(Reference for a preliminary ruling– Common system of value added tax (VAT)– Directive 2006/112

25By its question, the national court asks, in essence, whether Article2(1)(c) of the VAT Directive must be interpreted as meaning that the control fees levied by a company incorporated under private law, tasked with the operation of private car parks, in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks must be regarded as consideration for a supply of services within the meaning of that provision and, as such, subject to VAT.

26In that regard, it must be borne in mind that, in accordance with Article2(1)(c) of the VAT Directive, which defines the scope of VAT, the supply of services for consideration within the territory of a Member State by a taxable person acting as such is to be subject to VAT.

27A supply of services is carried out ‘for consideration’, within the meaning of that provision, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the actual consideration for an identifiable service supplied to the recipient. That is the case if there is a direct link between the service supplied and the consideration received (judgment of 16September 2021, Balgarska natsionalna televizia, C‑21/20, EU:C:2021:743, paragraph31 and the case-law cited).

28In the present case, it must be noted that parking in a particular space in one of the car parks managed by Apcoa gives rise to a legal relationship between that company, as a service provider and manager of the car park concerned, and the motorist who used that space.

29In that regard, it is apparent from the documents available before the Court that, in the context of that legal relationship, the parties enjoy rights and assume obligations, in accordance with the general terms and conditions for use of the car parks concerned, which include, in particular, the provision of a parking space by Apcoa and the obligation on the motorist concerned to pay, in addition to the parking fees, where appropriate, in the event of failure to comply with those general terms and conditions, the amount corresponding to the control fees for parking in breach of the regulations, as indicated on the signs mentioned in paragraph11 of the present judgment.

30Accordingly, in that context, with regard to, on the one hand, the condition relating to the existence of reciprocal performance, within the meaning of the case-law cited in paragraph27 of the present judgment, it appears that that condition is fulfilled. The payment of parking fees and, where appropriate, of the amount corresponding to the control fees for parking in breach of the regulations constitutes consideration for the provision of a parking space.

31As regards, on the other hand, the condition that the remuneration received by the provider of the service must constitute the actual consideration for the service supplied to the recipient, within the meaning of the case-law cited in paragraph27 of the present judgment, it must be noted, as the Advocate General did in point51 of his Opinion, that the motorist who pays those control fees has had the benefit of a parking space or area and that the amount of those control fees is determined by the fact that the terms and conditions which the motorist concerned accepted are satisfied.

32Accordingly, the total amount of the sums which the motorists have undertaken to pay as consideration for the parking service provided by Apcoa, including, where appropriate, the control fees for parking in breach of the regulations, represents the terms and conditions under which they actually benefited from a parking space, even if they chose to make excessive use of it by exceeding the permitted parking time, by failing to provide proper evidence of their right to park or by parking in a reserved space, in a space which they were not entitled to use or in an obstructive manner, contrary to the general terms and conditions for use of the car parks concerned.

33It therefore appears that those control fees may have a direct link with the parking service and, as a result, that they may be regarded as forming an integral part of the total amount that those motorists have undertaken to pay to Apcoa by deciding to park their vehicle in one of the car parks managed by that company.

34Furthermore, the amount of those control fees corresponds to the remuneration for part of the costs associated with the supply of the services provided to them by Apcoa. As observed by the Advocate General in point61 of his Opinion, that amount necessarily takes into account the higher cost of operating car parks which is caused by parking that does not satisfy the normal terms and conditions for use of the service offered. That consideration also seeks to ensure that Apcoa receives contractual remuneration for the service carried out in circumstances attributable to the user, which are not such as to change the economic and commercial realities of their relationship.

35That finding is supported by the information provided by Apcoa in response to the written questions sent to it by the Court in the present proceedings, according to which, in essence, Apcoa confirmed that it obtains income from those control fees on a continuing basis. In that regard, it is apparent from the documents available before the Court that, for the tax years 2008 and 2009, the income received by Apcoa from those control fees amounted to approximately 35% of its turnover, that is to say, EUR10.4million in 2008 and EUR11million in 2009.

36In addition, in response to the written questions asked by the Court, Apcoa points out, in essence, that if, at the end of the parking period for which parking fees have been paid by the motorist concerned, the motorist in question does not take back his or her vehicle, that vehicle is still parked and subject to charging of the control fees for parking in breach of the regulations, which may be repeated, until that motorist comes to collect it.

37Such factors are capable of establishing the existence of a direct link between the service supplied and the control fees levied by Apcoa within the meaning of the case-law cited in paragraph27 of the present judgment.

38That conclusion is supported by the economic and commercial realities of the transaction concerned, subject to verification by the referring court. As regards the importance of contractual terms in a taxable transaction, the consideration of those realities is a fundamental criterion for the application of the common system of VAT (see, to that effect, judgment of 22November 2018, MEO– Serviços de Comunicações e Multimédia, C‑295/17, EU:C:2018:942, paragraph43 and the case-law cited).

39Apcoa and the European Commission submitted, however, that the amount paid by a motorist in respect of such control fees cannot be regarded as constituting the actual consideration for an identifiable service supplied to the recipient nor could it be understood as consideration for a supply of independent services, within the meaning of the case-law arising from the judgment of 18July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440, paragraphs21 to 35), since the provision of a parking space by Apcoa does not depend on the payment of those control fees by the motorist concerned.

40In that regard, it should be noted that, for VAT purposes every supply must normally be regarded as being distinct and independent, as follows from the second subparagraph of Article1(2) of the VAT Directive (judgments of 17January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph29 and the case-law cited, and of 10November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph68 and the case-law cited).

41The Court has, however, accepted that there is a direct link where two services are dependent on each other, that is to say, that one is made only on condition that the other is also made, and vice versa (judgment of 11March 2020, San Domenico Vetraria, C‑94/19, EU:C:2020:193, paragraph26 and the case-law cited).

42That is the case here, in so far as, as observed by the Advocate General in point66 of his Opinion, there is a link between the fact that Apcoa receives control fees for parking in breach of the regulations and the parking undertaken by the motorist concerned in specific circumstances determined by Apcoa which give rise to that increased fee. The need for monitoring of parking in breach of the regulations and, consequently, the imposition of such control fees would not exist if the service of providing a parking space was not supplied in advance.

43Furthermore, it should be noted that, in the case which gave rise to the judgment of 18July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440), the services in question had not been supplied. In the case in the main proceedings, the service of providing a parking space was carried out.

44Nor do the arguments relied on by Apcoa that, first, the amount that it charges in respect of the control fees for parking in breach of the regulations is predetermined and without a real economic link with the value of the parking service supplied and that, second, that amount constitutes a penalty under Danish law, preclude the finding reached in paragraph37 of the present judgment.

45As regards, in the first place, Apcoa’s argument that that amount is predetermined and has no real economic link with the value of the parking service supplied, it must be recalled that, according to settled case-law, with regard to the characterisation of a transaction as a transaction carried out for consideration within the meaning of Article2(1)(c) of the VAT Directive, the amount of the consideration, in particular the fact that it is equal to, greater or less than the costs which the taxable person incurred in providing the service, is irrelevant. That fact is not such as to affect the direct link between the services supplied and the consideration received (judgment of 11March 2020, San Domenico Vetraria, C‑94/19, EU:C:2020:193, paragraph29 and the case-law cited).

46With regard to, in the second place, the argument relied on by Apcoa that the amount which it charges in respect of the control fees for parking in breach of the regulations is classified, under national law, as a penalty, it is sufficient to recall, as the Advocate General did, in essence, in point42 of his Opinion, that, for the purposes of interpreting the provisions of the VAT Directive, the assessment of whether payment of a fee is made as consideration for a supply of services is a question of EU law which needs to be determined independently of the assessment made under national law (judgment of 22November 2018, MEO– Serviços de Comunicações e Multimédia, C‑295/17, EU:C:2018:942, paragraphs69 and 70).

47In the light of all the foregoing considerations, the answer to the question referred is that Article2(1)(c) of the VAT Directive must be interpreted as meaning that the control fees levied by a company incorporated under private law, tasked with the operation of private car parks, in the event of failure by the motorists to comply with the general terms and conditions for use of those car parks must be regarded as consideration for a supply of services within the meaning of that provision and, as such, subject to VAT.