BREAKING: Decision in ECJ C-232/22 (Cabot Plastics Belgium) on existence Fixed Establishment will be released on June 29, 2023

Source: Ine Lejeune, Attorney

On June 29, 2023, the ECJ will release its judgment in the case C-232/22 (Cabot Plastics Belgium). The core of the case is whether a Toll Manufacturer constitues a Fixed Establishment for its Principal.

Facts

A writ of execution has been issued against SA C PLASTICS BELGIUM (CPB) for the recovery of EUR 10,609,844.08 and EUR 1,060,980, respectively for VAT and a fine.
The writ relates to services invoiced by CPB to C SWITZERLAND GMBH (CSG) without VAT being charged. Following an audit, tax authorities deemed that CSG had a permanent establishment in Belgium and that the disputed services provided in the years 2014-2016 should be deemed to be located in Belgium.
CPB brought the dispute before the court and the judge partially annulled the writ of execution in relation to the fine.
The question arises whether a taxable person has an adequate structure constituting a permanent establishment if the resources belong to their service provider, who is part of the same group. It is necessary to determine whether the staff of the service provider and the instructions of the recipient of the service can be regarded as proprietary to that recipient.

Questions

The text raises questions regarding the interpretation of Article 44 of Council Directive 2006/112/EC and Article 11 of Regulation (EU) No 282/[2011] of the Council of 15 March 2011 in relation to whether a taxable person established outside the European Union should be regarded as having a permanent establishment in a Member State if they receive services from a taxable person established in that Member State who is part of the same group and provides exclusive human and technical resources for the benefit of the taxpayer.
The text also questions whether a taxable person has a permanent establishment in the Member State of their supplier if the latter provides additional services that contribute to the realization of sales concluded by the taxpayer outside the European Union but which give rise to taxable supplies of goods in the said Member State.

See also