the payment is received. If taxable persons were, according to their contractual arrangements for payment of the price, able themselves, in place of the Member States, to adapt the time of the chargeable event and chargeability of VAT, Article 66(a) and (b) of Directive 2006/112 would largely be deprived of its substance.

50Furthermore, it cannot be inferred from the case-law of the Court that Article 64(1) of Directive 2006/112 may apply even to a one-time supply of services. The cases in which the Court upheld the applicability of that provision concerned services supplied during specified periods on the basis of contracts which provided for obligations of a continuous nature, whether it be the lease of a vehicle (judgment of 16 February 2012, Eon Aset Menidjmunt, C‑118/11, EU:C:2012:97), consulting services of a legal, commercial or financial nature (judgments of 3 September 2015, Asparuhovo Lake Investment Company, C‑463/14, EU:C:2015:542, and of 15 September 2016, Barlis 06 – Investimentos Imobiliários e Turísticos, C‑516/14, EU:C:2016:690), or agency services for the placement of a player to and in a football club (judgment of 29 November 2018, baumgarten sports & more, C‑548/17, EU:C:2018:970).

51The fact that taxable persons may ultimately pre-finance the VAT which they are required pay to the State when supplying one-time services for which the price is paid in instalments also cannot affect the conclusions in paragraphs 39 and 48 above.

52It is the case that the Court has consistently held, in accordance with the principle of the neutrality of VAT, that the trader, as tax collector on behalf of the State, is entirely to be relieved of the burden of tax due or paid in the course of his or her economic activities, themselves subject to VAT (judgment of 15 October 2020, E. (VAT – Reduction of the taxable amount), C‑335/19, EU:C:2020:829, paragraph 31 and the case-law cited).

53However, as the Advocate General stated in point 62 of his Opinion, the role of taxable persons is not limited to that of tax collectors of VAT. In accordance with Article 193 of Directive 2006/112, the obligation to pay VAT – or, at least, output VAT – is, in principle, addressed to them when carrying out a taxable supply of goods or services, and that obligation is not subject to the prior receipt of the consideration for the supply.

54Under Article 63 of Directive 2006/112, VAT is to become chargeable when the goods or services are supplied, that is, when the transaction in question takes place, regardless of whether the consideration due for that transaction has already been paid. Accordingly, VAT is due to the tax authorities by the supplier of goods or services, even where he or she has not yet received from his or her client the payment relating to the transaction carried out (judgment of 28 July 2011, Commission v Hungary, C‑274/10, EU:C:2011:530, paragraph 46).

55In the light of the foregoing considerations, the answer to the first question is that Article 64(1) of Directive 2006/112 must be interpreted as meaning that a service supplied on a single occasion remunerated by way of instalment payments does not fall within the scope of that provision.

The second question

56By its second question, the referring court seeks to ascertain whether Article 90(1) of Directive 2006/112 must be interpreted as meaning that, in the case of an agreement on payment in instalments, the fact that an instalment of the remuneration has not been paid before its term must be regarded as non-payment of the price, within the meaning of that provision, and, as a result, lead to a reduction of the taxable amount.

57It must be borne in mind that Article 90(1) of Directive 2006/112 provides for the reduction of the taxable amount in the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place.

58According to the case-law of the Court, in the situations covered by Article 90(1) of Directive 2006/112, that provision requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. Article 90(1) of Directive 2006/112 embodies one of the fundamental principles of that directive, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person received (judgment of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraph 26 and the case-law cited).

59As regards the total or partial non-payment of consideration, such non-payment cannot, contrary to rescission or annulment of the contract, return the parties to the position they were in prior to the conclusion of the contract. If there is non-payment without there being rescission or annulment of the contract, the purchaser of goods or services remains liable for the agreed price and the supplier of the goods or services in principle continues to have the right to receive payment, which he or she can rely on in court. It cannot be excluded, however, that such a debt will become definitively irrecoverable, since non-payment is characterised by the inherent uncertainty that stems from its non-definitive nature (see, to that effect, judgment of 12 October 2017, Lombard Ingatlan Lízing, C‑404/16, EU:C:2017:759, paragraphs 29 and 30).

60Thus, non-payment of the consideration, within the meaning of Article 90(1) of Directive 2006/112, applies only to those situations in which the purchaser of goods or services fails to pay, or only pays in part, a debt which it nonetheless owes under a contract for the supply of goods or services (see, to that effect, judgment of 2 July 2015, NLB Leasing, C‑209/14, EU:C:2015:440, paragraph 36 and the case-law cited).

61In the light of that case-law, the fact remains that the payment of the price for a supply of services in instalments, pursuant to the contract between the parties, does not fall within the definition of non-payment of the consideration for the purposes of Article 90(1) of Directive 2006/112.

62First, such a payment plan does not change the amount of remuneration that the taxable person is supposed to receive or actually receives. In those circumstances, the taxable amount remains unchanged and the tax authorities do not receive VAT in a greater amount than that corresponding to the taxable person’s remuneration. Second, the fact that an instalment of a fee is not due before its term cannot be regarded as a situation in which purchasers of services pay only part of the price which they owe.

63Furthermore, as is already clear from the considerations set out in paragraphs 51 to 54 above, for the purposes of interpreting Article 90(1) of Directive 2006/112, it is irrelevant whether, in certain cases, a taxable person is required to pre-finance the VAT which he must pay to the tax authorities.

64In the light of the foregoing considerations, the answer to the second question referred is that Article 90(1) of Directive 2006/112 must be interpreted as meaning that, in the case of an agreement on payment in instalments, the fact that an instalment of the remuneration has not been paid before its term cannot be regarded as non-payment of the price, within the meaning of that provision, and, as a result, cannot lead to a reduction of the taxable amount.

Costs

65Since 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 64(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a service supplied on a single occasion remunerated by way of instalment payments does not fall within the scope of that provision.

Article 90(1) of Directive 2006/112 must be interpreted as meaning that, in the case of an agreement on payment in instalments, the fact that an instalment of the remuneration has not been paid before its term cannot be regarded as non-payment of the price, within the meaning of that provision, and, as a result, cannot lead to a reduction of the taxable amount.

Signatures

[Signatures]

( *1 ) Language of the case: German.

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 1 July 2021 ¹

(Reference for a preliminary ruling – Taxation – Value added tax – Supply of services – One-time supply – Payment in instalments – Directive 2006/112/EC – Article 63 – Chargeability of tax – Article 64(1) – Concept of transactions ‘giving rise to successive payments’ – Article 90(1) – Reduction of the taxable amount – Concept of ‘non-payment’)

Introduction

1In accordance with the principle of economic freedom and freedom of contract, market participants are free to shape their contractual relationships with respect to both the services supplied and the corresponding consideration. However, they must take into account the environment in which they operate – not just the economic environment, but also the legal one, including matters of taxation. The problems that may arise from a failure to take these considerations into account are illustrated by the present case.

2Specifically, the question is whether and to what extent the fact that payment of consideration for a transaction subject to value added tax (‘VAT’) is divided into a number of instalments affects the time at which the taxable person becomes liable to pay that tax.

Legal framework

European Union law

3Article 63 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ² provides as follows:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

4However, pursuant to Article 64(1) of that directive:

‘Where it gives rise to successive statements of account or successive payments … the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.’

5Article 66 of the directive, in turn, provides that:

‘By way of derogation from Articles 63, 64 and 65, Member States may provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times:

…

(b) no later than the time the payment is received;

…’

6Pursuant to Article 73 of the directive:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

7Finally, Article 90(1) of Directive 2006/112 provides:

‘In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.’

German law

8Directive 2006/112 was transposed into German law by the provisions of the Umsatzsteuergesetz ³ (Law on Turnover Tax; ‘the UStG’).

9Paragraph 13(1)(1) of that law provides:

‘Tax shall become chargeable

1. on supplies of goods and other services

in cases where tax is calculated on the basis of the remuneration agreed (Paragraph 16(1), first sentence), upon expiry of the prepayment period in which the supplies of goods or services were made. This shall also apply to part supplies. Supplies are part supplies where it is agreed that certain parts of an economically divisible supply are to be paid for separately. Where the remuneration or part remuneration is received before the supply or part supply has been made, tax shall become chargeable thereon upon expiry of the prepayment period in which the remuneration or part remuneration was received,

in cases where tax is calculated on the basis of the remuneration collected (Paragraph 20), upon expiry of the tax period in which the remuneration was received,

…’

10Pursuant to Paragraph 17 of the UStG:

‘1. If the taxable amount of a taxable transaction for the purposes of Paragraph 1(1)(1) has changed, the trader who made the supply shall adjust the amount of tax payable accordingly. …

2. Subparagraph 1 shall apply mutatis mutandis where:

the consideration agreed for a taxable supply of goods or other services or a taxable intra-Community acquisition has become unrecoverable. If the consideration is received retrospectively, the amount of the tax and the [input tax] deduction shall be readjusted.

…’

11Finally, the first sentence of Paragraph 20 of the UStG, in the version applicable during the tax year at issue, reads as follows:

‘On application, the tax authority may allow a trader:

whose total turnover (Paragraph 19(3)) in the preceding calendar year did not exceed EUR 500000; or

who is … exempt from the obligation to keep accounts and to draw up periodic statements on the basis of annual stock inventories; or

who carries out transactions in the course of an activity as a member of a liberal profession …;

to calculate tax on the basis of the consideration received rather than on the basis of the consideration agreed (Paragraph 16(1), first sentence).’

Factual background to the dispute, the procedure in the main proceedings, and the questions referred for a preliminary ruling

12X-Beteiligungsgesellschaft mbH, a company incorporated under German law (‘X’), is registered for VAT in Germany.

13In the 2012 tax year, X supplied services to T‑GmbH (‘T’) as an intermediary in the latter company’s sale of real estate. As shown by the fee agreement which those parties entered into on 7 November 2012, at the time the agreement was concluded, X had already supplied all the services it was obliged to supply.

14It also follows from that agreement that the fee for the aforementioned agency services was fixed at EUR 1000000 plus VAT, payable in five instalments of EUR 200000 plus VAT each. The instalments were to be paid annually starting from 30 June 2013. On the due date of each instalment, X issued an invoice and paid the VAT due.

15By a decision of 22 December 2016, the competent tax authority held that the entire supply of services by X to T had taken place in 2012 and that it was then that X should have paid the VAT in full on the transaction in question.

16X brought an action against that decision before the competent Finanzgericht (Finance Court, Germany). The court upheld X’s action; it ruled that although the supply of services had indeed taken place in 2012, the amount of consideration for that transaction, with the exception of the first instalment, which was paid on 30 June 2013, must be regarded as unpaid within the meaning of Paragraph 17 of the UStG and Article 90(1) of Directive 2006/112. According to that court, the application of those provisions allows X to avoid the need to pay the entire VAT before receiving the entire consideration for the services provided.

17The tax authority appealed against that ruling to the referring court. In those circumstances, the Bundesfinanzhof (Federal Finance Court, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Does a service provided on a single occasion and therefore not in relation to a certain period of time give rise to successive statements of account or successive payments within the meaning of Article 64(1) of the VAT Directive merely on the basis of an agreement to pay in instalments?

Alternatively, if the first question is answered in the negative: is non-payment within the meaning of Article 90(1) of the VAT Directive to be assumed if the taxable person, when providing his service, agrees that the service is to be paid for in five annual instalments and the national law relating to cases of subsequent payment provides for an adjustment by which the previous reduction in the taxable amount is cancelled again in accordance with that article?’

18The request for a preliminary ruling was lodged at the Court on 22 July 2020. Written observations were submitted by X, the German Government and the European Commission. The Court decided not to convene a hearing.

Analysis

Preliminary observations

Findings of fact

19In making its request for a preliminary ruling in the present case, the referring court relies on the findings of fact made by the court of first instance according to which the service provided for in the transaction at issue was a one-time transaction performed in its entirety by X in 2012, and therefore the consideration of EUR 1000000 plus VAT related to services performed entirely in 2012.

20However, X contests that finding. In its view, the agreement with T covered additional services, in particular consultancy services, to be provided in subsequent years in return for further instalments of the agreed consideration. Consequently, according to that company, the consideration for the services it provided in 2012 only included the amount received on 30 June 2013. X refers in particular to its supplementary interpretation agreement with T of 15 March 2016 and to the Finanzgericht’s order on the organisation of proceedings of 23 September 2020, which the company enclosed with its written observations. Therefore, in X’s view, the questions referred in the present case are hypothetical in nature.

21However, it must be borne in mind that in proceedings for a preliminary ruling, the Court is, as a rule, bound by the findings of fact made by the referring court, ⁴ and in the present case, those findings do not appear prima facie incorrect. In particular, the order of 23 September 2020 was issued after the referring court had already decided to refer the request for a preliminary ruling in the present case. That order was also issued in different proceedings concerning X’s income tax for the 2012 tax year. Moreover, the assessment of the facts may differ with respect to the determination of income for corporate income tax purposes and with respect to the determination of the VAT liability.

22Accordingly, I am of the view that the Court must answer the questions referred for a preliminary ruling in the present case on the basis of the findings of fact made by the referring court (or made by the court of first instance and accepted by the referring court).

Concerning the questions referred for a preliminary ruling

23The referring court has referred two questions for a preliminary ruling in the present case. The first question concerns the interpretation of the concept of transactions ‘giv[ing] rise to successive … payments’ within the meaning of Article 64(1) of Directive 2006/112. The second question is whether, in a situation such as that in the main proceedings, ‘non-payment’ occurs within the meaning of Article 90(1) of that directive. The application of the latter provision is not dependent on the interpretation of Article 64(1) of Directive 2006/112; non-payment may also occur in respect of transactions involving successive payments. However, an affirmative answer to the second question would render the first question superfluous. I shall therefore begin with the second question.

Second question referred

24By its second question, the referring court seeks to ascertain whether Article 90(1) of Directive 2006/112 must be interpreted as meaning that where a taxable person, at the time of a one-time supply of services, agrees to the consideration being divided into a number of instalments, non-payment occurs, within the meaning of that provision, in respect of successive instalments, except for the first, and the taxable amount may be reduced accordingly and may subsequently be increased again upon payment of further instalments. This question appears to have been prompted by the fact that this was the solution adopted by the court of first instance in the main proceedings in order to enable the taxable person to avoid the need to fund the VAT liability before receiving payment for the service supplied.

25X proposes that this question be answered in the affirmative, whereas the German Government and the Commission propose that it be answered in the negative.

26I agree with the latter view.

27VAT is charged in proportion to the taxable amount, ⁵ which is defined as ‘everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply’. ⁶ That taxable amount is determined at the time when the tax becomes chargeable, that is to say, in the case of services, when the services are supplied.

28However, if after the tax has become chargeable, the amount which should be received by the taxable person as payment for the provided service is reduced, the taxable amount, and consequently the amount of the taxable person’s tax liability, is reduced accordingly. ⁷ This may either be a reduction in the strict sense of the word or a ‘reduction to zero’, that is to say, the complete disappearance of the taxable amount and the corresponding tax liability. Such a change may occur because of a modification or termination of the contractual relationship between the parties to the taxable transaction or because of the default by the taxable person’s contractual partner on its obligation to pay the consideration.

29The obligation to reduce the taxable amount and the corresponding tax liability, as stipulated in Article 90(1) of Directive 2006/112, is an expression of the principle according to which the taxable amount with respect to VAT is the consideration that the taxable person has actually received or is due to receive in respect of a taxable transaction. ⁸

30That objective of Article 90(1) of Directive 2006/112 means that that provision applies only where the amount to be received by the taxable person as consideration for the supply is reduced. However, if that amount is not reduced, there is no reason to reduce the taxable amount and therefore the provision does not apply. That is the case, for instance, when parties to a taxable transaction agree not to reduce the consideration but rather to divide it into a number of instalments or to defer payment.

31Of course, in a situation where the taxable person’s contractual partner defaults on the payment, the reduction in the amount to be received by the taxable person may not be final since, aside from a change in the contractual relationship between the parties, the taxable person remains a creditor in respect of the unpaid consideration and may recover it in the future. ⁹ Therefore, uncertainty arises as to the final nature of the reduction in the taxable amount. For that reason, Article 90(2) of Directive 2006/112 enables the Member States to derogate from paragraph 1 of that article in the case of non-payment. ¹⁰

32This does not alter the fact that if consideration is deferred or paid in instalments, the amount to be received by the taxable person is certainly not reduced. Therefore, there is also no reason to reduce the taxable amount. ¹¹

33While I agree with the German Government’s assertion that any reduction in the consideration to be received by a taxable person in respect of a taxable transaction relates to situations arising after the supply of the service which that transaction concerns, I consider this aspect not to be essential to the answer to the question referred for a preliminary ruling. Indeed, the fundamental importance here is the fact that consideration paid in instalments does not alter the amount that the taxable person is to receive in respect of that consideration and therefore the taxable amount of the transaction in question.

34In view of the above, in my opinion, Article 90(1) of Directive 2006/112 must be interpreted as meaning that where a taxable person making a one-time supply of services has agreed with the customer to divide the payment of consideration into a number of instalments, there is no non-payment within the meaning of that provision.

35Moreover, as the German Government observes, under Article 90(1) of Directive 2006/112 the reduction of the taxable amount takes place on the terms laid down by the Member States, as paragraph 2 of that article allows Member States not to apply it in the case of non-payment. Pursuant to Paragraph 17(2)(1) of the UStG, in the event of non-payment, the taxable amount is reduced only if the consideration becomes unrecoverable. This is not the case where the consideration is paid in instalments. Thus, German law, which complies in this respect with Directive 2006/112, does not allow the provisions transposing Article 90 of that directive to be applied where consideration for a taxable transaction is paid in instalments.

First question referred

36By its first question, the referring court seeks to establish, in essence, whether Article 64(1) of Directive 2006/112 must be interpreted as applying to a transaction consisting of a one-time supply of services for which the taxable person receives payment in instalments.

37This question is based on the finding of fact made by the referring court that the supply of services at issue in the main proceedings was a one-time supply and was performed in its entirety in the 2012 tax year. ¹² It is on that assumption that I base the following analysis of the first question.

Interpretation of Article 64(1) of Directive 2006/112

38As a reminder, pursuant to Article 64(1) of Directive 2006/112, in the case of transactions involving successive payments, the supply of services is regarded as being completed on expiry of the periods to which such payments relate. Therefore, the answer to the question referred requires an interpretation of the concept of transactions ‘giv[ing] rise to successive … payments’ within the meaning of that provision.

39Contrary to the Commission’s position, I believe that the wording of the provision itself does not provide a clear answer to this question.

40By contrast, Article 64(1) of Directive 2006/112 must be interpreted in the light of Article 63 of that directive. In accordance with the latter provision, the chargeable event occurs, and VAT becomes chargeable, when the service which is the subject of the transaction is supplied.

41Article 63 of the directive does not specify which event is to be regarded as the time of the supply. This means, in my view, that the EU legislature has adopted a substantive approach here, that is to say, that the relevant time is the time when the supply of the service is actually completed, determined, if necessary, by findings of fact made by the tax authorities or a court.

42In my view, therefore, Article 64(1) of the directive does not constitute a derogation from Article 63 of the directive as regards the determination of the time when VAT becomes chargeable, but merely supplements and provides clarification in situations which might give rise to doubt, since it clarifies the time when the supply of a service that involves successive payments should be regarded as being completed. That time is deemed to be the expiry of the periods to which such payments relate.

43Logically, however, such a conventional determination of the time when the supply of services is completed is only necessary in the case of services whose time of completion is difficult to determine unambiguously on the basis of the facts alone, in particular because the legal relationship between the parties to the transaction and the service which it concerns are continuous. In this situation, the supply of the service is deemed to continue as long as the obligation to pay for it continues.

44However, there is no need to extend the application of Article 64(1) of Directive 2006/112 to situations where the time when the supply of services is completed can be readily determined, in particular where the supply is of a one-time nature and there is a precise point in time at which its completion can be determined on the basis of the contractual relationship between the parties to the transaction, since such an extension of the scope of that provision would mean that it defines the chargeable event in a manner contrary to the express wording of Article 63 of that directive.

45Thus, a systemic interpretation of Article 64(1) of Directive 2006/112, primarily in the light of Article 63 of that directive, suggests that the answer to the first question referred for a preliminary ruling should be in the negative. I agree in principle with the Commission’s observations on this matter.

46Moreover, as the German Government rightly observes, a different interpretation of that provision would mean that the parties to a transaction would be free to manipulate the time at which tax becomes chargeable by fixing the time of payment of the consideration for the supply of goods or services accordingly. The Court has already had occasion to hold that the EU legislature intended to harmonise, as far as possible, the time at which VAT is to become chargeable in all the Member States in order to ensure uniform collection of VAT. ¹³ The objective of ensuring uniform tax collection applies not just to all Member States but also to all transactions of a similar nature, irrespective of secondary differences such as the manner in which consideration is paid. This is required by the principle of equal treatment and the need to ensure undistorted competition.

47The occurrence and amount of VAT liability depends on only three factors: the nature of the transaction, which determines its taxability and the tax rate; the amount of consideration, that is to say, the taxable amount; and the time of supply, which is, as a rule, identical to the chargeable event. On the other hand, the time when that consideration is paid is not a relevant factor when determining taxation in the VAT system.

48These conclusions are not called into question by the Court’s case-law cited by the referring court and by X in its observations, in particular by the judgments in Asparuhovo Lake Investment Company ¹⁴ and baumgarten sports & more. ¹⁵ The application in those cases of Article 64(1) of Directive 2006/112 was based on the continuous and long-term nature of the legal relationship between the parties to the transaction, with obligations of a continuous nature resting not only with the customer but also with the service provider, and the payment of the agreed consideration being subject to the performance of those obligations. ¹⁶ However, according to the referring court’s findings of fact, this is not the case in the main proceedings, which concerns the taxation of a one-time supply of services that was completed in its entirety at a certain point in time and for which the service provider is to be unconditionally paid in full.

49In view of the above, I agree with the Commission that the expression ‘successive payments’ as used in Article 64(1) of Directive 2006/112 is to be understood as referring to transactions which, on account of their recurring nature, require the payment of the consideration to be spread over time or made in instalments.

50That provision must therefore be interpreted as not applying to a transaction consisting of a one-time supply of services for which the taxable person receives payment in instalments.

Relationship between the liability to pay tax and the receipt of consideration for a taxable transaction

51Both the referring court in its order for reference and X in its written observations submit that in a situation such as that in the main proceedings, where payment of consideration for a one-time supply is spread over a longer period (five years in this instance), with VAT being charged on the payment of each instalment, the taxable person is forced to fund the VAT in full for an extended period of time despite not having yet received payment from the customer.

52As I have indicated in the proposed answer to the second question referred in the present case, the application of Article 90 of Directive 2006/112 is not the correct solution to the problem in this case. Similarly, the application of Article 64(1) of that directive does not, in my view, constitute such a solution.

53As I mentioned above, the chargeability of VAT does not, as a rule, depend on the receipt by the taxable person of consideration for the taxable transaction conducted by the taxable person. VAT may also become chargeable prior to the payment of such consideration. The Court has already had occasion to make this clear in its case-law. ¹⁷

54Where non-payment of the consideration provided for in the agreement between the parties to a taxable transaction is permanent, for instance as a result of the agreement being terminated or amended, or is beyond the taxable person’s control, as in the case of a defaulting contractual partner, Article 90 of Directive 2006/112 applies, and the taxable amount and thus also the tax liability are reduced accordingly.

55However, where a taxable transaction provides from the outset for the payment of the consideration to be deferred or divided into instalments, it is the taxable person who decides on the manner in which he or she conducts his or her economic activity, while being fully aware of the obligations, including tax obligations, entailed by that activity. It is up to the taxable person to decide whether to spread the payment of the consideration over time and on what terms.

56The solution in this case is either to charge and collect the entire VAT due on the first instalment or to allocate the first instalment to the payment of VAT. ¹⁸ In this way, the taxable person is not forced to pay the tax using his or her own funds.

57As regards X’s argument that payment in full of the VAT due after receipt of the first instalment of consideration would leave the taxable person with no profit on the transaction and even deprive him or her of the means to cover the costs of the service supplied, it should be pointed out that liability to VAT does not depend on the taxable person’s economic activities. ¹⁹ VAT is also charged on transactions that do not produce a profit and even on those that result in a loss. It is the task of economic operators, and not the VAT system, to ensure the profitability of their economic activity.

58The problem in the main proceedings may have arisen due to the manner in which X invoiced the transaction at issue. According to the information contained in the request for a preliminary ruling, the company issued a separate invoice for each instalment, including the VAT on that instalment, as payment for the supply. The referring court does not state whether the tax authorities challenged this method of invoicing in the main proceedings. However, it does not appear to be correct in the light of the provisions of Directive 2006/112.

59Directive 2006/112 lays down obligations of taxable persons in Title XI. Article 220 of that directive requires taxable persons to ensure that an invoice is issued where, inter alia, services are supplied to other taxable persons. Article 226 of that directive stipulates the details to be included on the invoice. These include, in particular, the extent and nature of the services rendered (point 6), the date on which the supply of services was completed (point 7), the taxable amount (point 8) and the VAT amount payable (point 10).

60As the Court has already had occasion to emphasise, the mandatory details included on the invoice, including, among other things, the type of services supplied and the date of their supply, are intended to allow the tax authorities to monitor in particular the payment of the tax due. ²⁰ That information must therefore correspond as closely as possible to the actual situation. In particular, a one-time supply should not be the subject of several invoices issued at long intervals, even if all the other details, in particular the total amount of VAT due, are correct.

61In the main proceedings, if X had issued a single correct invoice encompassing the entire taxable amount of the transaction at issue, the full amount of VAT due and the date on which the service was supplied, it would have been able to determine its tax obligations correctly and to shape its legal relationship with the customer appropriately in terms of the manner of payment of the consideration.

62Although it is true, as the referring court observes in its order, that the Court sometimes refers to taxable persons as ‘tax collectors’ on behalf of the State, ²¹ this in no way implies that the role of taxable persons is limited to that of tax collectors. Article 193 of Directive 2006/112 defines taxable persons as persons liable to pay VAT, ²² and there is nothing in the directive or in the Court’s case-law to indicate that that obligation is conditional on the taxable person first receiving the tax as a result of an output transaction. ²³

63By contrast, Article 66(b) of Directive 2006/112 allows Member States to provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person, no later than at the time the payment is received. ²⁴ However, this derogation from the general rules contained in Articles 63, 64 and 65 of that directive is optional and should apply to certain transactions or categories of taxable person rather than being of a general nature. The very existence of such an option indirectly confirms that, in principle, the chargeability of VAT does not depend on the receipt by the taxable person of the payment for the taxable transaction.

64As the German Government and the Commission rightly point out, the interpretation of Article 64(1) of Directive 2006/112 proposed by X, according to which merely dividing the payment of consideration into instalments makes it possible to correlate the chargeability of the tax with those instalments falling due, would render the provision of Article 66(b) of that directive largely meaningless.

65Therefore, the arguments regarding the need to pay tax before the taxable person receives the consideration in full do not alter the conclusion stated in point 50 of this Opinion.

Conclusions

66In the light of all the foregoing considerations, I propose that the following answer should be given to the questions referred for a preliminary ruling by the Bundesfinanzhof (Federal Finance Court, Germany):

Article 64(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as not applying to a transaction consisting of a one-time supply of services for which the taxable person receives payment in instalments.

Article 90(1) of Directive 2006/112 must be interpreted as meaning that where a taxable person making a one-time supply has agreed with the customer to divide the payment of consideration into a number of instalments, there is no non-payment within the meaning of that provision.

¹ Original language: Polish.

² OJ 2006 L 347, p. 1.

³ Consolidated text: BGBl. 2005 I, p. 386.

⁴ It is true that I have recently had occasion to challenge the correctness of findings of fact made by the same referring court as in the present case (see my Opinion in XY (Optional tax reduction), C‑100/20, EU:C:2021:387). However, the issue there was not the facts as such, but rather their classification from the point of view of EU law.

⁵ Article 1(2) of Directive 2006/112.

⁶ Article 73 of Directive 2006/112.

⁷ Article 90(1) of Directive 2006/112.

⁸ Judgment of 12 October 2017, Lombard Ingatlan Lízing (C‑404/16, EU:C:2017:759, paragraph 26).

⁹ Judgment of 12 October 2017, Lombard Ingatlan Lízing (C‑404/16, EU:C:2017:759, paragraph 29).

¹⁰ Judgment of 12 October 2017, Lombard Ingatlan Lízing (C‑404/16, EU:C:2017:759, paragraphs 28 and 29).

¹¹ As the German Government rightly points out, non-payment could only be deemed to have occurred if an instalment of the consideration were not paid on its due date. However, this cannot be assumed in advance.

¹² See point 19 of this Opinion.

¹³ Judgment of 2 May 2019, Budimex (C‑224/18, EU:C:2019:347, paragraph 22).

¹⁴ Judgment of 3 September 2015 (C‑463/14, EU:C:2015:542).

¹⁵ Judgment of 29 November 2018 (C‑548/17, EU:C:2018:970).

¹⁶ See, respectively, judgments of 3 September 2015, Asparuhovo Lake Investment Company (C‑463/14, EU:C:2015:542, paragraphs 47 and 49), and of 29 November 2018, baumgarten sports & more (C‑548/17, EU:C:2018:970, paragraphs 30 and 31).

¹⁷ ‘… under Article 63 of … [D]irective [2006/112], VAT is to become chargeable when the goods or the services are supplied, that is, when the transaction in question takes place, regardless whether the consideration due for that transaction has already been paid. Accordingly, VAT is due to the Treasury by the supplier of goods or services, even where he has not yet received from his client the payment relating to the transaction carried out.’ Therefore, ‘it follows that, under the system set up by Directive 2006/112, the chargeability of VAT and the creation and exercise of the right to deduct are, in principle, independent of whether or not the consideration, including VAT, due for a transaction has already been paid’ (judgment of 28 July 2011, Commission v Hungary, C‑274/10, EU:C:2011:530, paragraphs 46 and 48).

¹⁸ According to the information provided by X in the main proceedings, the amount of the first instalment received by that company exceeded the amount of VAT due on the transaction in question.

¹⁹ Article 9(1) of Directive 2006/112 provides that ‘“taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity’.

²⁰ Judgment of 15 September 2016, Barlis 06 – Investimentos Imobiliários e Turísticos (C‑516/14, EU:C:2016:690, paragraphs 26, 27, 29 and 30).

²¹ See, in particular, judgments of 20 October 1993, Balocchi (C‑10/92, EU:C:1993:846, paragraph 25), and of 23 November 2017, Di Maura (C‑246/16, EU:C:2017:887, paragraph 23).

²² Save where, under special provisions, other persons are liable to pay that tax.

²³ This is clear, for instance, from the judgment of 20 October 1993, Balocchi (C‑10/92, EU:C:1993:846), cited by the referring court, where the Court expressly makes the obligation to pay tax conditional on the transaction having been carried out, but not on payment having been received.

²⁴ Such an option is provided for by Paragraph 13(1)(1)(b) of the UStG, read in conjunction with Paragraph 20 thereof, but is not applicable in the main proceedings.