C-427/10 Banca Antoniana Popolare Veneta

JUDGMENT OF THE COURT (Third Chamber)

15 December 2011 (*)

(VAT – Recovery of VAT paid but not due – National legislation under which actions may be brought for the recovery of sums paid but not due, before different courts and subject to different time-limits, depending on whether the claimant is the recipient of the services or their supplier – Possibility for the recipient to claim a VAT refund from the supplier after the expiry of the time-limits within which the supplier is able to bring an action against the tax authority – Principle of effectiveness)

In Case C‑427/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Italy), made by decision of 7 June 2010, received at the Court on 31 August 2010, in the proceedings

Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA,

v

Ministero dell’Economia e delle Finanze,

Agenzia delle Entrate,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, E. Juhász, G. Arestis (Rapporteur), T. von Danwitz and D. Šváby, Judges,

Advocate General: J. Mazák,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 16 June 2011,

after considering the observations submitted on behalf of:

– Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA, by A. Fantozzi, R. Tieghi and R. Esposito, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, assisted by G. De Bellis, avvocato dello Stato,

– the German Government, by T. Henze and C. Blaschke, acting as Agents,

– the United Kingdom Government, by S. Hathaway, acting as Agent, assisted by P. Mantle, Barrister,

– the European Commission, by D. Recchia and R. Lyal, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 September 2011,

gives the following

Judgment

Legal context and the dispute

1This reference for a preliminary ruling concerns the interpretation of the principles of tax neutrality, effectiveness and non-discrimination in the context of value added tax (‘VAT’).

2The reference has been made in proceedings between, on the one hand, Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA, (‘BAPV’) and, on the other, the Ministero dell’Economia e delle Finanze and the Agenzia delle Entrate (collectively, ‘the tax authority’), concerning the tax authority’s refusal to grant BAPV a refund of the VAT which, albeit not due, had been levied on the supply by BAPV of services consisting in the collection of contributions due to a number of consortia.

Legal context

European Union (‘EU’) legislation

3Article 2 of 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’), provides:

‘The following shall be subject to value added tax:

1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such;

…’

4Under points 2 and 3 of Article 13B(d) of the Sixth Directive:

‘B. Other exemptions

Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse:

…

(d) the following transactions:

…

2. the negotiation of or any dealings in credit guarantees or any other security for money and the management of credit guarantees by the person who is granting the credit;

3. transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection and factoring’.

5Under the first paragraph of Article 13C of that directive:

‘C. Options

Member States may allow taxpayers a right of option for taxation in cases of:

…

(b) the transactions covered in B(d) ... above.’

6Paragraph 1(a) of Article 21 of the Sixth Directive, which is entitled ‘Persons liable to pay tax to the authorities’, states:

‘The following shall be liable to pay value added tax:

1. under the internal system:

(a) taxable persons who carry out taxable transactions other than those referred to in Article 9(2)(e) and carried out by a taxable person resident abroad. When the taxable transaction is effected by a taxable person resident abroad Member States may adopt arrangements whereby tax is payable by someone other than the taxable person residing abroad. Inter alia a tax representative or other person for whom the taxable transaction is carried out may be designated as such other person. The Member States may also provide that someone other than the taxable person shall be held jointly and severally liable for payment of the tax’.

National legislation

7Article 10(5) of Presidential Decree No 633 of 26 October 1972 establishing and governing value added tax (ordinary supplement to GURI No 1 of 11 November 1972, p. 1; ‘DPR No 633/72’), provides:

‘The following shall be exempt from VAT:

…

5. transactions relating to the collection of taxes, including those relating to tax payments made on behalf of taxpayers by credit societies or institutions, in accordance with specific statutory provisions’.

8Under Article 21 of Legislative Decree No 546 of 31 December 1992 laying down provisions relating to proceedings before the tax courts, pursuant to the powers delegated to the Government by Article 30 of Law No 413 of 30 December 1991 (ordinary supplement to GURI No 8 of 13 January 1993, p. 1):

‘1. In order to be admissible, the action must be brought within 60 days of the date on which the contested measure was notified. Notification of the notice of assessment is equivalent to notification of the tax roll.

2. An action against a tacit refusal to grant a refund, as referred to in Article 19(1)(g), may be brought from the 90th day following the submission of an application for a refund within the time-limits laid down in the individual tax statute, up until such time as the right to a refund becomes time-barred. Save where specific provision is made, the application for a refund may not be submitted more than two years after the date of payment or the date on which the conditions for a refund arise, if later.’

9Article 2033 of the Civil Code, which governs the payment of tax which is not due, provides:

‘Anyone who has made a payment which is not due shall be entitled to reclaim the monies paid. In addition, the person concerned shall be entitled to interest reckoned from the date of the payment where the person who received the payment was not acting in good faith or, where the recipient acted in good faith, from the date of issue of the demand for payment (Article 163 of the Code of Civil Procedure).’

10Article 2946 of the Civil Code lays down the general rule governing the time-barring of actions:

‘Except where otherwise provided by law, rights of action shall lapse on the expiry of a period of 10 years.’

11In accordance with Article 2935 of the Civil Code, time for the purposes of bringing proceedings starts to run from the date on which the right can be relied upon.

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

12From 1984 to 1994, BAPV supplied a service consisting in the collection of consortium contributions, due from members, on behalf of three Consorzi di Bonifica (land reclamation consortia), that is to say, public bodies governed by national and regional laws and tasked with carrying out public infrastructure works. As the payments received in return for those services were subject to VAT, BAPV charged VAT on those supplies to the consortia. BAPV regularly paid the VAT to the tax authority in accordance with the statutory procedure since, at the time, the collection of consortium contributions was not regarded by the tax authority as falling within the exemption provided for under Article 10(5) of DPR No 633/72.

13By administrative circular dated 26 February 1999, the tax authority announced that it had changed its original interpretation of that provision, taking the view that the contributions to the consortia were fiscal in nature and, in consequence, that the payments due from the consortia in return for the collection of contributions were to be regarded as exempt from VAT for the purposes of Article 10(5) of DPR No 633/72.

14Accordingly, the land reclamation consortia asked SIFER SpA, the company which had succeeded BAPV, for the refund – by way of sums paid but not due, for the purposes of Article 2033 of the Civil Code – of the VAT paid on the payments for the collection of contributions. Following the action brought before the Tribunale civile di Ferrara (Ferrara Civil Court) by one of the consortia, BAPV was ordered to repay those sums.

15BAPV brought a claim against the tax authority for a VAT refund equivalent in amount to the sums claimed back by the recipients of the services. When faced with an implied decision rejecting that claim, BAPV brought before the Commissione tributaria provinciale di Roma (Provincial Tax Court of Rome) three separate actions, all of which were upheld.

16However, the tax authority appealed against those three decisions and, after joining the appeals, the Commissione tributaria regionale del Lazio (Provincial Tax Court of Lazio) found that BAPV’s right to a refund had lapsed since its claim for a refund had been entered after the expiry of the specific two-year time‑limit, with effect from payment of the VAT, laid down in Article 21(2) of Legislative Decree No 546 of 31 December 1992. In that connection, the Commissione tributaria regionale del Lazio stated that the administrative circular of 26 February 1999 could not constitute a chargeable event from which time for the purposes of that time-limit started to run.

17BAPV brought an appeal in cassation against that judgment before the Corte suprema di cassazione.

18The Corte suprema di cassazione has doubts as to whether the national procedural rules are compatible with the guiding principles relating to VAT, given the fact that those rules can give rise to situations like that at issue before it, which result in a substantive denial of the right to a refund of VAT paid but not due . The Corte suprema di cassazione notes that BAPV, which paid the VAT to the tax authority, is compelled, pursuant to a judgment by a civil court, to refund the VAT to the person who paid the charge, but cannot then obtain reimbursement from the tax authority. Ultimately, therefore, the provisions of national law governing procedure and the rules of substantive law governing the reimbursement of VAT paid but not due make it virtually impossible to exercise the right to a refund.

19In those circumstances, the Corte suprema di cassazione decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Do the principles of effectiveness, non-discrimination and tax neutrality in relation to VAT preclude national rules or practice in accordance with which the right of the purchaser/client to reimbursement of VAT paid in error is construed, in contrast to the right exercised by the principal debtor (supplier/provider of the service), as a right under the ordinary law to the recovery of sums paid but not due, and time-limits are applied in the case of the purchaser/client which are significantly more generous than those applied to the principal debtor, with the result that the claim of the purchaser/client, brought after the time-limits for the principal debtor have expired, can give rise to an order directing the principal debtor to provide reimbursement, while it is no longer possible for the latter to claim a refund from the tax authority and there is no provision for any bridging instrument, designed to prevent conflicts or disputes, to coordinate the proceedings brought or to be brought before the various courts?

2. Quite apart from that situation, are the above principles compatible with national practice or case-law under which it is possible for a judgment to direct that the purchaser/client be reimbursed by the supplier/provider of the service, where the latter has not brought a reimbursement claim before another court within the time allowed for that purpose – in reliance on an interpretation, handed down by case-law and subsequently implemented through administrative practice, to the effect that the transaction was subject to VAT?’

Consideration of the questions referred

The first question

20By its first question, the referring court asks, in essence, whether the principles of effectiveness, tax neutrality and non-discrimination preclude national rules governing the recovery of sums paid but not due, such as those at issue in the main proceedings, under which the specific time-limits for bringing a claim for a tax refund are narrower than the time-limits for bringing a civil law action for recovery of sums paid but not due, with the result that a recipient of services bringing such an action against the provider of those services can obtain a refund from that provider of VAT paid but not due, whereas the provider cannot in turn obtain a refund from the tax authority.

21First of all, it should be noted that, as a general rule, the Court will refrain from considering the principle of tax neutrality with a view to ascertaining whether EU law precludes national rules which lay down time-limits within which a VAT refund must be claimed, failing which the action is time-barred (see, to that effect, Case C‑85/97 SFI [1998] ECR I‑7447, paragraphs 22 to 36; Case‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraphs 22 to 47; and Case C‑472/08 Alstom Power Hydro [2010] ECR I‑623, paragraphs 14 to 22).

22As the Court ruled in Case C‑35/05 Reemtsma Cigarettenfabriken [2007] ECR I‑2425, in the absence of Community rules on claims for the repayment of taxes paid but not due, it is for the domestic legal system of each Member State to lay down the conditions in accordance with which such claims may be made; those conditions must be consistent with the principles of equivalence and effectiveness, that is to say, they must not be less favourable than those relating to similar claims founded on provisions of domestic law or so framed as to render virtually impossible the exercise of rights conferred by the Community legal order (paragraph 37).

23In paragraph 42 of Reemtsma Cigarettenfabriken, the Court held, in particular, that the principle of effectiveness does not preclude national legislation under which only the supplier/provider of services may seek reimbursement of the sums paid, but not due, by way of VAT to the tax authorities and the recipient of those services may bring a civil law action against that supplier/provider for recovery of sums paid but not due.

24The Court has also stated that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings, in the interests of legal certainty, which protects both the taxpayer and the authorities concerned. Such time-limits do not make it virtually impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, Case C‑228/96 Aprile [1998] ECR I‑7141, paragraph 19, and Case C‑262/09 Meilicke and Others [2011] ECR I‑0000, paragraph 56).

25That is the position in the case of a two-year time-limit since, in principle, that enables any normally attentive taxable person validly to assert the rights derived from EU law (see, to that effect, Alstom Power Hydro, paragraphs 20 and 21). This is true also of a two-year time-limit in respect of the right to a refund of VAT paid, but not due, to the tax authority.

26The Court has also held that the principle of effectiveness is not infringed where the time-limits prescribed by national law are allegedly more advantageous for the tax authorities than the time-limits in force for individuals (see Joined Cases C‑89/10 and C‑96/10 Q-Beef and Bosschaert [2011] ECR I‑0000, paragraph 42).

27Consequently, to prescribe by way of specific time-limit a two-year period during which the taxable person may claim from the tax authority a refund of VAT paid but not due, while at the same time actions between individuals for the recovery of sums paid but not due are subject to a time-limit of 10 years, is not as such contrary to the principle of effectiveness.

28The Court has held, however, that where reimbursement of the VAT would become impossible or excessively difficult, the Member States must, in order to respect the principle of effectiveness, provide the instruments necessary to enable the recipient of the services to recover the tax which was invoiced but not due (see, to that effect, Reemtsma Cigarettenfabriken, paragraph 42).

29Those same considerations must prevail where the fact that it is impossible or excessively difficult to obtain reimbursement of the VAT paid but not due affects, not the recipient of the services, but the provider.

30It also follows from the case-law that the principle of effectiveness would be infringed if the taxable person had neither the right to obtain reimbursement of the tax concerned during the period allowed for bringing a claim against the tax authority, nor – after an action for recovery of sums paid but not due has been brought against him by his clients subsequent to the expiry of that period – the possibility of bringing proceedings against the tax authority, with the result that the consequences of the VAT payments made but not due, attributable to the State, would be borne by the taxable person alone (see, by analogy, Q-Beef and Bosschaert, paragraph 43).

31Likewise, the Court has held that a national authority may not rely on the expiry of a reasonable time-limit if the conduct of the national authorities, combined with the existence of a time-limit, means that a person is totally deprived of any possibility of enforcing his rights before the national courts (see, by analogy, Q‑Beef and Bosschaert, paragraph 51).

32In the case before the referring court, it should be noted, first of all, that – as the European Commission pointed out at the hearing – it would have been impossible or, at the very least, excessively difficult for BAPV to obtain, by means of an action brought within the two-year time-limit, a refund of the VAT paid in the years from 1984 to 1994, particularly in view of the position adopted by the tax authority – and confirmed, according to the information provided by the referring court, by the case-law of the national courts – which dismissed the possibility that the services supplied by BAPV fell within the exemption provided for under Article 10(5) of DPR No 633/72.

33Also, by attributing retroactive effect to the Circular of 26 February 1999, the interpretation provided by the referring court and by the court decision referred to in paragraph 16 above has the result of moving the starting point of actions for recovery back to the date on which the VAT was paid, which – given that the service provider had no more than two years in which to bring an action against the tax authority for the recovery of sums paid but not due – totally deprived the provider of any possibility of recovering the tax paid but not due.

34Lastly, it is common ground that the consortia brought an action for the recovery of sums paid but not due after the expiry of the two-year specific limitation period during which it was open to BAPV, with effect – according to the case-law interpretation mentioned above – from the date on which the VAT was paid, to claim a refund from the tax authority of the VAT paid but not due.

35The consortia brought an action for recovery of sums paid but not due following publication of the Circular of 26 February 1999 by which the tax authority changed its interpretation of the nature of the transactions at issue in the main proceedings, thereafter regarding them as exempt from VAT.

36Consequently, it should be noted that, in a situation such as that at issue before the referring court, it is BAPV itself which bears the cost of paying the VAT which was not due, without any possibility of effectively claiming a refund from the tax authority because the two-year time-limit has expired, even though such a situation is not its fault, but a result of the fact that, prompted by the Circular of 26 February 1999, the recipients of the services brought an action against BAPV, after the expiry of the above time-limit, for the recovery of sums paid but not due.

37There is nothing in the case-file forwarded by the referring court to suggest that BAPV did not act as a prudent and alert economic operator in collecting consortium contributions in return for the payment of a price including VAT and in paying the VAT to the tax authority.

38In that regard, it is apparent from the order for reference that BAPV correctly applied VAT to the transactions consisting in the collection of consortium contributions and correctly paid that tax to the tax authority, consistently with the practice of the tax authority at the time when the transactions were invoiced.

39The Italian Government noted, however, that the question of the status of those transactions with regard to VAT has been a controversial issue for some time, with the result that no prudent and alert economic operator could have a legitimate expectation that those transactions would continue to be subject to VAT.

40However, it should be observed that it was not until the Circular of 26 February 1999 that it became clear that the tax authority, which is the administrative authority responsible for ensuring that the relevant legislation is applied, expressly stated that the consortium contributions were fiscal in nature and that, accordingly, the payments owed by the consortia should be regarded as exempt from VAT for the purposes of Article 10(5) of DPR No 633/72. As a consequence, such a circular retroactively reopened the question whether transactions consisting in the collection of those contributions were subject to VAT.

41In such a situation, the tax authority must take account of the particular situations of the economic operators and, where appropriate, provide for adjustments to the way in which its new legal assessments of those transactions are applied (see, to that effect, Case C‑201/08 Plantanol [2009] ECR I‑8343, paragraph 49).

42It is apparent from the above considerations that the principle of effectiveness does not preclude national rules governing the recovery of sums paid but not due, under which the time-limits for a civil law action for recovery of sums paid but not due, brought by the recipient of services against the supplier, a taxable person for the purposes of VAT, are more generous than the specific time-limits for a fiscal law action for a tax refund, brought by the supplier against the tax authority, provided that it is possible for that taxable person effectively to claim reimbursement of the VAT from the tax authority. That condition is not satisfied where the application of such rules has the effect of totally depriving the taxable person of the right to obtain from the tax authority a refund of the VAT paid but not due, which the taxable person has himself had to pay back to the recipient of his services.

The second question

43In the light of the answer given to the first question, there is no need to answer the second question.

Costs

44Since 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 (Third Chamber) hereby rules:

The principle of effectiveness does not preclude national rules governing the recovery of sums paid but not due, under which the time-limits for a civil law action for recovery of sums paid but not due, brought by the recipient of services against the supplier, a taxable person for the purposes of VAT, are more generous than the specific time-limits for a fiscal law action for a tax refund, brought by the supplier against the tax authority, provided that it is possible for that taxable person effectively to claim reimbursement of the VAT from the tax authority. That condition is not satisfied where the application of such rules has the effect of totally depriving the taxable person of the right to obtain from the tax authority a refund of the VAT paid but not due, which the taxable person has himself had to pay back to the recipient of his services.

Signatures

[Signatures]

Notes

* Language of the case: Italian.

JUDGMENT OF THE COURT (Fifth Chamber)

6 October 2011 (*)

(VAT – Sixth Directive – Article 21(1)(b) – Determination of the place of reference for tax purposes – Services provided by a supplier residing in the same country as the customer but having established the seat of his economic activities in another country – Concept of ‘taxable person established abroad’)

In Case C‑421/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Germany), made by decision of 30 June 2010, received at the Court on 25 August 2010, in the proceedings

Finanzamt Deggendorf

v

Markus Stoppelkamp, acting in his capacity as insolvency administrator of the estate of Harald Raab,

THE COURT (Fifth Chamber),

composed of J.‑J. Kasel (Rapporteur), President of the Chamber, E. Levits and M. Safjan, Judges,

Advocate General: J. Mazák,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the German Government, by C. Blaschke and T. Henze, acting as Agents,

– the Greek Government, by F. Dedousi, I. Pouli and I. Bakopoulos, acting as Agents,

– the European Commission, by W. Mölls and L. Lozano Palacios, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

Introduction

1The present reference for a preliminary ruling concerns the interpretation of Article 21(1)(b) of 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), as amended by Council Directive 2000/65/EC of 17 October 2000 (OJ 2000 L 269, p. 44) (‘the Sixth Directive’).

2The reference has been made in proceedings between Mr Stoppelkamp, in his capacity as insolvency administrator of the estate of Mr Raab, and the Finanzamt Deggendorf (Deggendorf Tax Office; ‘the Finanzamt’), relating to the determination of the person who is liable for the value added tax (‘VAT’) payable in respect of services provided by Mr Raab.

Legal context

European Union law

3Article 4(1) of the Sixth Directive provides:

‘“Taxable person” shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity.’

4Article 9(1) of the Sixth Directive provides:

‘The place where a service is supplied shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.’

5Article 9(2)(e) of the Sixth Directive provides:

‘However:

…

(e) the place where the following services are supplied, when performed for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier, shall be the place where the customer has established his business or has a fixed establishment to which the service is supplied or, in the absence of such a place, the place where he has his permanent address or usually resides:

…

– the supply of staff,

…’

6Article 21 of the Sixth Directive is worded as follows:

‘1. Under the internal system, the following shall be liable to pay value added tax:

(a) the taxable person carrying out the taxable supply of goods or of services, except for the cases referred to in (b) and (c).

Where the taxable supply of goods or of services is effected by a taxable person who is not established within the territory of the country, Member States may, under conditions determined by them, lay down that the person liable to pay tax is the person for whom the taxable supply of goods or of services is carried out;

(b) taxable persons to whom services covered by Article 9(2)(e) are supplied or persons who are identified for value added tax purposes within the territory of the country to whom services covered by Article 28b(C), (D), (E) and (F) are supplied, if the services are carried out by a taxable person not established within the territory of the country;

…’

7Article 1 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) (‘the Eighth Directive’) provides:

‘For the purposes of this Directive, “a taxable person not established in the territory of the country” shall mean a person as referred to in Article 4(1) of Directive 77/388/EEC who, during the period referred to in the first and second sentences of the first subparagraph of Article 7(1), has had in that country neither the seat of his economic activity, nor a fixed establishment from which business transactions are effected, nor, if no such seat or fixed establishment exists, his domicile or normal place of residence, and who, during the same period, has supplied no goods or services deemed to have been supplied in that country, with the exception of:

(a) transport services and services ancillary thereto, exempted pursuant to Article 14(1)(i), Article 15 or Article 16(1), B, C and D of Directive 77/388/EEC;

(b) services provided in cases where tax is payable solely by the person to whom they are supplied, pursuant to Article 21(1)(b) of Directive 77/388/EEC.’

National legislation

8Paragraph 1(1) No 1, first sentence, of the Law on turnover tax (Umsatzsteuergesetz 1999, BGB1. 1999 I, p. 1270), in the version applicable to the dispute in the main proceedings (‘the UStG’), provides that ‘supplies of goods and services effected for consideration within the territory of the country by a trader in the course of his business’ are to be subject to turnover tax.

9Paragraph 3a of the UStG provides:

‘(1) A supply of services is effected in the place from which the trader carries on his business, subject to Paragraphs 3b and 3f. If the supply is effected from a permanent establishment, the location of the establishment shall constitute the place of supply.

…

(3) Where the customer to whom one of the services mentioned in subparagraph 4 is supplied is a trader, by way of derogation from subparagraph 1, the service shall be deemed to be supplied in the place where that person carries on his business. If the service is supplied at the permanent establishment of a trader, the location of the permanent establishment shall instead be decisive. Where the person to whom one of the services listed in subparagraph 4 is supplied is not a trader and is resident or established in the territory of a third country, the service shall be deemed to be supplied at his place of residence or establishment …

(4) For the purposes of subparagraph 3, “services” shall mean:

…

7. the supply of staff;

…’

10Paragraph 13b(4) of the UStG states:

‘A trader established abroad is a trader who does not have his domicile, seat, head office, or any branch in the territory of the country, in Heligoland or in one of the territories listed in Paragraph 1(3). The relevant date is the date on which the service is supplied. If it is doubtful whether the trader fulfils those conditions, the person to whom the services are supplied shall not be liable to tax only if the trader can prove to him, by way of a certificate from the tax office responsible under the fiscal legislation for the taxation of his transactions, that he is not a trader within the meaning of the first sentence.’

The dispute in the main proceedings and the question referred

11In the course of 2002, Mr Raab transferred the seat of his economic activity from Germany to Austria. He then declared, at two locations in Austria, that he was exercising a professional activity described as ‘Überstellungs-, Administrations- und Fahrdienst’ (transfer, administration and transport services). His economic activity consisted in the supply of his own staff to companies established in Lower Bavaria to perform transport services throughout Germany.

12On 1 July 2002, Mr Raab also transferred his personal residence from Germany to Austria. However, according to the findings of the competent customs authorities, Mr Raab, even after this official change of residence, continued frequently to live in Germany.

13The Austrian fiscal authorities issued a VAT identification number to Mr Raab. He invoiced his services to German transport companies exclusive of VAT with the statement ‘the person to whom the services were supplied is liable for payment of tax in accordance with Paragraph 13b of the UStG’.

14The Finanzamt took the view that the conditions for the reverse charge procedure imposing the tax liability on the customer under Paragraph 13b(1), No 1, first sentence, in conjunction with Paragraph 13b(4), were not met. According to the Finanzamt, Mr Raab was not a taxable person established abroad since his personal residence in the year at issue had been within the country. The Finanzamt therefore issued a VAT assessment notice to Mr Raab’s address.

15Mr Raab brought an action against that notice. The first-instance court upheld that action on the ground that, in 2002, the seat of Mr Raab’s economic activity was in Austria. In the light of the provisions of Article 21(1)(a) of the Sixth Directive, Paragraph 13b of the UStG, it ruled, had to be interpreted as meaning that, in order for a taxable person to be established abroad, the place of the seat of the undertaking alone was relevant. Thus, where, as in the case before that court, such a seat existed, the existence, at the same time, of a personal residence within the country was irrelevant.

16In support of its appeal on a point of law (‘Revision’) to the Bundesfinanzhof (Federal Finance Court), the Finanzamt submits that the first-instance court infringed Paragraph 13b(4) of the UStG, which, in its view, makes it clear that a trader cannot be considered to be established abroad if he is resident within the country.

17The Bundesfinanzhof expresses doubts as to whether the German legislation is compatible with European Union law because, according to that German legislation, the criterion of ‘trader established abroad’, laid down as a condition for the application of the reverse charge procedure, is not satisfied where the trader has established his business outside Germany, but has a personal residence within Germany. Under Article 21(1)(b) of the Sixth Directive, it is sufficient, in order for the taxable person to whom the services are supplied to be liable for payment of the VAT, that the services be supplied by an ‘im Ausland ansässigen Steuerpflichtigen’ (taxable person not established within the country). However, that concept is not defined in Article 21 of the Sixth Directive or in any other provision of that directive.

18In those circumstances, the Bundesfinanzhof decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is a taxable person to be regarded as “a taxable person established abroad” within the meaning of Article 21(1)(b) of [the Sixth Directive] simply because the place where he has established his business is abroad, or is it an additional requirement that his personal residence must also be abroad?’

The question referred for a preliminary ruling

19First, it must be noted that it is apparent from a combined reading of, in particular, the French- and German-language versions of Article 21(1)(b) of the Sixth Directive that the German-language version does not, in this instance, employ the terms ‘taxable person who is not established within the territory of the country’. That version uses the terms ‘im Ausland ansässigen Steuerpflichtigen’, the literal translation of which is to be understood as ‘taxable person established abroad’.

20The question referred must therefore be construed as asking, essentially, whether Article 21(1)(b) of the Sixth Directive must be interpreted as meaning that, in order to be considered an ‘im Ausland ansässigen Steuerpflichtigen’ (taxable person who is not established within the territory of the country), within the meaning of the German-language version of that provision, it is sufficient for the taxable person to have established the seat of his economic activity outside the country or whether, in addition, his personal residence must not be within the territory of the country.

21In that regard, it should be pointed out, as the referring court has done, that there is no definition in the German-language version of the Sixth Directive of the concept of ‘taxable person established abroad’.

22However, it must be stated that the concept in question featured, prior to the amendments introduced by Directive 2000/65, not only in the German-, but also, in particular, in the Spanish-, Danish-, English-, French-, Italian-, Dutch-, Portuguese- and Swedish-language versions of Article 21(1)(b) of the Sixth Directive. Following the entry into force of that amending directive, all of those language versions now employ, in contrast to the German-language version, the concept corresponding to that of ‘taxable person who is not established within the territory of the country’.

23That concept, unlike that used in the German-language version of the Sixth Directive, not only features in other provisions of the latter, including Article 17(4), but has also been defined in a separate provision of European Union law.

24Article 1 of the Eighth Directive defines the concept of ‘taxable person not established within the territory of the country’ (judgment of 16 July 2009 in Case C‑244/08 Commission v Italy, paragraph 26).

25For the purposes of that article, the status of taxable person not established within the territory of the country presupposes that the taxable person does not display in that country, during the reference period, any of the connecting factors identified therein (see, to that effect, Commission v Italy, paragraph 27).

26Foremost among those factors are the seat of the economic activity and the existence of a fixed establishment from which business transactions are effected (see, to that effect, Commission v Italy, paragraph 28).

27As is apparent from the wording of Article 1 of the Eighth Directive, the other connecting factors there enumerated, namely the domicile or normal place of residence of the taxable person, can be relied on to determine where the taxable person is considered to be ‘established’ only in the absence of relevant information concerning the seat of the economic activity or the fixed establishment from which business transactions are carried out.

28It follows that, in a situation such as that at issue in the main proceedings, which is characterised, on the one hand, by the fact that the seat of the economic activity of the taxable person is known and is located outside the country of the customer and, on the other, by the circumstance that it is not disputed that this is the actual, genuine seat and not a fictitious seat or presence, any personal residence which the taxable person may have within the country cannot be taken into account.

29That conclusion is, moreover, consistent with the Court’s case-law relating to the determination, in the area of VAT, of a company’s place of business, in particular its judgment in Case C‑73/06 Planzer Luxembourg [2007] ECR I‑5655 concerning the interpretation of Article 1 of Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes – Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ 1986 L 326, p. 40).

30As the Court held at paragraph 61 of that judgment, determination of a company’s place of business requires a series of factors to be taken into consideration, foremost among which are its registered office, the place of its central administration, the place where its directors meet and the place, usually identical, where the general policy of that company is determined.

31Other factors, such as the place of residence of the main directors and the place where general meetings are held, may also need to be taken into account during a second phase, for example when determining the effective place of business of a company exhibiting a fictitious presence, such as that of a ‘letter-box’ company (see, to that effect, Planzer Luxembourg, paragraphs 61 and 62).

32An interpretation according to which, in the context of the determination of the place of establishment of the taxable service provider, the latter’s personal residence can be taken into account only in the absence of connecting factors directly linked to the economic activity carried on by that service provider, such as the seat of the economic activity or the existence of a fixed establishment from which business transactions are effected, is also consistent with the logic underpinning Article 4(1) of the Sixth Directive, in that that provision defines the taxable person only by reference to the economic activity which he performs.

33It should be added that the objective of Article 21(1)(b) of the Sixth Directive is to release the taxable person established in one Member State from the requirement to respect the obligations flowing from Article 22 of that directive in other Member States in which he supplies goods or provides a service. Excluding the reverse charge procedure in a case such as that at issue in the main proceedings would have the effect of seriously compromising the attainment of that objective.

34Moreover, as the referring court has noted, the foregoing interpretation is that which offers the greatest legal certainty in so far as the presumption that the services are provided by a ‘taxable person not established within the territory of the country’ when the seat of that person’s economic activity is located outside that country, wherever his personal residence may be, is such as to simplify the application of the provisions of the Sixth Directive and, therefore, contributes to ensuring accurate and reliable collection of VAT.

35Indeed, that presumption allows the customer established in a country, who is aware that the supplier has the seat of his economic activity outside that country, as is the case in the main proceedings, to avoid having to undertake research concerning the personal residence of that supplier.

36In the light of the foregoing considerations, the answer to the question referred is that Article 21(1)(b) of the Sixth Directive must be interpreted as meaning that, in order for him to be considered a ‘taxable person who is not established within the territory of the country’, it is sufficient that the taxable person should have established the seat of his economic activity outside that country.

Costs

37Since 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.

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

Article 21(1)(b) of 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, as amended by Council Directive 2000/65/EC of 17 October 2000, must be interpreted as meaning that, in order for him to be considered a ‘taxable person who is not established within the territory of the country’, it is sufficient that the taxable person should have established the seat of his economic activity outside that country.

Signatures

[Signatures]

Notes

* Language of the case: German.