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Good things to remember – how to shed some light on the FE concept

Contribution by Maria Cambien

If you are a VAT practitioner, sooner or later you will have to look at or even struggle with the FE (fixed establishment) concept. You can have it the more prudent way – by making once a principle-based assessment -, or the rough way – by having to cope with a tax controversy.

Either way, especially when there is no alternative, just “keep calm …” and remember the good things: there are publicly available great materials analyzing the FE concept and deep insights already revealed in the VAT jurisprudence, VAT Committee’s documents, VAT Expert Group (VEG) paper works, various articles or books; also, soon to be clarified questions in relevant pending CJEU cases.

If you’re one of those enjoying making researches yourself or you simply like to read great VAT materials, here are few tips (for some of the documents CIRCA access is needed; obviously, the list is not exhaustive; jut some personal favorites):

  • c.1(2015) 3987442 – VAT Expert Group VEG No 48 – here
  • c.1(2015)2177802 – EN – WP no 857 – Clarifications on the concept of fixed establishment – here
  • c.1(2014)88957 – EN – WP no 791 – Clarifications of the concept of fixed establishment – here
  • c.1(2013)167581 – EN – WP no 761 – Concept of fixed establishment and its definition – here
  • VAT and fixed establishments mysteries solved? M.L. Schippers & J.M.B. Boender – here
  • Case 168/84, Berkholz – here
  • Case C-260/95, DFDS – here
  • Case C-190/95, ARO Lease – here
  • Case C-390/96, Lease Plan – here
  • Case C-605/12, Welmory – here
  • Case C‑547/18, Dong Yang (AG opinion available, CJEU decision pending) – here  
  • A recent Austrian CJEU referral on VAT and fixed establishment (not too much info yet available) – Source: Robert Praetzler – here