- The disputes over whether the cost of insurance should be included in the tax base for the leasing service or whether it could be passed on (‘re-invoiced’, which in the view of the Polish courts compelled the interpretation that insurance is provided by a professional, independent insurance provider, not by the leasing company) and thus enable the application of the VAT exemption, date back to times before the accession of Poland to the European Union in 2004 and arose on the basis of the Act on Value Added Tax and on Excise Duty from 1993. See Małgorzata Militz, ‘Glosa do uchwaly NSA z dnia 8 listopana 2010 r., I FPS 3/10. Leasing i ubezpieczenie to jedno świadczenie' (2010) 12 Przeglqd Podatkowy 40.
- Case C-224/11 BGŻ Leasing sp. z o.o. [2013] ECR I-0000.
- Which were shared by national administrative courts, including the Supreme Administrative Court. See, for example, the judgment of the Regional Administrative Court of Warsaw of 10 December 2009 (III SA/Wa 1022/09), the judgment of the Regional Administrative Court of Wrocław of 28 January 2010 (I SA/Wr 1637/09), and the resolution of the Supreme Administrative Court of 8 November 2010, I FPS 3/10, ONSAiWSA 2011/1/5.
- Point 1 of the operative part of the judgment.
- Marcin Chomiuk and Tomasz Rolewicz, ‘Refakturowanie usługi ubezpieczenia przedmiotu leasingu—wyrok Try-bunału Sprawiedliwości UE, C-224/11' (2013) 3 Przegląd Podatkowy 6; Agnieszka Wesołowska, ‘Glosa do wyroku TS z dnia 17 stycznia 2013 r., C-224/11' in System Informacji Prawnej ‘Lex’ Legal Information System ‘Lex’ (Wolters Kluwer, 2012).
- The purpose of this article is not to broadly analyse the issue of composite supplies in VAT. For more general analysis see eg Howard Liebman and Olivier Rousselle, ‘VAT Treatment of Composite Supplies' (2006) 2 International VAT Monitor 110.
- Amongst other cases: C-41/04 Levob Verzekeringen BV [2005] ECR I-09433; C-349/96 Card Protection Plan [1999] ECR I-00973; C-425/06 Part Service [2008] ECR I-00897; C-572/07 RLRE Tellmer Property [2009] ECR I-0498; C-34/99 Primback Ltd [2001] ECR I-0383; C-111/05 Aktiebolaget NN [2007] ECR I-02697; C-251/05 Talacre Beach Caravan Sales [2006] ECR I-06269.
- See further below, section 3.
- para 65 of the judgment and the case law referred to therein.
- Under which Member States shall exempt insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents.
- Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L347/1, hereinafter ‘VAT Directive’.
- The cases disused below are the cases which according to this author are of the greatest relevance in the context of BGŻ Leasing.
- Card Protection Plan (n 7).
- The plan comprised a bundle of services to the holders of credit cards, including protection against financial loss and inconvenience resulting from the loss or theft of the card, keys, passport or certain other items. In case of the occurrence of the covered risks, the customer would receive an indemnification payment for which CPP obtained block cover from an insurance company. Besides insurance, CPP provided various other services such as registration of credit cards, provision of luggage tags and medical warning cards.
- [2001] UKHL 4.
- Part Service (n 7).
- paras 48–54 of the judgment.
- Case C-255/02 Halifax [2006] ECR I-01609.
- para 42 of the judgment.
- For a comprehensive analysis of Part Service see eg Joep JP Swinkels, ‘Abuse of EU VAT Law in Part Service’ (2009) 1 International VAT Monitor 3; Jacek Kaute, ‘Wyrok Europejskiego Trybunału Sprawiedliwości z dnia 21 lutego 2008 r. w sprawie Ministero dell'Economia e delle Finanze, dawniej Ministero delle Finanze, przeciwko Part Service Srl, spółka w likwidacji, dawniej Italaservice Srl (C-425/06)' (2010) 2 Przeglqd Orzecznictwa Podatkowego 190.
- para 55 of the judgment.
- Resolution of the Supreme Administrative Court of 8 November 2010, I FPS 3/10, ONSAiWSA 2011/1/5. According to Polish procedural rules a resolution of seven judges issued by the Court in a specific case, whose purpose is to resolve an issue raising serious doubts, is binding in that specific case. Indirectly, the resolution is binding also in other cases since if in the future the Court would like to depart from the resolution, it should present the legal issue to be decided by the entire chamber of the Court or by a full bench (Arts 187 and 296 of Prawo o postępowaniu przed sądami administracyjnymi Dz.U. 2002/153/1270).
- Although it arose in a separate case, the circumstances resembled those of BGŻ Leasing.
- See eg the judgment of the Regional Administrative Court of Warsaw of 10 December 2009 (III SA/Wa 1022/09), the judgment of the Regional Administrative Court of Wrocław of 28 January 2010 (I SA/Wr 1637/09), and the judgment of the Regional Administrative Court of Warsaw of 24 March 2010 (III SA/Wa 1888/09). In the latter case the national court concluded that insurance and leasing services cannot be considered as one composite supply, according to objective criteria, since insurance services and leasing services are supplied by distinct providers.
- Amongst others: Card Protection Plan; Levob Verzekeringen BV; Part Service; RLRE Tellmer Property (n 7).
- para 36 of the judgment.
- para 42 of the judgment.
- paras 43–45 of the judgment.
- Case C-392/11 Field Fisher Waterhouse [2012] ECR I-0000.
- paras 46–47 of the judgment.
- para 48 of the judgment.
- para 49 of the judgment.
- See the following cases: Card Protection Plan (n 7); C-240/99 Skandia [2001] ECR I-01951; C-8/01 Taksatorringen [2003] ECR I-13711; C-472/03 Arthur Andersen [2005] ECR I-01719; C-13/06 Commission v Greece [2006] ECR I-11563; C-124/07 JCMBeheer [2008] ECR I-02101; C-242/08 Swiss Re [2009] ECR I-10099.
- Card Protection Plan (n 7).
- Skandia (n 33).
- para 66 of the judgment.
- para 63 of the judgment.
- para 68 of the judgment.
- Chomiuk and Rolewicz (n 5).
- Case C-16/93 Tolsma [1994] ECR I-00743.
- Judgment of the Regional Administrative Court of Warsaw, III SA/Wa 1022/09.
- The national court referred to the provisions of the leasing contract.
- See also case C-520/10 Lebara [2012] ECR I-0000. Compare, however, Commissioners of Customs and Excise v Red-row Group plc [1999] UKHL 4, in which the House of Lords ruled that a supplier can supply two different services to two persons within one transaction.
- Case C-496/11 Portugal Telecom [2012] ECR I-0000.
- The existence of such a direct link being created by the distributor of services between their provider and the end user was rejected by the Court of Justice in Lebara (n 43) due to the fact that the payment made by the end user to the distributor of items differed from the price for which the distributor acquired the items from their provider and the identity of the end user was not known when the distributor purchased items from the provider.
- See Field Fisher Waterhouse (n 29).
World Journal of VAT/GST Law
Volume 2, 2013 - Issue 2