C-90/20 Apcoa Parking Danmark

JUDGMENT OF THE COURT (Second Chamber)

20 January 2022 ( *1 )

(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(c) – Scope – Taxable transactions – Activities carried out by a company incorporated under private law – Operation of car parks on private land – Control fees levied by that company in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks – Characterisation – Economic and commercial realities of the transactions)

In Case C‑90/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Højesteret (Supreme Court, Denmark), made by decision of 7 February 2020, received at the Court on 24 February 2020, in the proceedings

Apcoa Parking Danmark A/S

v

Skatteministeriet,

THE COURT (Second Chamber),

composed of A. Arabadjiev, President of the First Chamber, acting as President of the Second Chamber, I. Ziemele, T. von Danwitz, P.G. Xuereb (Rapporteur) and A. Kumin, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

Apcoa Parking Danmark A/S, by J. Steen Hansen, advokat,

the Danish Government, initially by J. Nymann-Lindegren as well as by M.S. Wolff and V.P. Jørgensen, and subsequently by M.S. Wolff and V.P. Jørgensen, acting as Agents, and by B. Søes Petersen, advokat,

Ireland, by J. Quaney and A. Joyce, acting as Agents,

the European Commission, by J. Jokubauskaitė and U. Nielsen, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 June 2021,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2The request has been made in proceedings between Apcoa Parking Danmark A/S (‘Apcoa’) and Skatteministeriet (Ministry of Taxation, Denmark) concerning the imposition of value added tax (VAT) on the control fees levied by Apcoa in the event of failure by the motorists to comply with the general terms and conditions for use of the car parks situated on private land managed by Apcoa.

Legal context

European Union law

3Article 2(1)(c) of the VAT Directive provides that ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such’ is to be subject to VAT.

4Article 9(1) of that directive states:

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

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

Danish law

The Law on VAT

5Paragraph 4(1) of the lov nr. 375 om merværdiafgift (Momsloven) (Law on VAT) of 18 May 1994 (Lovtidende 1994 A, p. 1727), in the version applicable to the dispute in the main proceedings (‘the Law on VAT’), provides:

‘Goods and services supplied for consideration within the national territory shall be subject to [VAT]. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner. Any other supply shall be a supply of services.’

6According to Paragraph 13(1)(8) of that law:

‘The following goods and services shall be exempt from [VAT]:

…

(8) The administration, letting and leasing of immovable property, including the supply of gas, water, electricity and heating as part of the letting or leasing. The exemption does not, however, cover … the letting of camp sites, parking areas and advertising spaces, or the hire of safes.’

7Paragraph 27(1) of that law provides:

‘In respect of the supply of goods and services, the taxable amount shall be paid, including subsidies directly linked to the price of the goods or services, but shall not include tax payable hereunder. If payment takes place in full or in part before the supply or before the invoice is issued, the taxable amount shall be 80% of the sum paid.’

The Law on Road Traffic

8The referring court notes that the færdselsloven (Law on Road Traffic), in the version applicable to the dispute in the main proceedings, does not list the situations in which control fees for parking in breach of the regulations may be levied on private land. It points out, however, that, following a legislative amendment in 2014, Paragraph 122c of that law states:

‘In the case of parking on the private property open to the public, the inspection charge (control fee) may be imposed only if this is clearly indicated on site (subject to a general and clearly marked prohibition on parking in the area).’

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

9Apcoa, a private company incorporated under Danish law, undertakes as its main activity the operation of car parks on private land under contracts with the site owners.

10As part of its activity, Apcoa determines the general terms and conditions for use of the car parks that it manages, such as those relating to pricing and maximum parking time.

11A sign at the entrance to each of those car parks states, first, that ‘the [parking] area is operated in accordance with the rules of private law’ and, second, that ‘control fees of 510 [Danish krone (DKK)]’ (approximately EUR 70) or ‘DKK 510 per day may be levied for infringement of the regulations’. Those amounts reflected the control fees applied by Apcoa in the tax years concerned, that is to say, 2008 and 2009.

12It is common ground that Apcoa carries out an economic activity within the meaning of the second subparagraph of Article 9(1) of the VAT Directive and is subject to VAT in respect of the payment of parking fees made in accordance with the rules for that payment. However, Apcoa denies that it is liable for VAT in respect of the control fees.

13On 25 October 2011, Apcoa applied to SKAT (the Danish tax authority) for a refund of the VAT paid in respect of those control fees during the period from 1 September 2008 to 31 December 2009. The amount was assessed at DKK 25089292 (approximately EUR 3370000).

14By decision of 12 January 2012, the tax authority refused that application on the ground that, under the applicable national provisions, as set out in paragraphs 5 to 8 of the present judgment, those control fees were regarded, under Danish law, as subject to VAT.

15That refusal, upheld by the Landsskatteretten (National Tax Tribunal, Denmark), was the subject of an appeal brought by Apcoa before the Retten i Kolding (Kolding District Court, Denmark). By judgment of 23 January 2017, that court dismissed that appeal, holding, in essence, that the control fees applied by Apcoa, which it classified as ‘increased parking charges’, levied in the event of failure by a motorist to comply with the general terms and conditions for use of the car parks managed by Apcoa, constituted consideration for the supply of the parking service provided to that motorist.

16Apcoa appealed against that judgment before the Vestre Landsret (High Court of Western Denmark, Denmark). By judgment of 10 September 2018, that court dismissed that appeal on the ground that, in the present case, there was a direct correlation between the parking service and the payment of the control fees for parking in breach of the regulations on private land. Thus, that amount had to be regarded as consideration for a supply of services within the meaning of Paragraph 4(1) of the Law on VAT.

17The judgment of the Vestre Landsret (High Court of Western Denmark) was the subject of an appeal before the Højesteret (Supreme Court, Denmark), the referring court, in the context of which Apcoa submitted, in essence, that the amount that it invoices in respect of those control fees, in the event of infringement by a motorist of the general terms and conditions for use of the car parks it manages, does not constitute consideration for retaining the right to park on which that motorist could rely in return for payment of parking charges. That amount, in so far as (i) it is predetermined, without a real economic link to the value of the parking service provided, and (ii) it constitutes, under Danish law, a penalty for infringement of those general terms and conditions for use, cannot be regarded as falling within the scope of Article 2(1)(c) of the VAT Directive, read in conjunction with Paragraph 4(1) of the Law on VAT.

18The Ministry of Taxation contends that, since, as consideration for the control fees for parking in breach of the regulations, the motorist concerned is effectively provided with a parking space, there is a direct link between the parking service and those control fees. Furthermore, that ministry notes that those control fees constitute a significant part of Apcoa’s turnover, since the amounts levied in respect of those control fees represented, for instance, 34% of its turnover in the tax year 2009.

19The referring court points out, first of all, that the present reference for a preliminary ruling concerns only the question of whether the control fees levied by Apcoa in the event of failure by the motorists to comply with the general terms and conditions for use of the car parks managed by that company are subject to VAT. Furthermore, that court states, first, that it is common ground that the parking itself is subject to VAT and, second, that the dispute in the main proceedings does not concern the charging of VAT on the sums distributed between Apcoa and the owner of the parking area concerned.

20That said, that court sets out the 13 types of situations in which Apcoa levies control fees for parking in breach of the regulations, namely:

‘1. Where the fee paid is insufficient.

2. Where no currently valid parking ticket is visible in the windscreen.

3. Where the ticket cannot be checked, for example where the parking ticket is not displayed correctly.

Situations 1 to 3 apply to paid parking.

4. Where there is no valid parking ticket, for example in the case of a residents’ parking zone where permission is required to use specific parking spaces.

5. Parking in spaces reserved for persons with reduced mobility. This ground for charging of control fees for parking in breach of the regulations applies only where there is a sign indicating parking for persons with reduced mobility, irrespective of whether parking is free or paid. To be able to park in those spaces, the motorist must have displayed proof of reduced mobility in the windscreen of his or her vehicle.

6. Parking outside designated parking spaces. This ground for charges of the control fees for parking in breach of the regulations applies to all types of parking spaces where there is a sign indicating that vehicles should be parked inside the spaces concerned.

7. Where parking is prohibited. This ground for charging of control fees for parking in breach of the regulations applies, for example, where a vehicle is parked on a fire emergency access route.

8. Reserved parking areas. This ground for charging of the control fees for parking in breach of the regulations applies to all types of parking spaces where vehicles must be parked in specific spaces.

9. Where no parking disc is visible.

10. Where a parking disc is incorrectly set or where the parking time indicated has been exceeded.

11. Where the parking disc is illegible. This ground for charging of control fees for parking in breach of the regulations applies, for example, where the needles on the parking disc have become detached or where there is an error in an electronic disc.

12. Where there is more than one parking disc. This ground for charging of control fees for parking in breach of the regulations applies where the motorist concerned has displayed several parking discs in the windscreen in order to extend the parking period.

Situations 9 to 12 apply where parking is free for a limited period but a parking disc is required as proof of the time the vehicle was parked.

13. Other. This ground for charging of control fees for parking in breach of the regulations applies to infringement of general parking regulations which do not correspond to any of the above 12 situations. It applies, for example, where parking clearly obstructs traffic. If this ground is used to justify charging of control fees, it shall be supplemented by a written description of the infringement.’

21The referring court then recalls the main findings from the case-law of the Court of Justice on the supply of services subject to VAT as regards, on the one hand, the terms and conditions relating to the existence of ‘reciprocal performance’ establishing a ‘legal relationship’ reflecting, as the case may be, a ‘direct link’ between the service supplied and the consideration received and, on the other hand, the condition that the sums paid constitute ‘actual consideration for an identifiable service’. It refers, in particular, to the judgments of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440), and of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942), stating that, in the context of the main proceedings, Apcoa relies on the first of those judgments while the Ministry of Taxation refers, in particular, to the latter judgment.

22Lastly, the referring court notes that, traditionally, in Denmark, sums levied by private-law management companies, such as Apcoa, in respect of control fees for parking in breach of the regulations have always been regarded as subject to VAT. In that regard, that court refers, in particular, to its case-law resulting from a judgment of 12 April 1996, in which it ruled on the nature, for VAT purposes, of such control fees, which it had classified as ‘increased parking fees’. It is apparent from that judgment that such ‘increased fees’, levied on the basis of a quasi-contractual relationship, had to be regarded as consideration for a supply of services and, therefore, subject to VAT, notwithstanding the fact that those ‘increased fees’ were fixed at a predetermined and substantial rate compared to that corresponding to the ordinary parking fee itself due to the fact that those ‘increased fees’ were aimed at preventing parking in breach of the regulations.

23It is therefore possible to take the view that the obligation on the motorists who have infringed the general terms and conditions for use of the car parks concerned to pay control fees for parking in breach of the regulations is based on a quasi-contractual relationship and that there is therefore a ‘legal relationship’ within the meaning of the case-law arising from the judgment of 3 March 1994, Tolsma (C‑16/93, EU:C:1994:80, paragraphs 13 and 14) between Apcoa and those motorists. However, doubts remain as to whether those control fees may legitimately be regarded as constituting payment for a supply of services subject to VAT, supported by the fact that, according to the information available to that court, the tax authorities of other Member States of the European Union, such as the Federal Republic of Germany and the Kingdom of Sweden, do not subject such control fees to VAT.

24In those circumstances, the Højesteret (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(1)(c) of [the VAT Directive] be interpreted as meaning that control fees for infringement of regulations on parking on private property constitute consideration for a service supplied and that there is therefore a transaction subject to VAT?’

Consideration of the question referred

25By its question, the national court asks, in essence, whether Article 2(1)(c) of the VAT Directive must be interpreted as meaning that the control fees levied by a company incorporated under private law, tasked with the operation of private car parks, in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks must be regarded as consideration for a supply of services within the meaning of that provision and, as such, subject to VAT.

26In that regard, it must be borne in mind that, in accordance with Article 2(1)(c) of the VAT Directive, which defines the scope of VAT, the supply of services for consideration within the territory of a Member State by a taxable person acting as such is to be subject to VAT.

27A supply of services is carried out ‘for consideration’, within the meaning of that provision, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the actual consideration for an identifiable service supplied to the recipient. That is the case if there is a direct link between the service supplied and the consideration received (judgment of 16 September 2021, Balgarska natsionalna televizia, C‑21/20, EU:C:2021:743, paragraph 31 and the case-law cited).

28In the present case, it must be noted that parking in a particular space in one of the car parks managed by Apcoa gives rise to a legal relationship between that company, as a service provider and manager of the car park concerned, and the motorist who used that space.

29In that regard, it is apparent from the documents available before the Court that, in the context of that legal relationship, the parties enjoy rights and assume obligations, in accordance with the general terms and conditions for use of the car parks concerned, which include, in particular, the provision of a parking space by Apcoa and the obligation on the motorist concerned to pay, in addition to the parking fees, where appropriate, in the event of failure to comply with those general terms and conditions, the amount corresponding to the control fees for parking in breach of the regulations, as indicated on the signs mentioned in paragraph 11 of the present judgment.

30Accordingly, in that context, with regard to, on the one hand, the condition relating to the existence of reciprocal performance, within the meaning of the case-law cited in paragraph 27 of the present judgment, it appears that that condition is fulfilled. The payment of parking fees and, where appropriate, of the amount corresponding to the control fees for parking in breach of the regulations constitutes consideration for the provision of a parking space.

31As regards, on the other hand, the condition that the remuneration received by the provider of the service must constitute the actual consideration for the service supplied to the recipient, within the meaning of the case-law cited in paragraph 27 of the present judgment, it must be noted, as the Advocate General did in point 51 of his Opinion, that the motorist who pays those control fees has had the benefit of a parking space or area and that the amount of those control fees is determined by the fact that the terms and conditions which the motorist concerned accepted are satisfied.

32Accordingly, the total amount of the sums which the motorists have undertaken to pay as consideration for the parking service provided by Apcoa, including, where appropriate, the control fees for parking in breach of the regulations, represents the terms and conditions under which they actually benefited from a parking space, even if they chose to make excessive use of it by exceeding the permitted parking time, by failing to provide proper evidence of their right to park or by parking in a reserved space, in a space which they were not entitled to use or in an obstructive manner, contrary to the general terms and conditions for use of the car parks concerned.

33It therefore appears that those control fees may have a direct link with the parking service and, as a result, that they may be regarded as forming an integral part of the total amount that those motorists have undertaken to pay to Apcoa by deciding to park their vehicle in one of the car parks managed by that company.

34Furthermore, the amount of those control fees corresponds to the remuneration for part of the costs associated with the supply of the services provided to them by Apcoa. As observed by the Advocate General in point 61 of his Opinion, that amount necessarily takes into account the higher cost of operating car parks which is caused by parking that does not satisfy the normal terms and conditions for use of the service offered. That consideration also seeks to ensure that Apcoa receives contractual remuneration for the service carried out in circumstances attributable to the user, which are not such as to change the economic and commercial realities of their relationship.

35That finding is supported by the information provided by Apcoa in response to the written questions sent to it by the Court in the present proceedings, according to which, in essence, Apcoa confirmed that it obtains income from those control fees on a continuing basis. In that regard, it is apparent from the documents available before the Court that, for the tax years 2008 and 2009, the income received by Apcoa from those control fees amounted to approximately 35% of its turnover, that is to say, EUR 10.4 million in 2008 and EUR 11 million in 2009.

36In addition, in response to the written questions asked by the Court, Apcoa points out, in essence, that if, at the end of the parking period for which parking fees have been paid by the motorist concerned, the motorist in question does not take back his or her vehicle, that vehicle is still parked and subject to charging of the control fees for parking in breach of the regulations, which may be repeated, until that motorist comes to collect it.

37Such factors are capable of establishing the existence of a direct link between the service supplied and the control fees levied by Apcoa within the meaning of the case-law cited in paragraph 27 of the present judgment.

38That conclusion is supported by the economic and commercial realities of the transaction concerned, subject to verification by the referring court. As regards the importance of contractual terms in a taxable transaction, the consideration of those realities is a fundamental criterion for the application of the common system of VAT (see, to that effect, judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia, C‑295/17, EU:C:2018:942, paragraph 43 and the case-law cited).

39Apcoa and the European Commission submitted, however, that the amount paid by a motorist in respect of such control fees cannot be regarded as constituting the actual consideration for an identifiable service supplied to the recipient nor could it be understood as consideration for a supply of independent services, within the meaning of the case-law arising from the judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440, paragraphs 21 to 35), since the provision of a parking space by Apcoa does not depend on the payment of those control fees by the motorist concerned.

40In that regard, it should be noted that, for VAT purposes every supply must normally be regarded as being distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (judgments of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 29 and the case-law cited, and of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 68 and the case-law cited).

41The Court has, however, accepted that there is a direct link where two services are dependent on each other, that is to say, that one is made only on condition that the other is also made, and vice versa (judgment of 11 March 2020, San Domenico Vetraria, C‑94/19, EU:C:2020:193, paragraph 26 and the case-law cited).

42That is the case here, in so far as, as observed by the Advocate General in point 66 of his Opinion, there is a link between the fact that Apcoa receives control fees for parking in breach of the regulations and the parking undertaken by the motorist concerned in specific circumstances determined by Apcoa which give rise to that increased fee. The need for monitoring of parking in breach of the regulations and, consequently, the imposition of such control fees would not exist if the service of providing a parking space was not supplied in advance.

43Furthermore, it should be noted that, in the case which gave rise to the judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440), the services in question had not been supplied. In the case in the main proceedings, the service of providing a parking space was carried out.

44Nor do the arguments relied on by Apcoa that, first, the amount that it charges in respect of the control fees for parking in breach of the regulations is predetermined and without a real economic link with the value of the parking service supplied and that, second, that amount constitutes a penalty under Danish law, preclude the finding reached in paragraph 37 of the present judgment.

45As regards, in the first place, Apcoa’s argument that that amount is predetermined and has no real economic link with the value of the parking service supplied, it must be recalled that, according to settled case-law, with regard to the characterisation of a transaction as a transaction carried out for consideration within the meaning of Article 2(1)(c) of the VAT Directive, the amount of the consideration, in particular the fact that it is equal to, greater or less than the costs which the taxable person incurred in providing the service, is irrelevant. That fact is not such as to affect the direct link between the services supplied and the consideration received (judgment of 11 March 2020, San Domenico Vetraria, C‑94/19, EU:C:2020:193, paragraph 29 and the case-law cited).

46With regard to, in the second place, the argument relied on by Apcoa that the amount which it charges in respect of the control fees for parking in breach of the regulations is classified, under national law, as a penalty, it is sufficient to recall, as the Advocate General did, in essence, in point 42 of his Opinion, that, for the purposes of interpreting the provisions of the VAT Directive, the assessment of whether payment of a fee is made as consideration for a supply of services is a question of EU law which needs to be determined independently of the assessment made under national law (judgment of 22 November 2018, MEO – Serviços de Comunicações e Multimédia, C‑295/17, EU:C:2018:942, paragraphs 69 and 70).

47In the light of all the foregoing considerations, the answer to the question referred is that Article 2(1)(c) of the VAT Directive must be interpreted as meaning that the control fees levied by a company incorporated under private law, tasked with the operation of private car parks, in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks must be regarded as consideration for a supply of services within the meaning of that provision and, as such, subject to VAT.

Costs

48Since 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 (Second Chamber) hereby rules:

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the control fees levied by a company incorporated under private law, tasked with the operation of private car parks, in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks must be regarded as consideration for a supply of services within the meaning of that provision and, as such, subject to value added tax (VAT).

Signatures

[Signatures]

( *1 ) Language of the case: Danish.

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 3 June 2021 ¹

(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Taxable transactions – Supply of services for consideration – Fees charged for infringement of regulations on parking on private property – Characterisation)

I. Introduction

1The request for a preliminary ruling concerns the interpretation of Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. ²

2The request was made in proceedings between Apcoa Parking Danmark A/S (‘Apcoa’) and the Skatteministeriet (Ministry of Taxation, Denmark) concerning whether control fees for infringement of regulations on parking on private property are subject to value added tax (VAT).

3The Court is invited to rule on whether those fees constitute an amount payable as compensation for breach of contractual obligations or, in contrast, consideration for an identifiable supply for the purposes of the VAT Directive.

4I will set out the reasons that lead me to propose that the Court should find them to be the latter.

II. Legal context

A. The VAT Directive

5Article 2(1)(c) of the VAT Directive provides that ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such’ is subject to VAT.

6Article 9(1) of that directive provides:

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

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

7According to Article 14(1) of that directive, the transfer of the right to dispose of tangible property as owner is considered to be a ‘supply of goods’.

8Article 24(1) of the directive provides:

‘“Supply of services” shall mean any transaction which does not constitute a supply of goods.’

9Under Article 25 of the VAT Directive:

‘A supply of services may consist, inter alia, in one of the following transactions:

the assignment of intangible property, whether or not the subject of a document establishing title;

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

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

10Article 135(1)(l) and (2)(b) of that directive provides:

‘1. Member States shall exempt the following transactions:

…

the leasing or letting of immovable property.

2. The following shall be excluded from the exemption provided for in point (l) of paragraph 1:

…

the letting of premises and sites for the parking of vehicles’.

B. Danish law

1. The Law on VAT

11Paragraph 4(1) of the lov om merværdiafgift (Law on Value Added Tax) ³ provides:

‘Goods and services supplied for consideration within the national territory shall be subject to the tax. “Supply of goods” shall mean the transfer of the right to dispose of tangible property as owner. Any other supply shall be a supply of services.’

12Under Paragraph 13(1)(8) of that law:

‘The following goods and services shall be exempt from the tax:

…

The administration, letting and leasing of immovable property, including the supply of gas, water, electricity and heating as part of the letting or leasing. The exemption does not, however, cover … the letting of camp sites, parking areas and advertising spaces, or the hire of safes.’

13Paragraph 27(1) of that law provides:

‘In respect of the supply of goods and services, the taxable amount shall be paid, including subsidies directly linked to the price of the goods or services, but shall not include tax payable hereunder. If payment takes place in full or in part before the supply or before the invoice is issued, the taxable amount shall be 80% of the sum paid.’

2. The Law on Road Traffic

14According to the referring court, the færdselsloven (Law on Road Traffic) does not specify the situations in which control fees can be charged for parking on private land in breach of the regulations. However, since a legislative amendment in 2014, it has provided in Paragraph 122c(1) that an inspection charge (control fee) may be imposed in respect of parking on publicly accessible private land only if that is clearly indicated on site (subject to any clearly marked general prohibition on parking in the area).

III. The facts of the dispute in the main proceedings and the question referred

15Apcoa is a private company that operates car parks on private land under contracts with the site owners. It lays down conditions for use of the parking areas, such as a prohibition on parking without an individual permit, maximum parking time and any payment of a fee for parking. Where the conditions of use are infringed, Apcoa levies additional specific control fees (510 Danish krone (DKK) (approximately EUR 69) in 2008 and 2009).

16A sign at the entrance to the car parks at issue states, inter alia, that ‘control fees of DKK 510 may be charged for infringement of the regulations’ or ‘control fees of DKK 510/day may be charged for infringement of the regulations’. They also state that ‘the car park is operated in accordance with the rules of private law’.

17Apcoa is subject to VAT on the fees charged for parking in accordance with the parking regulations.

18On 25 October 2011, Apcoa applied to SKAT (the Danish tax authority) for a refund of the VAT paid in respect of control fees levied between 1 September 2008 and 31 December 2009, assessed at DKK 25089292 (approximately EUR 3370000).

19The dispute does not concern whether VAT is payable on sums arising under the relationship between Apcoa and the landowner of the car park in question.

20On 12 January 2012, SKAT refused the application on the ground that the control fees are regarded as subject to VAT under Paragraphs 4(1) and 27(1) of the Law on VAT, read in conjunction with the second sentence of Paragraph 13(1)(8) of that law.

21On 23 December 2014, the Landsskatteretten (National Tax Tribunal, Denmark) upheld that decision.

22The Landsskatteretten (National Tax Tribunal) listed 13 types of situation in which Apcoa can levy control fees:

‘1. Where the fee paid is insufficient.

2. Where no currently valid parking ticket is visible in the windscreen.

3. Where the ticket cannot be checked, for example where the parking ticket is not displayed correctly.

Situations 1 to 3 apply to paid parking.

4. Where there is no valid parking ticket, for example in the case of a residents’ parking zone where permission is required to use specific parking spaces.

5. Parking in disabled parking spaces. This ground for charges applies only where there is a disabled parking sign, irrespective of whether parking is free or paid. To be able to park in those spaces, the motorist must have displayed evidence of entitlement in the windscreen.

6. Parking other than in designated parking places. This ground applies to all types of parking spaces where there is a sign indicating that vehicles should be parked inside the spaces.

7. Where parking is prohibited. This ground for charges applies, for example, where a vehicle is parked on a fire emergency access route.

8. Reserved parking areas. This ground for charges applies to all types of parking spaces where vehicles must be parked in the specific spaces.

9. Where no parking disc is visible.

10. Where a parking disc is incorrectly set/the parking time indicated has been exceeded.

11. Where the parking disc is illegible. This ground for charges applies, for example, where the needles on the parking disc have become detached or where there is an error in an electronic disc.

12. Where there is more than one parking disc. This ground for charges applies where the motorist has displayed several parking discs in the windscreen in order to extend the parking period.

Grounds for charges 9 to 12 are applied where parking is free for a limited period but a parking disc is required as proof of the time the vehicle was parked.

13. Other. This ground for charges applies to the infringement of parking regulations not described in any of the 12 preceding points. Point 13 applies, for example, where the parking clearly obstructs traffic. If this ground for charges is used to justify the levying of control fees, it shall be supplemented by a written description of the infringement.’

23Apcoa’s action against that decision was dismissed by the Retten i Kolding (Kolding District Court, Denmark) by a judgment of 23 January 2017, which was upheld by the Vestre Landsret (High Court of Western Denmark, Denmark) by its judgment of 10 September 2018.

24Apcoa appealed against that judgment to the Højesteret (Supreme Court, Denmark) seeking, inter alia, acknowledgement by the Ministry of Taxation that the control fees levied for infringement of the parking regulations – in the relationship between the individual motorist and Apcoa – do not constitute consideration for a service subject to VAT within the meaning of Paragraph 4(1) of the Law on VAT, read in conjunction with Article 2(1)(c) of the VAT Directive.

25The referring court states that the parties disagree as to whether there is a mutual exchange of services, in the light of the judgment of 3 March 1994 in Tolsma. ⁴ Having regard to the Court’s case-law on the expression ‘supply of services’, it is uncertain whether Article 2(1)(c) of the VAT Directive can be interpreted as a basis for considering the control fees at issue to be remuneration for a service.

26The referring court notes that, according to the information in the case file, the German, Swedish and United Kingdom tax authorities take the view that control fees for infringement of parking conditions on private land are not subject to VAT.

27In those circumstances, the Højesteret (Supreme Court) stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(1)(c) of [the VAT Directive] be interpreted as meaning that control fees for infringement of regulations on parking on private property constitute consideration for a service supplied and that there is therefore a transaction subject to VAT?’

28Apcoa, the Danish Government, Ireland and the European Commission filed written observations.

29Apcoa and the Danish Government replied within the time limits given to the questions to be answered in writing.

IV. Analysis

30By its request for a preliminary ruling, the referring court enquires whether a transaction consisting of levying control fees ⁵ for infringement of parking conditions on private sites managed by Apcoa can be characterised as a supply of services, within the meaning of the VAT Directive.

31Several principles need to be called to mind at the outset.

A. Summary of the applicable principles

32First, as the Court of Justice stated in its judgment of 2 June 2016 in Lajvér: ⁶

although the VAT directive gives a very wide scope to VAT, only activities of an economic nature are covered by that tax;

‘economic activity’ is defined in the second subparagraph of Article 9(1) of the VAT Directive as including all activities of producers, traders and persons supplying services, inter alia the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis; and

under the second subparagraph of Article 9(1) of the VAT Directive, in accordance with the requirements of the principle of neutrality of the common system of that tax, the term ‘exploitation’ refers to all transactions, whatever may be their legal form, by which it is sought to obtain income from the goods in question on a continuing basis.

33Secondly, according to Article 24 of the VAT Directive, ‘supply of services’ means any transaction which does not constitute a supply of goods.

34Thirdly, it can be seen from the Court’s settled case-law that a supply of services is made for consideration, within the meaning of the VAT Directive, and hence is taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. That is the case if there is a direct link between the service supplied and the consideration received, the sums paid constituting actual consideration for an identifiable service supplied in the context of such a legal relationship. ⁷

B. Characterisation of the control fees

35Since the dispute in the main proceedings does not concern whether Apcoa receives income from control fees on an ongoing basis, ⁸ it is necessary to determine the characteristics of the supply of services and of the consideration for that supply, having regard to the economic reality of the transaction at issue. ⁹

36It should be noted in that respect that:

consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT, as opposed to how the parties to the contract formally characterise the transaction; ¹⁰

the concept of ‘supply of services’ must be interpreted without regard to the purpose or results of the transactions concerned, ¹¹ and

the amount of the consideration, in particular the fact that it is equal to or greater or less than the costs which the taxable person incurred in providing his or her service, is not such as to affect the direct link between the services supplied and the consideration received. ¹²

37I will therefore examine the following questions in turn:

Is there a service?

Does the amount payable constitute actual consideration?

Is there a direct link between the two?

1. A service

38It is apparent from the request for a preliminary ruling that Apcoa manages private car parks on behalf of private landowners. ¹³

39In that capacity, Apcoa sets the conditions for using the car parks, such as:

a prohibition on parking without specific permission;

the maximum parking period;

the amount of parking fees; and

the payment of specific fees ¹⁴ in the event of infringement of the parking regulations. To summarise, those fees, referred to as ‘control fees’, are charged where the period from which other parking fees are payable is exceeded or where there is no valid proof of parking or incorrect use of the parking area or space.

40It emerges from the request for a preliminary ruling and the observations of the parties and interested parties that the key question to be determined is whether the conclusion that the Court reached in its judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains, ¹⁵ can be extended by analogy to cover the transactions at issue and, therefore, be distinguished from the conclusion reached in the judgment in MEO – Serviços de Comunicações e Multimédia.

41Specifically, should the control fees be regarded as compensation, as Apcoa and the Commission suggest, or as consideration for the benefit enjoyed by a customer, that is to say, a space to park a vehicle, irrespective of the particular circumstances associated with the parking regulations, as the Højesteret (Supreme Court) has already held ¹⁶ and as the Danish Government claims?

42I share the second view. First, I would recall that, according to the Court’s case-law, how contractual provisions are characterised under national civil law is of no effect unless those provisions genuinely reflect the economic reality of the transaction, which it is for the referring court to determine. ¹⁷

43Second, the control fees seem to me to be components of the consideration for the opportunity to park their vehicles that is offered to customers, by reason of the economic components that comprise those fees.

44Apcoa offers a service consisting of making parking spaces available to motorists, according to a variety of practical arrangements. In order to do so, Apcoa has defined spaces and reserved some of them, such as those for disabled customers. That service is supplied irrespective of whether or not the regulations governing use of those spaces are complied with.

45In specific terms, as soon as a motorist enters an Apcoa-managed car park, he or she is placed in a position to benefit from a parking space for a given period.

46That service falls within the definition of ‘letting’ within the meaning of Article 135(2)(b) of the VAT Directive, which includes any economic activity consisting of receiving remuneration in consideration for making vehicle parking spaces available, irrespective of the legal status of the person letting them or whether that person owns those spaces. ¹⁸

47That being so, where Apcoa charges additional fees, it is necessary to ascertain whether any analogy can be drawn with the solution that the Court identified in its judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains as regards whether those fees are subject to VAT. ¹⁹

48In that judgment, the Court held that ‘a sum paid as a deposit, in the context of a contract relating to the supply of hotel services which is subject to VAT, is to be regarded, where the client exercises the cancellation option available to him and that sum is retained by the hotelier, as a fixed cancellation charge paid as compensation for the loss suffered as a result of client default and which has no direct connection with the supply of any service for consideration and, as such, is not subject to that tax.’ ²⁰

49The Court stated that ‘the retention of the deposit at issue in the main proceedings is … triggered by the client’s exercise of the cancellation option made available to him and serves to compensate the hotelier following the cancellation’. ²¹ Accordingly, in such a situation, it is because the hotelier was unable to provide the hotel service reserved by the client and because the client, obviously, did not use the service that the client compensates the hotelier for a loss of profit.

50My view is therefore that the scope of the judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains, ²² should be confined to those cases in which the contracting party is compensated because there was no transaction, which is in line with the judgments of 1 July 1982, BAZ Bausystem ²³ (concerning interest on account of late payment); of 29 February 1996, Mohr ²⁴ (concerning compensation for lost business); and of 18 January 2017, SAWP ²⁵ (concerning fair compensation for the holders of reproduction rights).

51In the present case, where an Apcoa-managed car park is used, the motorist who pays control fees has had the benefit of a parking space or area. The amount of the fees is determined by the fact that the conditions which the motorist accepted on entering the car park are fulfilled.

52Under those circumstances, I believe, in common with the Danish Government, that it is helpful to compare the situation under analysis with the judgment in Vodafone Portugal, delivered after the request for a preliminary ruling was submitted and after Apcoa filed its written observations, because it has had the effect of supplementing the judgment in MEO – Serviços de Comunicações e Multimédia, ²⁶ in a manner conducive to an interpretation of the scope of that judgment different from the scope for which Apcoa argues in its written observations.

53In Vodafone Portugal, the Court stated that:

‘In the context of its business activities, [Vodafone Portugal – Comunicações Pessoais SA (‘Vodafone’)] concludes with its customers services contracts, some of which include special promotions subject to conditions which tie those customers in for a predetermined minimum period (“the tie-in period”). Under those terms and conditions, customers commit to maintaining a contractual relationship with Vodafone and to using the goods and services supplied by that company for the tie-in period, in exchange for benefiting from advantageous commercial conditions, usually related to the price payable for the contracted services’; ²⁷ and

‘failure by customers to comply with the tie-in period for reasons attributable to themselves results in them paying the amounts provided for in the contracts. Those amounts seek to deter such customers from failing to comply with the tie-in period.’ ²⁸

54The Court noted the following features: ²⁹

‘Vodafone commits to providing to its customers the supplies of services agreed in the contracts concluded with them and under the conditions stipulated in those contracts’; and

‘its customers commit to paying the monthly instalments provided for under those contracts and also, if necessary, the amounts due where those contracts were terminated before the end of the tie-in period for reasons specific to those customers’.

55The Court held that ‘where those customers do not comply with that tie-in period, the supply of services must be regarded as having been made, since those customers are placed in a position to benefit from those services’. ³⁰

56Having regard to the economic reality of the transactions, the Court found that the amounts payable by customers reflect the recovery of some of the costs associated with the supply of the services which that operator has provided to those customers. ³¹ Those amounts represent part of the cost of the service which the provider committed to supplying ³² and seek to guarantee the operator a minimum remuneration for the service provided. ³³

57In my view that finding can be transposed to the transactions at issue in the main proceedings since, in common with the Danish Government, I believe that, in the situations in which control fees are payable, the users of Apcoa-managed car parks have had an opportunity to benefit from a place to park. The price of that service is correlated with the ways in which the sites can be used that the operator is not able to control.

2. Actual consideration

58Apcoa argues that the control fees are not consideration for a supply, because they are at a standard rate far above the value of the supply made to the motorist. In common with the Commission, it asserts that those fees seek to penalise an infringement of the conditions of use of its car parks.

59However, first, I would note that the Court has held that the amount of the consideration is irrelevant. ³⁴ Second, no argument can be based on the fact that the flat-rate charge is intended to deter clients from infringing the parking regulations because, according to settled case-law, the purpose and results of the transaction concerned are irrelevant to its characterisation, which is determined exclusively by the economic reality. ³⁵

60In the present case, my view is that, first, the amount of the control fees is correlated with the fact that a driver who has parked in a car park made available by Apcoa chooses to exceed the time for using the parking space concerned, or not to correctly prove entitlement to use it or to park either in a space not reserved for that motorist or in a manner that causes an obstruction.

61Second, in terms of the economic reality, it should be found that the amount of the control fees necessarily take into account the higher cost of operating car parks. That increased cost is caused by parking that does not fulfil the normal conditions of use of the service offered. In other words, the amount of the consideration seeks to provide Apcoa with contractual remuneration for the supply made in circumstances attributable to the user which do not alter the economic and commercial reality of its relationship with the user.

62I note that the June 2013 report on enhanced consumer protection in the field of parking, drawn up by a working group of the Justitsministeriet (Danish Ministry of Justice), to which the referring court refers, states that ‘the representatives of the Danske Private Parkeringsselskabers Brancheforening [(Danish Private Parking Association)] informed the working group that the increase [in private parking fees ³⁶] to DKK 590 was prompted inter alia by an ongoing increase in the various operating expenses of a parking undertaking and by the fact that the public tariff could no longer be charged. That association asserted specifically in that respect that the fee had to reflect the higher price of parking compliant with the regulations, that companies are subject to VAT on the parking fees paid and that, unlike the fees imposed by public authorities, their payment cannot be required of the owner on the basis of third-party liability’. The report also states that ‘the level of the current private parking fees is determined on the basis of calculations of overall changes in prices and pay and in fact normally depends on costs and on the market’. ³⁷

3. Link between the service and the actual consideration

63It is apparent from settled case-law that a supply of services is effected ‘for consideration’, within the meaning of Article 2(1)(c) of the VAT Directive, and is therefore subject to tax, only if there is a direct link between the service supplied and the consideration received. ³⁸

64Apcoa concurs with the Commission in considering there to be no such direct link, because there is no specific economic link with the value of a parking service.

65However, it emerges from the Court’s settled case-law that there is a direct link where two services are mutually dependent on each other, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient, that is to say, that one is made only on condition that the other is also made, and vice versa. ³⁹

66That is the case here. There is direct link between a motorist’s parking in specific circumstances determined by Apcoa and the fact that Apcoa receives increased parking fees.

67Moreover, in my view liability to tax cannot depend on whether the customer uses the parking space or area supplied correctly or incorrectly. A person who benefits from the supply of a parking service at an ordinary price cannot be treated differently for the purposes of VAT from a person who is prepared to use that service at a higher cost. ⁴⁰

68I therefore conclude that the control fees received by Apcoa constitute actual consideration for the parking service enjoyed by the client in specific circumstances chosen by the client and, accordingly, that they are subject to VAT.

V. Conclusion

Conclusion

69In the light of the foregoing, I propose that the Court should reply as follows to the question referred by the Højesteret (Supreme Court, Denmark) for a preliminary ruling:

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the fees levied by an economic operator in consideration for the parking of vehicles, where the amount of those fees is fixed by the operator on the basis of the conditions of use relating to that parking, must be considered to be remuneration for a supply of services for consideration and as such subject to that tax.

¹ Original language: French.

² OJ 2006 L 347, p. 1 (‘the VAT Directive’).

³ ‘The Law on VAT’.

⁴ C‑16/93, EU:C:1994:80.

⁵ In the documents submitted to the Court, different expressions are used to refer to those fees: ‘control fees’, ‘penalty fees’, ‘increased parking fees’ and ‘parking fees’. Apcoa has stated that those control fees are commonly referred to as ‘parking fines’. In order to be consistent with the request for a preliminary ruling and the contents of the official documents to which it refers, I will use the expression ‘control fees’.

⁶ C‑263/15, EU:C:2016:392, paragraphs 20, 23 and 24. See, also, by way of a recent summary of those principles, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:2021:132, paragraphs 67 to 69).

⁷ See judgment of 21 January 2021, UCMR – ADA (C‑501/19, EU:C:2021:50, paragraph 31 and the case-law cited).

⁸ The Danish Government stated that increased parking fees are inherent to Apcoa’s economic model and represented 34% to 35% of its total net turnover, that is to say approximately EUR 10.4 million in 2008 and EUR 11 million in 2009.

⁹ See judgments of 22 November 2018, MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942, ‘judgment in MEO – Serviços de Comunicações e Multimédia’, paragraphs 61 and 62), and of 11 June 2020, Vodafone Portugal (C‑43/19, EU:C:2020:465, ‘judgment in Vodafone Portugal’, paragraphs 47 to 49). As Advocate General Kokott stated in her Opinion in Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:2020:647, point 35), ‘not all payments necessarily result in taxable reciprocal performance’.

¹⁰ See judgment in MEO – Serviços de Comunicações e Multimédia (paragraph 43 and the case-law cited), and judgment of 17 December 2020, Franck (C‑801/19, EU:C:2020:1049, paragraph 43).

¹¹ See judgment in MEO – Serviços de Comunicações e Multimédia (paragraph 60 and the case-law cited).

¹² See judgment of 11 March 2020, San Domenico Vetraria (C‑94/19, EU:C:2020:193, paragraph 29).

¹³ The circumstances are therefore different from those which the Court was called upon to examine in the earlier cases. As regards the taxation of the activities of a body governed by public law consisting of making spaces available to motorists for parking their vehicles in return for financial consideration, either on the public highway or in car parks established on the city’s public property, its private property or land belonging to private individuals, and the need to determine whether that body is acting as a public authority, see judgment of 14 December 2000, Fazenda Pública (C‑446/98, EU:C:2000:691, paragraphs 21 to 23). See, also, as an example of the variety of situations in which parking fees are recovered, judgment of 25 March 2021, Obala i lučice (C‑307/19, EU:C:2021:236, paragraphs 27, 67, 95 and 96), concerning judicial cooperation in civil matters, on the management and maintenance of public parking zones by a company incorporated by a local authority for that purpose.

¹⁴ In its reply to the Court’s written question, Apcoa stated that ‘where the parking time is exceeded, only control fees are charged’.

¹⁵ C‑277/05, EU:C:2007:440.

¹⁶ The request for a preliminary ruling notes that in 2007 and 2014 the Landsskatteretten (National Tax Tribunal) followed a judgment delivered by the referring court on 12 April 1996 concerning the tax payable by Apcoa on control fees. The Højesteret (Supreme Court) held that the increased fees, levied on the basis of a quasi-contractual relationship, had to be regarded as consideration for a service and, therefore, as subject to VAT, regardless of the fact that they were set at a standard rate which was very high in comparison with the ordinary parking fee and intended to prevent parking in breach of the regulations.

¹⁷ See the first indent of point 36 of this Opinion. See, also, Opinion of Advocate General Kokott in MEO – Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:413, point 34) in which she notes that ‘it is of no importance … how the national law regards the indemnity. It is irrelevant from the point of view of VAT law … whether it is to be regarded as compensation for a claim in tort or a contractual penalty, or as damages, compensation or consideration.’

¹⁸ So far as I am aware, the Court has delivered only one judgment on the scope of Article 135 of that directive. This is the judgment of 13 July 1989, Henriksen (173/88, EU:C:1989:329, paragraph 17), concerning a letting of spaces which was linked to a non-taxable letting. The Court interpreted Article 13B(b) of the 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), whose provisions correlate to those of Article 135(2)(b) of the VAT Directive (see Annex XII to that latter directive).

¹⁹ C‑277/05, EU:C:2007:440.

²⁰ Judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440, paragraph 36).

²¹ Judgment of 18 July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440, paragraph 32).

²² C‑277/05, EU:C:2007:440.

²³ 222/81, EU:C:1982:256, paragraph 8.

²⁴ C‑215/94, EU:C:1996:72, paragraph 21.

²⁵ C‑37/16, EU:C:2017:22, paragraph 30.

²⁶ See footnote 33 of this Opinion.

²⁷ Judgment in Vodafone Portugal (paragraph 18).

²⁸ Judgment in Vodafone Portugal (paragraph 19).

²⁹ Judgment in Vodafone Portugal (paragraph 37).

³⁰ Judgment in Vodafone Portugal (paragraph 41).

³¹ Judgment in Vodafone Portugal (paragraph 38).

³² Judgment in Vodafone Portugal (paragraph 39).

³³ See judgment in Vodafone Portugal (paragraph 40). On the basis of its findings on how the amounts payable are calculated (see paragraph 34 of that judgment), the Court responded to the referring court’s doubts, expressed in paragraphs 26 and 27 of its judgment, as to the scope of the judgment in MEO – Serviços de Comunicações e Multimédia on account of its statements concerning the fact that the amount paid in respect of the failure to comply with the tie-in corresponded to the amount which the operator concerned would have received during the remainder of that period had the contract not been terminated.

³⁴ See the third indent of point 36 of this Opinion.

³⁵ See the second indent of point 36 of this Opinion.

³⁶ That expression drawn from the referring court’s quotation from the June 2013 report corresponds to the expression ‘control fees’, see footnote 5 of this Opinion.

³⁷ The Danish Government indicated that those fees have increased regularly since 2009 and that, for 2020, they had been set by several private parking companies, including Apcoa, at at least DKK 750 (approximately EUR 100).

³⁸ See point 34 of this Opinion.

³⁹ See judgment of 11 March 2020, San Domenico Vetraria (C‑94/19, EU:C:2020:193, paragraph 26 and the case-law cited).

⁴⁰ See, by analogy, judgment in MEO – Serviços de Comunicações e Multimédia (paragraph 47).