- See Advocate General Mancini in Case C-168/84 Berkholz ECLI:EU:C:1985:299. In Case C-73/06 Planzer ECLI:EU:C:2007:397, the Court held that the determination of a company's place of business requires a series of factors to be taken into consideration, foremost amongst which are its registered office, the place of its central administration, the place where its directors meet and the place, usually identical, where the general policy of that company is determined. Other factors, such as the place of residence of the main directors, the place where general meetings are held, the place where administrative and accounting documents are kept, and the place where the company's financial, and particularly banking, transactions mainly take place, may also need to be taken into account. See also Article 10 of the Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (2011) OJ L 77/1.
- Case C-605/12 Welmory ECLI:EU:C:2014:2298.
- Case C-168/84 Berkholz (n 1) para 17; Case C-231/94 Faaborg-Gelting Linien ECLI:EU:C:1996:184, para 16; and Case C-190/95 ARO Lease ECLI:EU:C:1997:374, para 15.
- ARO Lease (n 2) para 19.
- Case C-260/95 DFDS ECLI:EU:C:1997:77.
- Case C-452/03 RAL ECLI:EU:C:2005:65.
- Case C-230/87 Naturally Yours ECLI:EU:C:1988:508.
- Case C-494/12 Dixons ECLI:EU:C:2013:758.
- See, inter alia, judgment in Case C-316/10 Danske Svineproducenter ECLI:EU:C:2011:863, paras 32 and 34 and the case law cited.
- The Court added to this that, even though that regulation was not yet in force at the material time, it should none the less be taken into account, clearly neglecting recital 2 to the Implementing Regulation providing: ‘These implementing measures are legally binding only from the date of the entry into force of this Regulation and are without prejudice to the validity of the legislation and interpretation previously adopted by the Member States.’
- See, inter alia, judgments in Berkholz (n 1) para 17; Faaborg-Gelting Linien (n 2) para 16; and ARO Lease (n 2) para 15.
- See also the judgment in Planzer (n 1), para 54 and the case law cited, which directly inspired the wording of Article 11.
- According to the Court, the object of the provisions determining the point of reference for tax purposes of supplies of services is to avoid, first, conflicts of jurisdiction which may result in double taxation and, second, non-taxation (see, to that effect, judgment in Case C-218/10 ADV Allround ECLI:EU:C:2012:35, para 27 and the case law cited).
- In this context see also the Planzer case (n 1) in which the Court held that ‘a fixed installation used by the undertaking only for preparatory or auxiliary activities, such as recruitment of staff or purchase of the technical means needed for carrying out the undertaking's tasks, does not constitute a fixed establishment’.
- However, based on Case C-444/10 Schriever ECLI:EU:C:2011:724, in which the Court held that the duration of a lease and the procedure for terminating it do not decisively support the intention to terminate a business, raises doubts regarding the statement of the AG that the permanence needs to be proven, inter alia, by service and rental contracts which cannot be terminated on short notice.
- Which the AG seems to suggest when she noted that if, personnel and equipment are identically used by two taxable persons, one may wonder whether there is a supply of a service to a different taxable person.
- Presumably on a Centralan approach, see Case C-63/04 Centralan ECLI:EU:C:2005:773, a single good can be supplied by several parties.
World Journal of VAT/GST Law
Volume 3, 2014 - Issue 3
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