Source: Minbuza.nl (Dutch)
The place of the investment management services provided for the benefit of Wellcome Trust Ltd by service providers from outside the Union is in dispute. It is not in dispute that WTL is a taxable person, and that WTL has used the services for business activity (and not for private purposes) and that WTL has not used the services for taxable services. The key question is whether WTL can be regarded as a “taxable person acting as such” within the meaning of Article 44 of the Directive. In the first instance, it has been decided that the services do not fall under Article 44 because the WTL formulation actually excludes the scope. In addition, it was initially established that the transposition of Article 44 in the UK, on the basis of which the place of service is deemed to be in the UK because WTL was a taxable person acting as an undertaking, not in accordance with the Directive and having to be interpreted in conformity. The HMRC appealed against this.
By its first and second questions, the referring court essentially asks whether the precise meaning of a “taxable person acting as such” in Article 44 of the Directive is the same as that contained in Wellcome Trust, C-155/94, and when this trust purchases its services from a person from outside the Union. In particular, it concerns the applicability of the relevant articles of the VAT Directive, on which the Court of Justice has not yet ruled.
1. Must Article 44 of Directive 2006/112 be interpreted as meaning that a taxable person who carries out a non-economic activity consisting in the purchase and sale of shares and other securities in the context of the management of the assets of a charitable trust should be regarded as ‘a taxable person acting as such’ when he purchases investment management services from a person from outside the Union solely for the purpose of this activity?
2. If the first question is answered in the negative and Articles 46 to 49 of the Directive do not apply, is Article 45 of the Directive applicable to the provision of services or is neither Article 44 nor Article 45 of the Directive of apply to the provision of services?
Cited (recent) case law: Wellcome Trust, C-155/94; Kollektivavtalsstiftelsen TRR Trygghetsrådet, C-291/07; Welmory, C-605/12, Claim AG Kokott; C-605/12; Srf consulterna, C-647/17; RCI Europe, C-37/08, Conclusion AG Trstenjak.