C-60/23 Digital Charging Solutions

JUDGMENT OF THE COURT (Fifth Chamber)

17 October 2024 ( *1 )

(Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Articles 14 and 15 – Electric vehicle charging – Charging using devices provided by a company and allowing access to a network of charging points operated by different operators – Classification of the transaction for VAT purposes – ‘Supply of goods’ – Transfer made under commission contracts)

In Case C‑60/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), made by decision of 3 February 2023, received at the Court on 6 February 2023, in the proceedings

Skatteverket

v

Digital Charging Solutions GmbH,

THE COURT (Fifth Chamber),

composed of I. Jarukaitis, President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Gratsias (Rapporteur), and E. Regan Judges,

Advocate General: T. Ćapeta,

Registrar: A. Lamote, Administrator,

having regard to the written procedure and further to the hearing on 7 February 2024,

after considering the observations submitted on behalf of:

Skatteverket, by A.-S. Pallasdies, acting as Agent,

Digital Charging Solutions GmbH, by U. Grefberg,

the Swedish Government, by H. Eklinder and F.-L. Göransson, acting as Agents,

the Hungarian Government, by Zs. Biró-Tóth and Z. Fehér, acting as Agents,

the European Commission, by M. Björkland and M. Herold, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 April 2024,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 14 and 15 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2009/162/EU of 22 December 2009 (OJ 2010 L 10, p. 14) (‘Directive 2006/112’).

2The request has been made in proceedings between Digital Charging Solutions GmbH, a company incorporated under German law, and the Skatteverket (Tax Agency, Sweden) concerning the validity of the latter’s tax ruling dated 8 April 2022 (‘the tax ruling’).

Legal context

European Union law

3The second subparagraph of Article 1(2) of Directive 2006/112 provides as follows:

‘On each transaction, [value added tax (VAT)], calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components.’

4Under Article 2(1) of that directive:

‘The following transactions shall be subject to VAT:

the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…

the supply of services for consideration within the territory of a Member State by a taxable person acting as such;

…’

5Article 14 of that directive provides:

‘(1) “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner.

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

…

the transfer of goods pursuant to a contract under which commission is payable on purchase or sale.

…’

6Article 15(1) of that directive provides:

‘Electricity, gas, heat or cooling energy and the like shall be treated as tangible property.’

Swedish law

7In accordance with point 1 of the first subparagraph of Paragraph 1 of Chapter 1 of the mervärdesskattelagen (1994:200) (Law (1994:200) on value added tax) of 30 March 1994 (SFS 1994 No 200) (‘the VAT Law’), VAT is to be paid on supplies of goods or services in the national territory which are taxable and are effected by a taxable person acting as such.

8Under Paragraph 6 of Chapter 1 of the VAT Law, ‘goods’ are to be understood as meaning tangible property, including immovable property and gas, heat, cooling energy and electricity. That paragraph further provides that a supply of services is understood as meaning any supply other than a supply of goods.

9Point 1 of the first subparagraph of Paragraph 1 of Chapter 2 of the VAT Law provides that the supply of goods is defined, inter alia, as a transfer of goods for consideration, whereas point 1 of the third subparagraph of Paragraph 1 of that chapter provides that the supply of services is defined as a service supplied, transferred or otherwise effected in favour of someone for consideration.

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

10Digital Charging Solutions has its place of business in Germany and does not have a fixed establishment in Sweden. It supplies users of electric vehicles in Sweden with access to a network of charging points. Via the network, the users receive real-time information on prices and availability of the charging points on the network. In addition, the network service includes functions for searching for and finding charging points and route planning.

11The charging points on the network are operated not by Digital Charging Solutions, but by operators with whom the company has entered into contracts in order to enable electric vehicle users to charge their vehicles. To that end, Digital Charging Solutions provides those users with a card and an IT application for authentication. When the card or the application is used, the charging session is registered with the operator of the network of charging points, which invoices Digital Charging Solutions for those sessions. Invoicing takes place on a monthly basis at the end of each calendar month and payment must be made within 30 days.

12On the basis of the invoices issued by the charging point operators, Digital Charging Solutions invoices the card or app users, separately and also on a monthly basis, first, for the quantity of electricity supplied and, second, for access to the network and adjacent services. The price of electricity varies but a fixed fee is levied for access to the network and to those services. That fee is charged regardless of whether or not the user actually purchased electricity during the relevant period. It is not possible only to purchase electricity from Digital Charging Solutions without at the same time paying for access to the network and for those transactions.

13On 14 April 2021, Digital Charging Solutions applied to the Skatterättsnämnden (Revenue Law Commission, Sweden) for a tax ruling. On 8 April 2022, that government agency issued a ruling stating that the supply made by Digital Charging Solutions constituted a complex transaction principally characterised by the delivery of electricity to users and that the place of delivery was to be regarded as being in Sweden.

14The Skatteverket (Tax Agency) brought an action before the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), the referring court, requesting confirmation of that tax ruling. Digital Charging Solutions also appealed to that court, requesting that the tax ruling be amended. Digital Charging Solutions argued before the referring court that, in the present case, there were two separate supplies, namely a supply of electricity and a supply of services (the facilitation of access to the network of charging points), so that the only part of the supply that should be taxed in Sweden is the part consisting of the supply of electricity.

15As is apparent from the request for a preliminary ruling, the majority of the members of the Skatterättsnämnden (Revenue Law Commission) takes the view that charging point operators supply electricity to Digital Charging Solutions, which in turn supplies it to the users. This is therefore a chain of operations in which those operators are not contractually bound to those users.

16A minority within that commission takes the contrasting view that Digital Charging Solutions provides users with a service consisting, in particular, of the provision of a network of charging points and subsequent invoicing, which implies that it grants them some form of credit for the purchase of electricity, as per what was held, in different circumstances, in the judgments of 6 February 2003, Auto Lease Holland (C‑185/01, EU:C:2003:73), and of 15 May 2019, Vega International Car Transport and Logistic (C‑235/18, EU:C:2019:412). That approach takes particular account of the fact that users are free to choose among conditions such as the quality, quantity, time of purchase and manner of use of the electricity.

17In order to rule on the dispute before it, the referring court is uncertain as to the scope that should be attached to the case-law following those judgments.

18In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Does a supply to the user of an electric vehicle consisting of the charging of the vehicle at a charging point constitute a supply of goods under [Article] 14(1) and [Article] 15(1) of [Directive 2006/112]?

If the answer to Question 1 is in the affirmative, is such a supply then to be deemed to be present at all stages of a chain of transactions which include an intermediary company, where the chain of transactions is accompanied by a contract at every stage, but only the user of the vehicle has the right to decide on matters such as quantity, time of purchase and charging location, as well as how the electricity is to be used?’

Consideration of the questions referred

The first question

19By the first question, the referring court asks, in essence, whether Article 14(1) of Directive 2006/112, read in conjunction with Article 15(1) thereof, must be interpreted as meaning that the supply of electricity for the purposes of charging an electric vehicle at a charging point forming part of a public network of such points constitutes a supply of goods within the meaning of the former provision.

20It should be noted that, as is apparent from the wording of the first question, it concerns the act consisting in charging an electric vehicle at a charging point, independently of the intervention of a company separate from the operator of the network of those points, in order to provide the user with access to that network, that intervention being the subject matter of the second question.

21Article 14(1) of Directive 2006/112 provides that a ‘supply of goods’ is to mean the transfer of the right to dispose of tangible property as owner. That concept covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if he or she were its owner (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 33 and the case-law cited).

22Thus, the transaction consisting of the supply of electricity to the batteries of an electric vehicle constitutes a supply of goods, in so far as that transaction enables the user of the charging point to consume, in order to propel his or her vehicle, the electricity transferred, which, under Article 15(1) of Directive 2006/112, is to be treated as tangible property (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 38).

23Consequently, the answer to the first question is that Article 14(1) of Directive 2006/112, read in conjunction with Article 15(1) of Directive 2006/112, must be interpreted as meaning that the supply of electricity for the purposes of charging an electric vehicle at a charging point forming part of a public network of such points constitutes a supply of goods within the meaning of the former provision.

The second question

24By the second question, the referring court asks, in essence, whether Article 14 of Directive 2006/112, read in conjunction with Article 15(1) thereof, must be interpreted as meaning that the charging of an electric vehicle at a network of public charging points to which the user has access through a subscription concluded with a company other than the operator of that network entails that the electricity consumed is deemed to have been supplied, first, by the operator of that network to the company offering access thereto and, second, by that company to that user, even if the latter chooses the quantity, time and place of that charging as well as the manner of use of the electricity.

25In stating that the users of electric vehicles choose the quantity, time and place of that charging as well as the manner of use of the electricity, the second question reflects that court’s queries as to the scope of the case-law referred to in paragraph 16 above, according to which, given those circumstances, Digital Charging Solutions could be viewed not as supplying a good to those users but as, in reality, performing the functions of a supplier of credit in respect of those users.

26It should be noted in that regard that the concept of ‘supply of goods’ does not refer to the transfer of ownership in accordance with the procedures prescribed by the applicable national law, but covers any transfer of tangible property by one party which empowers the other party actually to dispose of it as if that party were its owner (judgments of 18 July 2013, Evita-K, C‑78/12, EU:C:2013:486, paragraph 33, and of 21 November 2013, Dixons Retail, C‑494/12, EU:C:2013:758, paragraph 20).

27The transfer of the right to dispose of tangible property as owner within the meaning of Article 14(1) of Directive 2006/112 does not require the party to whom the tangible property is transferred to be in physical possession of it, or that the tangible property be physically transported to that party and/or physically received by that party (order of 15 July 2015, Koela-N, C‑159/14, EU:C:2015:513, paragraph 38).

28Thus, the same goods may be the subject of two successive sales within the meaning of Article 14(1) of Directive 2006/112 when they are transported directly, on instructions, from the first vendor to the second person acquiring the goods (see, to that effect, judgment of 10 July 2019, Kuršu zeme, C‑273/18, EU:C:2019:588, paragraph 36).

29Those assessments are also valid for electricity which, as observed in paragraph 22 above, is treated as tangible goods under Article 15(1) of Directive 2006/112.

30That being so, it should be recalled, in order to answer the second question, that taking into account the economic reality which is, in principle, reflected in the contractual agreements, constitutes a fundamental criterion for the application of the common VAT system (see, to that effect, judgments of 20 February 1997, DFDS, C‑260/95, EU:C:1997:77, paragraph 23, and of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 72 and the case-law cited).

31In that regard, it is apparent from the information provided by the referring court that the operators of the charging points have contractual connections only with Digital Charging Solutions and that, according to the appurtenant agreements, that company provides users who have chosen to do business with it with cards and an application for authentication giving access to that network, thereby enabling users to charge their electric vehicles at points which are part of that network. As stated in paragraphs 11 and 12 above, the operators that operate those charging points invoice Digital Charging Solutions monthly for the cost of the electricity supplied and the latter in turn invoices the users, also monthly, for that cost, to which is added payment for connected services, through a fee, the amount of which is not contingent on the quantity of electricity supplied (and therefore the cost of the electricity) or on the number of charging sessions.

32As observed, in essence, by the Advocate General in point 39 of her Opinion, the circumstances in the case in the main proceedings differ from those of the cases which gave rise to the judgments of 6 February 2003, Auto Lease Holland (C‑185/01, EU:C:2003:73), and of 15 May 2019, Vega International Car Transport and Logistic (C‑235/18, EU:C:2019:412).

33In that regard, as regards the first of those cases, the Court observes that the vehicle fuelling the transaction at issue in that case was part of a leasing contract and that, in that context, the Court took account of the fact that, unlike the invoicing methods at issue in the present case, the monthly payments made to the leasing company were merely an advance, with the actual consumption being established at year-end, and went on to find that the fuel management agreement was a financing contract, if only a partial one, for the purchase of fuel and that the leasing company was, in reality, acting as a supplier of credit vis-à-vis the lessee (see, to that effect, judgment of 6 February 2003, Auto Lease Holland, C‑185/01, EU:C:2003:73, paragraphs 35 and 36). As regards the second case, suffice it to note that nor are the circumstances at issue in the main proceedings in the present case analogous to those in which a parent company decides that its subsidiaries’ fuel purchases are to be effected using fuel cards provided by it to them, which cards may be used at service stations of the suppliers indicated by that parent company (judgment of 15 May 2019, Vega International Car Transport and Logistic, C‑235/18, EU:C:2019:412, paragraphs 14 and 36).

34The absence of a credit mechanism enabling electricity purchases to be pre-financed is corroborated by the methods for fixing the payment stipulated between the users of the charging points and Digital Charging Solutions. As observed in paragraph 31 above, nor does that company collect any payment consisting in a percentage of the amount of invoiced electricity consumption, but rather a fixed fee, independent of the quantity of electricity supplied to the user or the number of charging sessions.

35It follows that although, as was the situation in the cases which gave rise to the judgments referred to in paragraph 33 above, it is the user who decides when, where and how much electricity he or she purchases, the guidance provided by those judgments are not transposable to the context of the main proceedings.

36In the present case, as emphasised by the Advocate General in point 52 of her Opinion, the contractual stipulations between the charging point operators and Digital Charging Solutions, on the one hand, and between the latter and the users of those points, on the other, imply, according to the information provided by the referring court, that it is the users who initiate, at their discretion, the supply of electricity at the place, time and in the quantity of their choice. Digital Charging Solutions, for its part, does not undertake with the operators of the network comprising those points to purchase, autonomously and independently of the users’ decisions, any quantity whatsoever of electricity, but seems to play the role of an intermediary, as evidenced by the very wording of the second question.

37In those circumstances, it is appropriate to examine that configuration of contractual relationships in the light of Article 14(2)(c) of Directive 2006/112, which governs the transfer of goods pursuant to a contract under which commission is payable on purchase or sale and which constitutes, as against the general definition set out in Article 14(1) thereof, a lex specialis, the conditions for the application of which are independent of those in paragraph 1 (see, to that effect, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 55 and the case-law cited).

38The application of Article 14(2)(c) of Directive 2006/112 requires two conditions to be satisfied. First, there has to be an agency in performance of which the commission agent acts on behalf of the principal in the supply of goods and, second, the supplies of goods acquired by the commission agent and the supplies of goods sold or transferred to the principal must be identical (see, to that effect, judgment of 12 November 2020, ITH Comercial Timișoara, C‑734/19, EU:C:2020:919, paragraph 51).

39If those two conditions are satisfied, Article 14(2)(c) of Directive 2006/112 creates a legal fiction of two identical supplies of goods made consecutively, which fall within the scope of VAT. Under that fiction, a taxable person who, acting in his or her own name but on behalf of another person, takes part in a supply of services, is deemed to have received and supplied those services himself or herself (see, to that effect, judgment of 12 November 2020, ITH Comercial Timișoara, C‑734/19, EU:C:2020:919, paragraphs 49 and 50 and the case-law cited).

40In such a scenario, under Article 14(2)(c) of Directive 2006/112, the taxable person in question plays a certain economic role in the supply of goods in question, which enables that person to be categorised as an intermediary acting in his or her own name but on behalf of someone else (see, to that effect, judgment of 19 February 2009, Athesia Druck, C‑1/08, EU:C:2009:108, paragraphs 35 and 36).

41It should also be noted that it is on the nature of a commission contract for the purchase of electricity for the purpose of charging an electric vehicle that the choice of quality, quantity, time and manner of use of the electricity is up to the user of the charging point and not the commission agent.

42In the present case, the possibility cannot be ruled out that the connections at issue in the present case may be analysed as commission contracts for purchase concluded between the operators of charging point networks, as principals, and Digital Charging Solutions, as the commission agent, under which those operators confer on the latter an agency to sell electricity, in its own name but on their behalf, to electric vehicle users. In any event, subject to factual verifications which it is for the referring court to carry out, the connections at issue in the main proceedings may also be categorised as commission contracts for purchase concluded between the users of charging points as principals, and Digital Charging Solutions, as the commission agent, under which those users confer on the latter an agency to purchase from the charging point operators, in its own name but on their behalf, electricity intended to be supplied to them for charging requirements for their electric vehicles.

43It follows that the first condition of application of Article 14(2)(c) of Directive 2006/112 seems to be satisfied.

44The second condition of application of that provision also appears to be satisfied, since the supplies of goods deemed to be acquired by the commission agent and the supplies of goods sold or transferred by the commission agent are identical.

45In that regard, since the dispute in the main proceedings also concerns the question whether the supply by Digital Charging Solutions constitutes a complex transaction principally characterised by the delivery of electricity or whether that supply is composed of two distinct supplies, consisting in a supply of electricity and a supply of access to the charging points network, it is appropriate to identify the decisive factors for the purposes of such a categorisation and to set out to what extent that categorisation is liable to lead to potential consequences for the second condition of application of that provision.

46It should be noted that, where a transaction comprises a bundle of elements and acts, regard must be had to all the circumstances in which that transaction takes place in order to determine, first, whether the transaction gives rise, for the purposes of VAT, to two or more distinct supplies or to one single supply and, second, whether, in the latter case, that single supply is to be regarded as a ‘supply of goods’ or a ‘supply of services’ (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 27 and the case-law cited).

47In particular, while it follows from the second subparagraph of Article 1(2) of Directive 2006/112 that each transaction must normally be regarded as distinct and independent, a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. In that regard, it must be held that there is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 28 and the case-law cited).

48Moreover, in certain circumstances, several formally distinct supplies, which could be provided separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent. That is the case where, inter alia, one or more elements are to be regarded as constituting the principal supply, while other elements are to be regarded, by contrast, as one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal supply (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraphs 29 and 30 and the case-law cited).

49In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether, in the circumstances of the particular case, the supply concerned constitutes a single supply and to make all definitive findings of fact in that regard (judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 31 and the case-law cited). However, it is for the Court to provide the national courts with all the guidance as to the interpretation of European Union law which may be of assistance in adjudicating on the case pending before them (judgment of 18 April 2024, Companhia União de Crédito Popular, C‑89/23, EU:C:2024:333, paragraph 38 and the case-law cited).

50In the present case, as observed in paragraph 12 above, Digital Charging Solutions invoices users monthly, first, for the cost of electricity purchased by them to charge their vehicles and, second, a fixed fee by way of payment for access to the charging points network, information on electricity prices and on availability of charging points, as well as functions for locating charging points and route planning.

51In that regard, as observed in paragraph 30 above, taking into account the economic reality as, in principle, reflected in the contractual agreements constitutes a fundamental criterion for the application of the common VAT system.

52Consequently, the question whether the supply of electricity by a company such as Digital Charging Solutions for the purpose of charging an electric vehicle forms, together with the other supplies described in paragraph 50 above, a single complex transaction may be contingent on the conditions in which the payment for that supply and those services falls due under the appurtenant contractual agreements.

53Thus, services providing access to charging points, technical support, reservation of a charging point, consultation of charging or credit accumulation history in a digital portfolio which are not provided in return for payment of a fee that is fixed and independent of any supply of electricity may be considered as forming, together with that supply, a single complex transaction for the purposes of VAT (see, to that effect, judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej, C‑282/22, EU:C:2023:312, paragraph 32).

54However, as observed by the Advocate General in points 24 to 29 of her Opinion, where payment for those other supplies must be paid by the user in the form of a fixed fee which is separate and payable on a monthly basis, irrespective of any supply of electricity, it must be held, subject to verifications which it is for the referring court to carry out, that those services are distinct and independent of the supply of electricity properly speaking.

55In such circumstances, considering that the services in question are indissociable from the supply of electricity or merely accessory thereto, so as to form, together with that supply, a single complex transaction, would amount to artificially disregarding the economic reality in two respects. This concerns, first, the monthly periods during which the user is not supplied electricity whilst still being required to pay, in accordance with the contractual stipulations binding him or her to Digital Charging Solutions, the fixed fee relating to those services. It concerns, second, the fact that, according to those stipulations, that fee, which is invoiced as a separate item, does not vary according to the quantity of electricity supplied to the user or according to the number of charging sessions coming within the monthly period.

56Moreover, in so far as the user may charge his or her vehicle at charging points located in a number of Member States and, therefore, the place of supply of electricity is liable to vary with the different purchases made, considering those services as constituting an accessory element of a single complex transaction the principle supply of which consists in the supply of electricity then seems even more artificial in terms of economic realities.

57In those circumstances, as observed by the Advocate General in point 68 of her Opinion, the supply of electricity properly speaking made by Digital Charging Solutions to the user is no different from the supply of electricity by the charging point operator to that company, with the result that the second condition of Article 14(2)(c) of Directive 2006/112 is satisfied.

58However, it cannot be inferred therefrom that that second condition is not satisfied if the referring court were to take the view that the supply made by Digital Charging Solutions constitutes a single complex transaction principally characterised by the supply of electricity.

59As observed in paragraphs 47 and 48 above, such a categorisation results from the fact that the other services provided by that company are considered to be indissociable from the supply of electricity or merely accessory thereto. Consequently, those services, which justify the intermediary’s payment, are merely intended to enable the electricity which was the object of the supply of goods deemed made by the operator of that charging point to that intermediary to be supplied to the user of a charging point.

60In the light of the foregoing, the answer to the second question is that Article 14 of Directive 2006/112, read in conjunction with Article 15(1) thereof, must be interpreted as meaning that the charging of an electric vehicle at a network of public charging stations to which the user has access through a subscription concluded with a company other than the operator of that network entails that the electricity consumed is deemed to have been supplied, first, by the operator of that network to the company offering access thereto and, second, by that company to that user, even if the latter chooses the quantity, time and place of that charging as well as the manner of use of the electricity, when that company acts in its own name but on behalf of the user under a commission contract within the meaning of Article 14(2)(c) of that directive.

Costs

61Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules:

Article 14(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, read in conjunction with Article 15(1) of Directive 2006/112, as amended,

must be interpreted as meaning that the supply of electricity for the purposes of charging an electric vehicle at a charging point forming part of a public network of such points constitutes a supply of goods within the meaning of the former provision.

Article 14 of Directive 2006/112, as amended by Directive 2009/162, read in conjunction with Article 15(1) of Directive 2006/112, as amended,

must be interpreted as meaning that the charging of an electric vehicle at a network of public charging points to which the user has access through a subscription concluded with a company other than the operator of that network entails that the electricity consumed is deemed to have been supplied, first, by the operator of that network to the company offering access thereto and, second, by that company to that user, even if the latter chooses the quantity, time and place of that charging as well as the manner of use of the electricity, when that company acts in its own name but on behalf of the user under a commission contract within the meaning of Article 14(2)(c) of Directive 2006/112, as amended.

Signatures

[Signatures]

( *1 ) Language of the case: Swedish.

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 25 April 2024 ¹

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Articles 14, 15 and 24 – Recharging points for electric vehicles – Provision of devices for recharging electric vehicles, supply of the necessary electricity, and provision of technical support and IT services – Classification as a ‘supply of goods’ or a ‘supply of services’ – Article 14(1), Article 14(2)(c) and Article 28 – Nature and role of the device provider in that supply)

I. Introduction

1There is a steady increase in the number of registered electric vehicles (EV) in the European Union. ² That is in line with the European Green Deal aimed at making the European Union a climate-neutral continent by the year 2050. The use of EVs inherently requires an accompanying infrastructure, such as charging points.

2In parallel with the changes in the real world, it is necessary to adopt or (re)interpret the laws that already exist in order to govern the new relationships that emerge with such change. The present case addresses that topic, as the national court seeks the interpretation of the VAT Directive ³ when applied to the transactions that arise out of the use of the EV charging devices (such as a card or an application).

3The present reference has arisen from a dispute before the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) between Digital Charging Solutions GmbH (‘DCS’), a company incorporated under German law, and the Skatteverket (Swedish Tax Agency, Sweden) concerning the validity of the latter’s tax ruling dated 8 April 2022 (‘the tax ruling’).

II. The background to the dispute in the main proceedings, the questions referred and the procedure before the Court

4DCS has its place of business in Germany with no fixed establishment in Sweden. That company supplies EV users in Sweden with access to a network of charging points. Via that network, users receive real-time information on prices, location and availability of charging points, in addition, to functions for locating charging points and route planning.

5The charging points on the network are not operated by DCS but by charge-point operators (CPOs) with which DCS has entered into contracts. DCS provides EV users with a card and an application for authentication to enable them to charge their vehicles at the charging points (‘card/app users’). When the card or application is used, the charging session is registered with a CPO, which then invoices DCS for that session. Invoicing takes place on a monthly basis at the end of each calendar month and payment must be made within 30 days.

6On the basis of the invoices received from the CPOs, DCS bills the card/app users, first for the quantity of electricity supplied on a monthly basis, and second for access to the network and adjacent services. The price for the electricity supplied varies depending on the quantity charged, but a fixed fee is levied for access and the service provided, which is charged regardless of whether the user actually purchased electricity during the relevant period or not. It is not possible only to purchase electricity from the company without at the same time paying for access to the network.

7On 14 April 2021, DCS applied to the Skatterättsnämnden (Revenue Law Commission, Sweden) for a tax ruling. On 8 April 2022, that government agency issued a ruling stating that the supply made by DCS constituted a complex transaction principally characterised by the delivery of electricity to users and that the place of delivery was to be regarded as being in Sweden.

8The Skatteverket (Swedish Tax Agency) brought an action before the Högsta förvaltningsdomstolen (Supreme Administrative Court), the referring court, requesting confirmation of that tax ruling. DCS also appealed to that court, requesting that the tax ruling be amended. That company argued before the national court that there were two separate supplies, namely a supply of electricity and a supply of services (the facilitation of access to the network of charging points), so that the only part of the supply that should be taxed in Sweden is the part consisting of the supply of electricity.

9As is apparent from the request for a preliminary ruling, the Skatterättsnämnden (Revenue Law Commission) is divided. On the one hand, the majority takes the view that CPOs supply electricity to DCS, which in turn supplies it to the users. This is therefore a chain of operations in which CPOs are not contractually bound to those users.

10On the other hand, a minority within the Skatterättsnämnden (Revenue Law Commission) takes the view that DCS provides users with a service consisting, in particular, of the provision of a network of charging points and subsequent invoicing, which implies that it grants them some form of credit for the purchase of electricity. ⁴ This approach takes particular account of the fact that users are free to choose among conditions such as the quality, quantity, time of purchase and manner of use of the electricity.

11In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

Does a supply to the user of an [EV] consisting of the charging of the vehicle at a charging point constitute a supply of goods under [Article] 14(1) and [Article] 15(1) of the VAT Directive?

If the answer to Question 1 is in the affirmative, is such a supply then to be deemed to be present at all stages of a chain of transactions which include an intermediary company, where the chain of transactions is accompanied by a contract at every stage, but only the user of the vehicle has the right to decide on matters such as quantity, time of purchase and charging location, as well as how the electricity is to be used?’

12Written observations were submitted to the Court by DCS, the Skatteverket (Swedish Tax Agency), the Hungarian Government and the European Commission.

13A hearing was held on 7 February 2024 at which the Swedish Government and the Commission presented oral argument.

III. Legal framework

14Article 14(1) of the VAT Directive states that ‘“supply of goods” shall mean the transfer of the right to dispose of tangible property as owner’.

15Article 14(2) of that directive reads:

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

…

the transfer of goods pursuant to a contract under which commission is payable on purchase or sale.’

16Article 28, which deals with the provisions of services, provides:

‘Where a taxable person acting in his own name but on behalf of another person takes part in a supply of services, he shall be deemed to have received and supplied those services himself.’

17The Court considered that the reasoning applied to the interpretation of Article 28 of the VAT Directive applies also to the supply of goods based on a contract under which commission is payable on purchase, in accordance with Article 14(2)(c) of the VAT Directive. ⁵

IV. Analysis

18Article 15 of the VAT Directive provides that, for the purpose of VAT, electricity is a good.

19The Court considers that a complex transaction consisting of the supply of electricity to the battery of a vehicle and access to charging devices and necessary technical and IT support constitutes a supply of goods within the meaning of Article 14(1) and Article 15(1) of the VAT Directive. ⁶

20That seems to settle the first question of the referring court. Therefore, at the request of the Court, the present Opinion is limited to the analysis of the second question.

21By the second question, the referring court essentially wishes to find out how the VAT Directive applies to each stage of the transaction involved in charging an EV through the use of a card or app.

22To answer that question, it is important to stress at the outset that the fundamental criteria for the application of the common system of VAT are economic and commercial realities. The Court has repeated this on multiple occasions. ⁷

23It is therefore necessary to begin the analysis by asking how the transaction(s) at issue in the present case take(s) place.

24It is my understanding that DCS performs two different supplies: a supply of services and a supply of goods.

25The supply of services consists in providing an EV driver with a card or an app which provides information about, and allows access to, the network of charging points. For that supply of services, DSC issues a (monthly) invoice with a fixed fee, regardless of whether electricity is bought or not. On the basis of Article 43 of the VAT Directive, the place of ‘supply’ of that service is in Germany, because that is where the service provider is established.

26The supply of goods, namely electricity, is a separable supply from that of services. For the former, an invoice is issued at the end of each month, depending on the quantity of electricity used.

27If separate invoices do not necessarily exclude a single complex supply and thus a single transaction, ⁸ when two supplies do not appear to be so closely linked that they would constitute an indivisible economic supply, it would be artificial not to keep them separate. Consequently, they must, in principle, be considered to be distinct and independent transactions for VAT purposes. ⁹

28To consider supplies in the main proceedings as one complex supply rather than two separate supplies would, in my view, disregard the relevant contractual arrangements and thus neglect economic and commercial realities. ¹⁰

29Acknowledging that access to the network is autonomous from the supply of electricity would, in my view, be the most realistic legal representation for the purpose of the VAT treatment of the legal relationships involved. Therefore, DCS’s argument before the referring court (see point 8 of the present Opinion) seems to be correct.

30Both the Commission and the Swedish Government agreed at the hearing that the supply of services consisting of access to the network, invoiced separately, is not of interest for the present case. Therefore, the focus here is on the legal qualification of the transactions in the second supply, the supply of electricity.

31The transactions involved in the supply of electricity concern the relationship between the CPO and DCS and the relationship between DCS and the card/app user. No direct relationship between the CPO and the card/app user exists; nor is that disputed in the present case.

32There are three possible ways the relationships involved could be characterised for VAT purposes.

33The first follows from the Auto Lease Holland line of case-law. ¹¹ This line of case-law treats the transaction between DCS and the card/app user as a supply of services granting credit (thus exempted from VAT by Article 135(1)(b) of the VAT Directive). I do not find such an approach appropriate for the treatment of the present transactions. Nevertheless, as that approach is proposed by a minority within the Skatterättsnämnden (Revenue Law Commission), I will analyse that option first (A).

34The second option is the treatment of the two transactions as successive sales, both submitted under Article 14(1) of the VAT Directive; this is the so-called buy-sell model. That is the position of the majority within the Skatterättsnämnden (Revenue Law Commission), as well as all the participants in the present procedure. I will analyse that option under (B).

35The third possibility is to understand the transactions involved as being based on a commission model under Article 14(2)(c) of the VAT Directive. That option, despite not being raised by either the reference for a preliminary ruling or the participants in the written part of the procedure, was discussed at the hearing. Said option is, to my mind, the most appropriate characterisation of the transactions involved in the present case. I will deal with the application of Article 14(2)(c) of the VAT Directive under (C).

A. The Auto Lease Holland line of case-law

36The judgments in Auto Lease Holland and Vega International concerned the VAT treatment of transactions involved in the use of fuel cards. The circumstances of those two cases are not identical, but they bear some common features. They both involved multiple actors beyond the card user, the card supplier and the energy supplier, and both concerned successive sales through a financial transaction. In those judgments, the Court placed its emphasis less on the supply of goods (fuel) than on the modalities of payment of that supply. ¹²

37The result in Vega International, which is only the logical consequence of Auto Lease Holland, was the finding that the transaction between the card issuer and the card user amounted to a credit-granting service.

38However, as illustrated by scholarly writings ¹³ and discussions within the framework of the VAT Committee, ¹⁴ those cases raised different concerns. Many critics reproached the fact that the proposed interpretation led to the invisibility of the intermediary.

39To my mind, it is doubtful that the concrete circumstances of those cases are comparable to the circumstances of the present case. More generally, the business model of EV charging is not the same as the one of fuel charging, at least not at the moment. While it is possible to charge a non-electric vehicle using the fuel card or any other card or cash and to do so at any fuel station, that is not the case for EV charging. EVs use different charging systems and can only be charged at the charging points included in the network at issue. Charging cannot be carried out without the use of a card/app which allows access to the network. Finally, it is common ground that EV cards/apps are not payment instruments.

40Furthermore, if the transaction between the card issuer and the card/app user is a different, non-taxable transaction (grant of a credit), the user will not be able to deduct VAT if it is a taxable person, as the invoice for electricity is only issued by the CPO to the card issuer.

41Therefore, the findings of the Auto Lease Holland line of case-law are not automatically transposable to different business models and operations of EV charging devices, and should not therefore be used outside of the circumstances in which those rulings were issued. ¹⁵

B. The buy-sell model (Article 14(1) of the VAT Directive)

42The buy-sell model sees the transactions at issue as successive sales with a single horizontal chain of deliveries. DCS buys electricity from the CPO and then sells it to the card/app user.

43For VAT purposes, that model relies on Article 14(1) of the VAT Directive. Each transaction is a separate supply of goods, which, according to that provision, means the transfer of the right to dispose of the tangible property as owner.

44As explained by the Court, the transfer of ownership covers any transfer of tangible property by one party that empowers the other party actually to dispose of it as if he or she were its owner. ¹⁶

45This might be seen as requiring that some form of control over the goods needs to be transferred in order for a transaction to qualify as a supply of goods. ¹⁷ This is particularly difficult when the good supplied is energy, such as in the main proceedings, which cannot be transferred or stored easily. ¹⁸

46Indeed, in comparison to other goods (as illustrated by Article 15(1) and Articles 38 and 39 of the VAT Directive), electricity is of a specific nature, one of the characteristics being that it is much more difficult than any other goods to trace its physical flow. ¹⁹

47If applied to the circumstances of the present case, it would be necessary to transfer the ownership of electricity from the CPO to DCS in order for the latter to be able to then sell it to the card/app user. That is, of course, not the circumstances of the present case. Rather, the goods are transferred directly from the CPO to the card/app user. Thus, neither the actual possession of electricity, nor the legal title over it, are formally transferred from the CPO to DCS.

48Nevertheless, the law allows for a fictional legal transfer of ownership to happen without an actual transfer.

49Indeed, according to the case-law, there can be lawful reasons as to why goods have not been received directly from the issuer of the invoice such as, inter alia, the existence of two successive sales of the same goods which, on instructions, are transported directly from the first vendor to the second person acquiring the goods, with the result that there are two successive supplies within the meaning of Article 14(1) of the VAT Directive, but a single actual transport. In addition, it is not necessary for the first person acquiring the goods in question to have become the owner of those goods at the time of that transport, given that the existence of a supply within the meaning of that provision does not presuppose the transfer of the legal ownership of the goods. ²⁰

50Therefore, the circumstances in the main proceedings may be construed as falling under the buy-sell model, which implies successive sales. It requires recourse to the fiction that the right to dispose of electricity as owner was transferred from the CPO to DCS, which enables the latter to then sell the goods at issue.

51For VAT purposes, both transactions are taxable transactions. As the invoice for electricity is issued from the card issuer to the card/app user, the latter may deduct VAT if it is a taxable person.

52Nevertheless, in the circumstances of the present case, DCS neither promises to the CPO nor decides to buy an amount of electricity. It is actually the card/app user’s action that initiates the buying process when he or she decides which charging point the electricity is ordered from and what quantity of electricity is to be transferred, and it is in that user’s vehicle where the supply occurs.

53Thus, except for the risk of not being paid by the card/app user, DCS does not take any entrepreneurial risk in that supply of electricity because it is all already sold and delivered when it invoices the user.

54It is therefore worth exploring whether the other option, that is, of subsuming the transactions at issue under Article 14(2)(c) of the VAT Directive, does not fit better the economic reality of EV charging.

C. Commissionaire model (Article 14(2)(c) of the VAT Directive)

55The commissionaire model would describe the transaction at issue in the present case as involving an agent as an intermediary between the CPO and the card/app user.

56There can be two types of commissionaire model: the sales commissionaire model and the purchase commissionaire model. ²¹

57In the sales commissionaire model, the principal is the CPO, whilst the agent is the device issuer (such as DCS). In that model, the device issuer sells electricity in its own name but on behalf of the CPO to the card/app user.

58In the purchase commissionaire model, the principal is the card/app user and the agent is DCS. In that model, the device issuer (DCS) buys electricity from the CPO in its own name but on behalf of the card/app user. That model best describes the situation in the present case, as the buying of electricity happens, as I have already stated (see point 52 of the present Opinion), on the initiative of the card/app user.

59Legally speaking, both commissionaire models build on Article 14(2)(c) and Article 28 of the VAT Directive. ²² Article 28 provides that in a situation where a person acts as an agent, that is, in his or her own name but on behalf of somebody else, that person shall be deemed to have received and supplied the service at issue himself or herself. Even if Article 28 of the VAT Directive only deals with the supply of services, the Court has held that the same may be applied also to the supply of goods. ²³

60The Court has further considered that Article 14(2)(c) of that directive creates the legal fiction of two identical supplies of goods made consecutively, which fall within the scope of VAT. ²⁴

61Therefore, to fall within the commissionaire model, the transactions involved must fulfil two requirements. First, there has to be an agency in performance of which the commission agent acts on behalf of the principal in the supply of goods and/or services and, second, the supplies of goods and/or services acquired by the commission agent and the supplies of goods and/or services sold or transferred to the principal must be identical. ²⁵

62At the hearing, the Swedish Government and the Commission agreed that both those conditions were met in the circumstances involved in the main proceedings.

63I agree.

64Regarding the first condition of agency, the situation at issue can more accurately be described as a transfer of goods based on the agency contract, in which a card/app user is a principal and DCS is the agent, rather than as a succession of bilateral agreements. Even the wording of the question referred to the Court acknowledges that DCS appears as an intermediary.

65It is true that there is no explicit request from the card/app user to DCS to purchase electricity on its behalf at the occasion of each charging. However, the Court has already ruled that the buyer does not explicitly have to give a mandate to the commissionaire. ²⁶ Alternatively, the presentation of the card/app at the charging point may be understood as a mandate to the agent to buy a specific amount of electricity.

66Concerning the second condition, it has been argued that the supply of electricity by the CPO to the card device is not identical to the supply of electricity by the device issuer to the user because, in the latter case, there are elements additional to the supply of electricity. ²⁷

67That might be true in some circumstances. ²⁸

68However, in the present case, the supply of the services related to the use of the card/app is separate from the supply of electricity (see point 29 of the present Opinion). The remaining supply of electricity does not differ between the transaction between the CPO and DCS and the transaction between DCS and the card/app user.

69Therefore, it appears that both conditions – the presence of agency and the identity of supplies – are fulfilled in the circumstances of the present case and, consequently, the transactions at issue fit the model of the purchase commissionaire.

70Finally, the application of the commissionaire model to a situation such as the one in the present case would allow the card/app user that is a taxable person to deduct VAT, given that it receives the invoice with VAT from DCS.

D. Commissionaire model as the more suitable option in the circumstances of the present case

71It follows from the foregoing that the transactions involved in the business model at issue in the present case can be described by both Article 14(1) and Article 14(2)(c) of the VAT Directive. Both the buy-sell model and the commissionaire model are capable of describing such successive transactions and chain deliveries.

72The question is, which provision should be applied?

73In my view, for the business model such as the one in the present case, the commissionaire model as described in Article 14(2)(c) of the VAT Directive is the most suitable VAT treatment.

74As far as the relationship between Article 14(1) of the VAT Directive and Article 14(2)(c) thereof is concerned, it may be observed that the definition of the transaction that is the subject of Article 14(2)(c) does not make any reference to the ‘right to dispose of tangible property as owner’, as referred to in Article 14(1). Thus, the Court considered that, while grouping them under the same concept of a ‘supply of goods’, the EU legislature intended to distinguish the transaction referred to in Article 14(2)(c) of the VAT Directive from that referred to in Article 14(1) thereof, as those two transactions are not defined in the same terms. ²⁹ Hence, though they both deal with the concept of ‘supply of goods’, Article 14(2)(c) of the VAT Directive is autonomous from Article 14(1) thereof. ³⁰

75It is apparent from the wording and scheme of Article 14 of the VAT Directive – and confirmed by the case-law – that paragraph 2 of that provision constitutes, in relation to the general definition set out in paragraph 1 thereof, a lex specialis, the conditions for the application of which are independent of those of paragraph 1. ³¹

76When a transaction can fall both within the scope of the general rule and within the scope of lex specialis, it should be subject to the latter, otherwise there is no reason for having the specific rule.

77Furthermore, describing the relationship at issue by referring to Article 14(2)(c) of the VAT Directive would be less of a ‘fiction’ than relying on Article 14(1) of that directive. Relying on the latter provision requires the assumption that the electricity is successively supplied, but only transported once, and yet each of the involved parties had the possibility to dispose of it as the owner. The commissionaire model, under Article 14(2)(c) of the VAT Directive in conjunction with Article 28 thereof, provides that it is to be deemed that the intermediary received and supplied the electricity himself or herself (see point 59 of the present Opinion). It would thus only be necessary additionally to assume that the card/app user gave the mandate to DCS to buy electricity on his or her behalf, but in his or her own name, every time he or she uses the card/app (see point 65 of the present Opinion).

78To ground the reasoning in Article 14(2)(c) of the VAT Directive would avoid any difficulties with regard to disposing of the tangible property as owner. ³²

79In addition, to base the reasoning on that same provision would better reflect the true nature of economic and commercial transactions involving charging EV devices, such as those in the main proceedings.

80It is true that the VAT Committee issued guidelines on EV charging devices, suggesting the application of Article 14(1) of the VAT Directive. ³³ However, those guidelines are not as straightforward or as exhaustive as one may think or expect.

81First, those guidelines cover, for the most part, the relationship between the CPO and the device issuer ³⁴ and do not necessarily cover all business models of EV charging.

82In a model in which there are, as in the present case, two separate supplies and therefore two separate transactions – that is, one supply of service, which is charged with a fixed fee, irrespective of whether electricity is bought or not, and one supply of goods, namely electricity, which is invoiced at the end of each month – it is also possible to apply Article 14(2)(c) of the VAT Directive.

83It is, in my view, indicative that DCS does not act as a real supplier of electricity because it does not take any entrepreneurial risk in that supply. Conversely, that company plays an economic role in the supply of goods in the main proceedings and can therefore be regarded as an intermediary. ³⁵

84It thus appears to me to be more accurate in terms of the economic and commercial realities that if there are different sales of the same goods so that the given goods which, on instruction, are transported directly from the first vendor to the person acquiring the goods, with the result that there are two successive supplies, the one in the middle acts only as an intermediary.

85Last but not least, if Article 14(2)(c) of the VAT Directive is chosen to govern the transaction of the kind in the present case, the right to deduction ³⁶ would be transparently secured to the card/app user. Consequently, the proposed solution would be consistent with the principal of fiscal neutrality. ³⁷

86I therefore consider the option based on Article 14(2)(c) of the VAT Directive to be the best-suited solution for the circumstances such as those in the main proceedings.

87Only if the two conditions of Article 14(2)(c) of the VAT Directive (agency and identity of supplies) were not met would Article 14(1) of that directive be applicable in the main proceedings. Whether the conditions are met is for the national court to verify.

88If Article 14(1) of the VAT Directive is applied, as suggested by the VAT Committee’s guidelines on EV charging devices (see point 80 of the present Opinion), then DCS would qualify, within the meaning of Article 38(2) of that directive, as a ‘taxable dealer’ and the supply of electricity by the CPO to DCS would be deemed to take place where the taxable dealer (DCS) has established its business in accordance with Article 38(1) of that directive. In the circumstances of the present case, that would be in Germany.

89In any event, following Article 39 of the VAT Directive, the supply of electricity by DCS to a card/app user who charges his or her EV must be deemed to be made at the place where the driver actually uses and consumes the electricity, that is, at the place where the charging point is located. In the present case, that would be in Sweden.

90On the basis of the foregoing, I am of the view that the VAT Directive must be interpreted as meaning that the recharging of an EV at a network of charging points to which a user has access by means of a subscription concluded with a company other than the CPO implies that the electricity consumed is delivered from that operator to that user, and the company offering access to those charging points acts, in that supply, as a commissionaire within the meaning of Article 14(2)(c) of that directive.

91Alternatively, if the two conditions of Article 14(2)(c) of the VAT Directive are not met, it should be considered that the supply of electricity to the user is deemed to be made by the company which provides access to a network of charging points to users within the meaning of Article 14(1) of that directive.

V. Conclusion

Conclusion

92In the light of the above, I propose that the Court of Justice answer the questions referred by the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) as follows:

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that the recharging of an electric vehicle at a network of charging points to which a user has access by means of a subscription concluded with a company other than the charging-point operator implies that the electricity consumed is delivered from that operator to that user, and the company offering access to those charging points acts, in that supply, as a commissionaire within the meaning of Article 14(2)(c) of that directive.

Alternatively, if the two conditions of Article 14(2)(c) of Directive 2006/112 are not met, it should be considered that the supply of electricity to the user is deemed to be made by the company which provides access to a network of charging points to users within the meaning of Article 14(1) of that directive.

¹ Original language: English.

² See, for instance, European Environment Agency, ‘New registrations of electric vehicles in Europe’, 24 October 2023; available at https://www.eea.europa.eu/en/analysis/indicators/new-registrations-of-electric-vehicles.

³ Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2009/162/EU of 22 December 2009 (OJ 2010 L 10, p. 14) (‘the VAT Directive’).

⁴ See judgments of 6 February 2003, Auto Lease Holland (C‑185/01, EU:C:2003:73; ‘Auto Lease Holland’); of 3 September 2015, Fast Bunkering Klaipėda (C‑526/13, EU:C:2015:536; ‘Fast Bunkering Klaipėda’); and of 15 May 2019, Vega International Car Transport and Logistic (C‑235/18, EU:C:2019:412; ‘Vega International’).

⁵ Judgment of 12 November 2020, ITH Comercial Timişoara (C‑734/19, EU:C:2020:919, paragraph 50).

⁶ Judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej (C‑282/22, EU:C:2023:312).

⁷ Judgments of 20 February 1997, DFDS (C‑260/95, EU:C:1997:77, paragraph 23); of 12 November 2020, ITH Comercial Timişoara (C‑734/19, EU:C:2020:919, paragraph 48); and of 4 May 2023, Balgarska telekomunikatsionna kompania (C‑127/22, EU:C:2023:381, paragraph 45 and the case-law cited).

⁸ See, to that effect, judgment of 26 May 2016, Bookit (C‑607/14, EU:C:2016:355, paragraph 26).

⁹ See, to that effect, judgment of 16 July 2015, Mapfre asistencia and Mapfre warranty (C‑584/13, EU:C:2015:488, paragraph 57).

¹⁰ The Court considered that the relevant contractual terms reflect, in principle, the economic and commercial reality of transactions and therefore constitute a factor to be taken into consideration when trying to identify the nature of a transaction. See judgment of 28 February 2023, Fenix International (C‑695/20, EU:C:2023:127, paragraph 72 and the case-law cited).

¹¹ This includes Auto Lease Holland and Vega International. If I will refer at times to Fast Bunkering Klaipėda, as most of the commentators do, the peculiarities of that case, which dealt with the issue of whether fuel supplies for vessels engaged in international transport were subject to VAT exemptions, make me consider that this case is not comparable to the two others (for a similar view, see Ek, M., ‘The concept of transfer of goods pursuant to a commission contract in EU VAT’, Skattenytt, 2022, pp. 3 to 26, at p. 19).

¹² See Auto Lease Holland (paragraphs 34 to 36) and Vega International (paragraphs 39 to 41).

¹³ Kirsch, S. and Orban, C., ‘CJEU confirms that the provision and settlement of fuel cards may constitute a financial service that is exempt from VAT in Vega International case’, Intertax, 2019, pp. 898 to 900 (referring to ‘sub-optimal consequences). There are even some more verbal critiques (Reiß, W., UR 2003, pp. 428 to 441, at p. 437, and Wäger, UStG, 2. Auflage, 2022, § 3, UStG) referring to the Auto Lease Holland line of case-law as ‘Stone age tax law’; Gómez, D. and Echevarría Zubeldia, G., ‘The VAT conundrum of fuel cards: Thoughts on the ECJ judgment in Vega International’, Intl. VAT Monitor, 2019, p. 6; Gamito, P., ‘A look back at EU VAT developments in 2019 regarding insurance and financial services: Part 1’, Intl. VAT Monitor, 2020, pp. 222 to 234; Nellen, F., van Doesum, A., Corniejle, S. and van Kesteren, H., Fundamentals of EU VAT law, 2nd edition, 2020, p. 131; Ek, M., footnote 11, op. cit.; VAT Expert Group, Issues arising from recent judgments of the Court of Justice of the EU Case C‑235/18 Vega International: Fuel cards, 29 March 2022, available at https://circabc.europa.eu/ui/group/cb1eaff7-eedd-413d-ab88-94f761f9773b/library/dbc22ed9-fcdb-485b-bc90-e9a16a6c4a9f/details. [For any purpose, it may be worth outlining that the VAT Expert Group (VEG), institutionalised by Commission Decision of 26 June 2012 setting up a group of experts on value added tax (JO 2012, C 188, p. 2-3), is separate from the VAT Committee.]; VAT Committee, ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1067, July 2023, p. 3; Merkx, M., ‘VAT and business models for charging electric vehicles’, International VAT Monitor, 2021, pp. 275 to 284, at p. 281.

¹⁴ VAT Committee, ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1008, March 2021, p. 11; ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1020, October 2021; ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1046, October 2022; ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1064 FINAL, March 2023; and ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1067, July 2023.

¹⁵ Gómez, D. and Echevarría Zubeldia, G., footnote 13, op. cit.

¹⁶ See, to that effect, judgments of 8 February 1990, Shipping and Forwarding Enterprise Safe (C‑320/88, EU:C:1990:61, paragraph 7), and of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraph 35 and the case-law cited).

¹⁷ Ek, M., footnote 11, op. cit., p. 8.

¹⁸ In relation to the supply of fuel, Advocate General Sharpston held in her Opinion in Fast Bunkering Klaipėda (C‑526/13, EU:C:2015:156, point 42): ‘Once fuel has been delivered into the tanks of a vessel used for navigation on the high seas, it is extremely difficult to conceive of its being “disposed of” other than by consumption by the vessel concerned (and thus by its operator) in order to meet its energy requirements. Any alternative actual disposal by a legal owner of the fuel, other than the operator of the vessel, would seem to require physical intervention of an impractical kind. … There is in practice no likelihood that the fuel will not be consumed for the vessel’s needs, and it seems implausible that the intermediary, for the time that he may be legal owner, will wish to assume responsibilities of ownership (in the form of, for example, storage and insurance costs) in order to be able to dispose of it otherwise.’ See, also, the judgment in Fast Bunkering Klaipėda (paragraph 52).

¹⁹ Merkx, M., footnote 13, op. cit., p. 280.

²⁰ See, to that effect, judgment of 10 July 2019, Kuršu zeme (C‑273/18, EU:C:2019:588, paragraph 36 and the case-law cited).

²¹ Gómez, D. and Echevarría Zubeldia, G., footnote 13, op. cit.; Ek, M., footnote 11, op. cit., p. 6; VAT Committee, ‘Case law: Issues arising from recent judgments of the Court of Justice of the European Union’, Working Paper No 1046, October 2022, p. 7.

²² There are also sometimes discussions in relation to the differences between disclosed and undisclosed commissionaires, as some Member States treat one or the other differently in terms of contract law (Nellen, F., van Doesum, A., Corniejle, S. and van Kesteren, H., Fundamentals of EU VAT law, 2nd edition, 2020, p. 130). That is however beyond the purpose of the present Opinion (in that regard, see Ek, M., footnote 11, op. cit., p. 10).

²³ See, to that effect, judgments of 4 May 2017, Commission v Luxembourg (C‑274/15, EU:C:2017:333, paragraph 88), and of 12 November 2020, ITH Comercial Timişoara (C‑734/19, EU:C:2020:919, paragraph 50).

²⁴ See, to that effect, judgment of 12 November 2020, ITH Comercial Timişoara (C‑734/19, EU:C:2020:919, paragraphs 49 and 50).

²⁵ Judgment of 12 November 2020, ITH Comercial Timişoara (C‑734/19, EU:C:2020:919, paragraph 51).

²⁶ See, to that effect, judgment of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50, paragraphs 44 and 47).

²⁷ Merkx, M., footnote 13, op. cit., p. 281.

²⁸ That would be true if the supply of electricity could not be dissociated from the supply of other connected services. In such circumstances, the first supply by the CPO to the card issuer would be a single supply (of goods), while the second supply from the card issuer to the user would be a composite supply (of goods and services). This seemed to be the case in the circumstances of judgment of 20 April 2023, Dyrektor Krajowej Informacji Skarbowej (C‑282/22, EU:C:2023:312).

²⁹ See, to that effect, judgments of 4 October 2017, Mercedes-Benz Financial Services UK (C‑164/16, EU:C:2017:734, paragraph 31); of 13 June 2018, Gmina Wrocław (C‑665/16, EU:C:2018:431, paragraph 35); and of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:2021:132, paragraph 54).

³⁰ Nellen, F., van Doesum, A., Corniejle, S. and van Kesteren, H., Fundamentals of EU VAT law, 2nd edition, 2020, p. 130.

³¹ See, to that effect, judgments of 13 June 2018, Gmina Wrocław (C‑665/16, EU:C:2018:431, paragraph 36), and of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraph 38 and the case-law cited).

³² See, to that effect, judgment 13 June 2018, Gmina Wrocław (C‑665/16, EU:C:2018:431, paragraphs 35 and 41).

³³ Guidelines resulting from the 118th meeting of 19 April 2021, Document C‑taxud.c.1(2021)6657619-1018.

³⁴ According to Merkx, M., footnote 13, op. cit., p. 279, those guidelines ‘only took position as regards the qualification of the supply by the CPO’.

³⁵ See, to that effect, judgment of 19 February 2009, Athesia Druck (C‑1/08, EU:C:2009:108, paragraph 36).

³⁶ It must be stressed, however, that the present case does not concern that right.

³⁷ The concept of fiscal neutrality has its own particular significance in the theory of taxation and is therefore used in the field of tax law alongside, and sometimes in place of, the concept of equal treatment (Opinion of Advocate General Szpunar in Hauptzollamt B (Optional tax reduction), C‑100/20, EU:C:2021:387, point 76).