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

9Apcoa, a private company incorporated under Danish law, undertakes as its main activity the operation of car parks on private land under contracts with the site owners.

10As part of its activity, Apcoa determines the general terms and conditions for use of the car parks that it manages, such as those relating to pricing and maximum parking time.

11A sign at the entrance to each of those car parks states, first, that ‘the [parking] area is operated in accordance with the rules of private law’ and, second, that ‘control fees of 510 [Danish krone (DKK)]’ (approximately EUR70) or ‘DKK510 per day may be levied for infringement of the regulations’. Those amounts reflected the control fees applied by Apcoa in the tax years concerned, that is to say, 2008 and 2009.

12It is common ground that Apcoa carries out an economic activity within the meaning of the second subparagraph of Article9(1) of the VAT Directive and is subject to VAT in respect of the payment of parking fees made in accordance with the rules for that payment. However, Apcoa denies that it is liable for VAT in respect of the control fees.

13On 25October 2011, Apcoa applied to SKAT (the Danish tax authority) for a refund of the VAT paid in respect of those control fees during the period from 1September 2008 to 31December 2009. The amount was assessed at DKK25089292 (approximately EUR3370000).

14By decision of 12January 2012, the tax authority refused that application on the ground that, under the applicable national provisions, as set out in paragraphs5 to 8 of the present judgment, those control fees were regarded, under Danish law, as subject to VAT.

15That refusal, upheld by the Landsskatteretten (National Tax Tribunal, Denmark), was the subject of an appeal brought by Apcoa before the Retten i Kolding (Kolding District Court, Denmark). By judgment of 23January 2017, that court dismissed that appeal, holding, in essence, that the control fees applied by Apcoa, which it classified as ‘increased parking charges’, levied in the event of failure by a motorist to comply with the general terms and conditions for use of the car parks managed by Apcoa, constituted consideration for the supply of the parking service provided to that motorist.

16Apcoa appealed against that judgment before the Vestre Landsret (High Court of Western Denmark, Denmark). By judgment of 10September 2018, that court dismissed that appeal on the ground that, in the present case, there was a direct correlation between the parking service and the payment of the control fees for parking in breach of the regulations on private land. Thus, that amount had to be regarded as consideration for a supply of services within the meaning of Paragraph4(1) of the Law on VAT.

17The judgment of the Vestre Landsret (High Court of Western Denmark) was the subject of an appeal before the Højesteret (Supreme Court, Denmark), the referring court, in the context of which Apcoa submitted, in essence, that the amount that it invoices in respect of those control fees, in the event of infringement by a motorist of the general terms and conditions for use of the car parks it manages, does not constitute consideration for retaining the right to park on which that motorist could rely in return for payment of parking charges. That amount, in so far as (i) it is predetermined, without a real economic link to the value of the parking service provided, and (ii) it constitutes, under Danish law, a penalty for infringement of those general terms and conditions for use, cannot be regarded as falling within the scope of Article2(1)(c) of the VAT Directive, read in conjunction with Paragraph4(1) of the Law on VAT.

18The Ministry of Taxation contends that, since, as consideration for the control fees for parking in breach of the regulations, the motorist concerned is effectively provided with a parking space, there is a direct link between the parking service and those control fees. Furthermore, that ministry notes that those control fees constitute a significant part of Apcoa’s turnover, since the amounts levied in respect of those control fees represented, for instance, 34% of its turnover in the tax year 2009.

19The referring court points out, first of all, that the present reference for a preliminary ruling concerns only the question of whether the control fees levied by Apcoa in the event of failure by the motorists to comply with the general terms and conditions for use of the car parks managed by that company are subject to VAT. Furthermore, that court states, first, that it is common ground that the parking itself is subject to VAT and, second, that the dispute in the main proceedings does not concern the charging of VAT on the sums distributed between Apcoa and the owner of the parking area concerned.

20That said, that court sets out the 13 types of situations in which Apcoa levies control fees for parking in breach of the regulations, namely:

‘1.Where the fee paid is insufficient.

2.Where no currently valid parking ticket is visible in the windscreen.

3.Where the ticket cannot be checked, for example where the parking ticket is not displayed correctly.

Situations 1 to 3 apply to paid parking.

4.Where there is no valid parking ticket, for example in the case of a residents’ parking zone where permission is required to use specific parking spaces.

5.Parking in spaces reserved for persons with reduced mobility. This ground for charging of control fees for parking in breach of the regulations applies only where there is a sign indicating parking for persons with reduced mobility, irrespective of whether parking is free or paid. To be able to park in those spaces, the motorist must have displayed proof of reduced mobility in the windscreen of his or her vehicle.

6.Parking outside designated parking spaces. This ground for charges of the control fees for parking in breach of the regulations applies to all types of parking spaces where there is a sign indicating that vehicles should be parked inside the spaces concerned.

7.Where parking is prohibited. This ground for charging of control fees for parking in breach of the regulations applies, for example, where a vehicle is parked on a fire emergency access route.

8.Reserved parking areas. This ground for charging of the control fees for parking in breach of the regulations applies to all types of parking spaces where vehicles must be parked in specific spaces.

9.Where no parking disc is visible.

10.Where a parking disc is incorrectly set or where the parking time indicated has been exceeded.

11.Where the parking disc is illegible. This ground for charging of control fees for parking in breach of the regulations applies, for example, where the needles on the parking disc have become detached or where there is an error in an electronic disc.

12.Where there is more than one parking disc. This ground for charging of control fees for parking in breach of the regulations applies where the motorist concerned has displayed several parking discs in the windscreen in order to extend the parking period.

Situations 9 to 12 apply where parking is free for a limited period but a parking disc is required as proof of the time the vehicle was parked.

13.Other. This ground for charging of control fees for parking in breach of the regulations applies to infringement of general parking regulations which do not correspond to any of the above 12 situations. It applies, for example, where parking clearly obstructs traffic. If this ground is used to justify charging of control fees, it shall be supplemented by a written description of the infringement.’

21The referring court then recalls the main findings from the case-law of the Court of Justice on the supply of services subject to VAT as regards, on the one hand, the terms and conditions relating to the existence of ‘reciprocal performance’ establishing a ‘legal relationship’ reflecting, as the case may be, a ‘direct link’ between the service supplied and the consideration received and, on the other hand, the condition that the sums paid constitute ‘actual consideration for an identifiable service’. It refers, in particular, to the judgments of 18July 2007, Société thermale d’Eugénie-les-Bains (C‑277/05, EU:C:2007:440), and of 22November 2018, MEO– Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942), stating that, in the context of the main proceedings, Apcoa relies on the first of those judgments while the Ministry of Taxation refers, in particular, to the latter judgment.

22Lastly, the referring court notes that, traditionally, in Denmark, sums levied by private-law management companies, such as Apcoa, in respect of control fees for parking in breach of the regulations have always been regarded as subject to VAT. In that regard, that court refers, in particular, to its case-law resulting from a judgment of 12April 1996, in which it ruled on the nature, for VAT purposes, of such control fees, which it had classified as ‘increased parking fees’. It is apparent from that judgment that such ‘increased fees’, levied on the basis of a quasi-contractual relationship, had to be regarded as consideration for a supply of services and, therefore, subject to VAT, notwithstanding the fact that those ‘increased fees’ were fixed at a predetermined and substantial rate compared to that corresponding to the ordinary parking fee itself due to the fact that those ‘increased fees’ were aimed at preventing parking in breach of the regulations.

23It is therefore possible to take the view that the obligation on the motorists who have infringed the general terms and conditions for use of the car parks concerned to pay control fees for parking in breach of the regulations is based on a quasi-contractual relationship and that there is therefore a ‘legal relationship’ within the meaning of the case-law arising from the judgment of 3March 1994, Tolsma (C‑16/93, EU:C:1994:80, paragraphs13 and 14) between Apcoa and those motorists. However, doubts remain as to whether those control fees may legitimately be regarded as constituting payment for a supply of services subject to VAT, supported by the fact that, according to the information available to that court, the tax authorities of other Member States of the European Union, such as the Federal Republic of Germany and the Kingdom of Sweden, do not subject such control fees to VAT.

24In those circumstances, the Højesteret (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article2(1)(c) of [the VAT Directive] be interpreted as meaning that control fees for infringement of regulations on parking on private property constitute consideration for a service supplied and that there is therefore a transaction subject to VAT?’