Relevant articles in the EU VAT Directive
Supply of services – Place of supply of services
The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. However, if those services are provided to a fixed establishment of the taxable person located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the taxable person who receives such services has his permanent address or usually resides.
Obligations of Taxable Persons and Certain Non-Taxable Persons – Obligation to Pay – Persons liable for payment of VAT to the tax authorities
For the purposes of this Section, a taxable person who has a fixed establishment within the territory of the Member State where the tax is due shall be regarded as a taxable person who is not established within that Member State when the following conditions are met:
(a) he makes a taxable supply of goods or of services within the territory of that Member State;
(b) an establishment which the supplier has within the territory of that Member State does not intervene in that supply.
Relevant articles in the Implementing Regulation 282/2011
- For the application of Article 44 of Directive 2006/112/EC, a ‘fixed establishment’ shall be any establishment, other than the place of establishment of a business referred to in Article 10 of this Regu lation, characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to receive and use the services supplied to it for its own
- For the application of the following Articles, a ‘fixed establishment’ shall be any establishment, other than the place of establishment of a business referred to in Article 10 of this Regulation, characterised by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to provide the services which it supplies:
- Article 45 of Directive 2006/112/EC;
- from 1 January 2013, the second subparagraph of Article 56(2) of Directive 2006/112/EC;
- until 31 December 2014, Article 58 of Directive 2006/112/EC;
- Article 192a of Directive 2006/112/EC.
- The fact of having a VAT identification number shall not in itself be sufficient to consider that a taxable person has a fixed establishment.
ECJ Cases – Decided
- C-168/84 (Berkholz) – First ECJ case on Fixed Establishments
- C-231/94 (Faaborg-Gelting-Linien A/S): Restaurant transactions on board ship – Place of taxable transactions.
- C-190/95 (ARO Lease) – Place where the supplier has established its business/Fixed establishments
- C-260/95 (DFDS) – Intermediary of a tour operator acting as Fixed Establishment
- C-390/96 (Lease Plan Luxembourg SA) – Impact of Car Leasing services on determination of Fixed Establishments
- C-210/04 (FCE Bank) – A fixed establishment is not a legal entity distinct from the business itself
- C-73/06 (Planzer Luxembourg Sarl) – Refund of VAT to taxable persons not established inside the country, comcept of ”Fixed Establishment”
- C-318/11 (Daimler AG), C-319/11 (Widex A/S) – No refusal of Eighth Directive refund to businesses without local turnover (Fixed Establishment)
- C-323/12 (E. ON Global Commodities SE) – Judgment: A tax representative did not constitute an Fixed Establishment
- C-605/12 (Welmory) – Fixed establishment: sufficient degree of sustainability and a suitable structure to be able to purchase services
- C-419/14 (WebMindLicenses Kft) – When are Services supplied from a Fixed Establishment
- C‑165/17 (Morgan Stanley) – Deduction of input VAT by fixed establishment and application of pro rata
- C-547/18 (Dong Yang) – Fixed Establishment for VAT
- C-931/19 (Titanium) – No fixed establishment if the owner of the property does not have his own staff
- C-333/20 (Berlin Chemie A. Menarini SRL) – No Fixed establishment via affiliate rendering services on an exclusive basis
- C-232/22 (Cabot Plastics Belgium) – Toll manufacturing with ancillary services does not lead to Fixed Establishment
ECJ Cases – Pending
- ECJ C-533/22 (Adient) – AG Opinion – Fixed establishment solely on the basis that the two companies belong to the same group?
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