Briefing document and Podcast: ECJ Cases on the Commissionaire fiction

Briefing Document: VAT Treatment of Fuel Cards and EV Charging Transactions

This briefing document reviews key themes and legal interpretations from recent EU VAT law sources concerning fuel cards and electric vehicle (EV) charging, highlighting the core principles applied by the Court of Justice of the European Union (CJEU) and the nuances in their application to evolving business models.

I. Core Principles of EU VAT Law

Several fundamental principles underpin the CJEU’s analysis of VAT treatment:

Taxable Transactions: VAT applies to “the supply of goods or services for consideration within the territory of a Member State by a taxable person acting as such” (Directive 2006/112/EC, Article 2(1)).
“Supply of Goods”: This is defined as “the transfer of the right to dispose of tangible property as owner” (Directive 2006/112/EC, Article 14(1)). The CJEU consistently interprets this as the “power to actually dispose of it as if he were its owner,” rather than merely legal ownership under national law (“CURIA – Documents”: C-2019:412, para 27). This is an “objective concept and that it applies without regard to the purpose or results of the transactions concerned” (C-2019:412, para 28).
“Supply of Services”: Any transaction that “does not constitute a supply of goods” (Directive 2006/112/EC, Article 24(1)).
Economic Reality: The CJEU prioritises “the economic reality which is, in principle, reflected in the contractual agreements” over the legal form of a transaction for VAT purposes (“CURIA – Documents”: C-2024:896, para 30).
Equal Treatment: A fundamental principle ensuring consistent VAT treatment for taxable persons, irrespective of their status (e.g., banking vs. non-banking institutions providing credit) (“CURIA – Documents”: C-2019:412, para 45-46).
Exemption for Credit Granting: Article 135(1)(b) of Directive 2006/112/EC exempts “the granting and the negotiation of credit and the management of credit by the person granting it.” This exemption is interpreted broadly and is not confined to traditional financial institutions (“CURIA – Documents”: C-2019:412, para 44).
Complex Transactions (Single vs. Distinct Supplies): While transactions are typically distinct, a bundle of elements forming “a single, indivisible economic supply” should not be artificially split. An “ancillary supply” serves as a “means of better enjoying the principal supply” and shares its tax treatment (“CURIA – Documents”: C-2024:896, para 47-48).

II. Fuel Card Transactions: “Credit Granting” vs. “Supply of Goods”

The CJEU has consistently ruled that in many fuel card arrangements, the transaction is a supply of financial services (credit granting), not a supply of goods (fuel).

Auto Lease Holland (C-185/01):Facts: A Dutch leasing company (Auto Lease) provided fuel management agreements allowing lessees to refuel using credit cards in Auto Lease’s name, with Auto Lease advancing costs. Auto Lease sought VAT refunds on fuel purchased in Germany.
- Ruling: The Court found no “supply of fuel” by Auto Lease to the lessees. The key factor was that “the lessee is empowered to dispose of the fuel as if he were the owner of that property. He obtains the fuel directly at filling stations and Auto Lease does not at any time have the right to decide in what way the fuel must be used or to what end” (“CURIA – Documents”: C-2003:73, para 34). Auto Lease merely financed the purchase, acting as a “supplier of credit” (“CURIA – Documents”: C-2003:73, para 36).
Vega International Car Transport and Logistic (C-235/18):Facts: An Austrian parent company (Vega International) provided fuel cards to its subsidiaries (e.g., Vega Poland). The parent received invoices from fuel suppliers and passed on the costs plus a 2% surcharge to its subsidiaries. Vega International sought VAT reimbursement.
- Ruling:No Supply of Goods: Aligning with Auto Lease Holland, the Court reiterated that “Vega International does not dispose of the fuel… as if it were the owner. That fuel is purchased by Vega Poland directly from the suppliers and at its sole discretion” (“CURIA – Documents”: C-2019:412, para 36). Vega International played “no more than an intermediary role in the purchase transaction” (“CURIA – Documents”: C-2019:412, para 38).
- Supply of Exempt Financial Service: Because Vega International “appli[ed] that surcharge of 2% to Vega Poland, Vega International receives a payment for the service provided to its Polish subsidiary… by financing in advance the purchase of fuel and therefore acts, for that purpose, in the same way as an ordinary financial or credit institution” (“CURIA – Documents”: C-2019:412, para 48). This service was therefore classified as “granting credit” and “eligible for the exemption provided for in Article 135(1)(b) of Directive 2006/112/EC” (“CURIA – Documents”: C-2019:412, para 50).
- Implication: Vega International solidifies that if the fuel card provider facilitates and finances the purchase, particularly with a surcharge, it is providing an exempt financial service. The “Working Paper No 1046” notes that the Vega International business model is outside the generally accepted fuel card business models.

III. Electric Vehicle Charging: “Supply of Goods” and “Commissionaire Fiction”

The Digital Charging Solutions judgment introduces important distinctions for EV charging, applying the “supply of goods” concept and the “commissionaire fiction.”

Digital Charging Solutions GmbH (C-60/23):Facts: Digital Charging Solutions (DCS), a German company, provided EV users access to a network of charging points operated by other companies. DCS invoiced users monthly for electricity consumed and a separate fixed fee for network access and services.
First Question (Supply of Goods): The Court ruled that “the supply of electricity for the purposes of charging an electric vehicle at a charging point… constitutes a supply of goods” (“CURIA – Documents”: C-2024:896, para 23), as electricity is treated as tangible property under Article 15(1) of Directive 2006/112/EC.
Second Question (Commissionaire Fiction): The Court determined that the electricity is deemed supplied “first, by the operator of that network to the company offering access thereto and, second, by that company to that user, even if the latter chooses the quantity, time and place of that charging as well as the manner of use of the electricity.” This applies when DCS “acts in its own name but on behalf of the user under a commission contract within the meaning of Article 14(2)(c) of that directive” (“CURIA – Documents”: C-2024:896, para 60).
Distinction from Fuel Card Cases: The Court explicitly distinguished this case from Auto Lease Holland and Vega International because of “the absence of a credit mechanism enabling electricity purchases to be pre-financed” and the lack of a surcharge on electricity consumption. Instead, DCS levied “a fixed fee, independent of the quantity of electricity supplied to the user or the number of charging sessions” (“CURIA – Documents”: C-2024:896, para 34). This structure pointed towards a “commission contract.”
Complex Transaction Analysis: The Court noted that if the fixed fee for access and services is “separate and payable on a monthly basis, irrespective of any supply of electricity,” these services are likely “distinct and independent of the supply of electricity properly speaking” (“CURIA – Documents”: C-2024:896, para 54).

IV. The “Commissionaire Fiction” (Article 14(2)(c) and Article 28)

The “commissionaire fiction” is a crucial legal construct in EU VAT law.

Definition: “Where a taxable person acting in his own name but on behalf of another person takes part in a supply of services, he shall be deemed to have received and supplied those services himself” (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 1). This “creates a legal fiction of two identical supplies of goods made consecutively, which fall within the scope of VAT” (“CURIA – Documents”: C-2024:896, para 39).
Conditions for Application: Article 14(2)(c) of Directive 2006/112/EC requires:

1. An agency where the commission agent acts in their own name but on behalf of a principal.
2. The supplies of goods acquired by the commission agent and those sold/transferred to the principal must be identical (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 2).

- Debate on “Identical Supplies”: Cause or Effect?Advocate-General Kokott / Henfling view: Identical supplies are an effect of applying the fiction, meaning the fiction results in deemed identical supplies (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 2).
- Advocate-General Ćapeta / ITH Comercial view: Identical supplies are a condition or cause that must be met for the fiction to apply (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 2).
- Author’s Argument: The author of “Commissionaire Fiction in EU VAT Law: Cause and Effect” argues that identical supplies should be viewed as a consequence of the fiction, not a condition. Imposing identical supplies as a strict condition could prevent the fiction’s application if the commissionaire adds elements (e.g., transportation), potentially creating “inequalities” compared to direct buy-sell models (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 2).
Ancillary Elements: The author contends that the fiction should apply to elements added by the commissionaire in their own name but on behalf of the principal, even if not merely ancillary. However, elements added “in his own name and on his own behalf when these are not merely ancillary” should not necessarily be included in the fictional supply (“Commissionaire Fiction in EU VAT Law: Cause and Effect,” Section 3).

V. Business Models for Fuel Cards and EV Charging Implications

The “Working Paper No 1046” from the European Commission’s VAT Committee summarises two main fuel card business models:

Buy/Sell Model: The Fuel Card Issuer (FCI) ostensibly buys fuel from the Mineral Oil Company (MOC) and sells to the Fuel Card User (FCU), but physical delivery is direct from MOC to FCU.
- VAT Committee’s View: Applying Vega International reasoning, the FCI typically “does not seem to dispose of the fuel as if it were the owner at any time.” Therefore, it “in principle constitutes a supply of financial services consisting in financing of the purchase of fuel” (Working Paper No 1046, Section 4).
Commissionaire Model: The FCU appoints the FCI as a buying agent (commissionaire). The FCI acts in its own name but on behalf of the FCU, negotiating terms and purchasing fuel from the MOC for the FCU.
- VAT Committee’s View: Due to Article 14(2)(c) (commissionaire fiction), the supplies to and from the commissionaire “qualify as supplies of goods (fuel) and not services” (Working Paper No 1046, Section 4). This creates two taxable supplies: MOC to FCI, and FCI to FCU.

There is a recognised “need to align the approach for fuel cards with the approach towards e-mobility” as “it will be common to have dual cards, covering fuel and EV charging” (Working Paper No 1046, Section 3). This alignment aims for “legal certainty” and a “common position for the VAT treatment… which reflects the commercial reality” (“VAT: Fuel, EV Charging, and Commissionaire Fiction,” Q8)

Briefing document and Podcast: ECJ Cases on the Commissionaire fiction

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