ECJ C-282/22 (Dyrektor Krajowej lnformacji Skarbowej) – Questions – Composite services provided at charging points for users of electric vehicles

Keywords : VAT directive, supply of goods, services, electric vehicles

Subject : Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT Directive)

Articles in the EU VAT Directive

Articles 14(1) and 24(1) of the EU VAT Directive 2006/112/EC.

Article 14 (Taxable transaction – Supply of goods)
1. ‘Supply of goods’ shall mean the transfer of the right to dispose of tangible property as owner.

Article 24 (Taxable transaction – Supply of services)
1. ‘Supply of services’ shall mean any transaction which does not constitute a supply of goods.

Facts

Company P. established in W. (the applicant) requested the Director of the National Tax Information Office, Poland (Dyrektor) in the context of preliminary consultations a preliminary decision concerning value added tax.
The applicant indicated that it intends to start an activity in the field of so-called generally accessible charging stations for electric vehicles. Under this activity, the company will possibly install charging stations and make them available for a fee. Users of electric vehicles will be able to charge their vehicles there at stations with different charging standards and speeds.
According to the company, all the services performed by it for the benefit of the users of the vehicle charging stations should be considered to constitute a single taxable activity, namely a service provided for consideration within the meaning of Article 8(1) u.p.t.u.
The Dyrektor found that the applicant’s position was incorrect.

Considerations of the Polish court to ask prelimiary questions:

According to the case-law of the Court, each transaction must normally be regarded as distinct and independent, but the transaction consisting in economic terms of a supply must not be artificially disassembled, otherwise the proper functioning of the VAT system would be affected. The first three components of the company’s performance are indispensable for charging the vehicle, as they are closely linked. Consequently, the supply of electrical energy and the provision of charging equipment, including the necessary technical support, must be regarded as a single transaction for VAT purposes in the circumstances of the present case.

The activities that make up the fourth part (making available a specialized platform, a specialized website or a specialized application for reserving a specific connector, consulting the overview of previous transactions and payments, and using a so-called e-wallet) are no longer closely related to the charging of a vehicle, although in carrying out this operation, as ancillary activities, they can undoubtedly constitute a major facilitation for customers.

In order to determine whether the said complex transaction is to be classified as a supply of goods or as a service, it is necessary to determine its predominant elements. The question to be answered is what, for the average consumer, is the predominant element of the contested act.

In view of the importance of the issue at issue not only for national charging station operators but also for the Union market as a whole (including as regards the determination of the place of performance of those acts), the referring court considers that the is important in order to ascertain how the contested supply must be classified in the light of the VAT Directive, namely as a supply of goods within the meaning of Article 14(1) of the VAT Directive or as a service in the meaning of Article 24(1) of this Directive.

Questions

Are the activities provided at charging points for users of electric vehicles, consisting of:

a) making charging equipment available (including integrating the charger used with the control system of the vehicle concerned),

b) supplying electrical energy with the required parameters for the batteries of electric vehicles;

c) providing the necessary technical support for the vehicle users,

d) making a specialized platform, a specialized website or a specialized application available to users for reserving a specific connector, consulting the overview of previous transactions and payments, and using a so-called e-wallet to to pay amounts due for the different charging sessions

– to be regarded supplies of goods within the meaning of Article 14(1) of the EU VAT Directive or services within the meaning of Article 24(1) of this Directive?

Source