Case C‑596/20

75.However, where the conflict does not relate to a divergent interpretation of EU law, but to a divergent assessment of the facts (for example, the existence of an abusive practice), the path outlined above does not lead any further. This is because it is for the national courts to apply EU law to the specific facts of the case. Their decisions are not binding on the tax authorities of the other Member States, with the result that the risk of double taxation persists.

76.Such double taxation is contrary to the objectives of the VAT Directive (see point68 above). It is true that the Court has ruled, in the context of income tax law, that, in the absence of harmonisation at EU level, the Member States are not obliged to adapt their own tax systems to the different tax systems of other Member States, in order to eliminate double taxation.(25) However, that concerns double taxation due to non-harmonised income tax law and follows from the Member States’ remaining legislative competence in that respect. That argument does not apply to VAT law.

77.Moreover, double taxation based on EU law (in casu, the VAT Directive) affects the fundamental rights of the taxable person (see Articles15, 16 and 17 of the Charter of Fundamental Rights of the European Union) in the implementation of EU law.(26) Furthermore, double taxation in respect of VAT for cross-border supplies of goods and services would impair the free movement of goods and the freedom to provide services.

78.The double taxation, which is thus contrary to the internal market, could ultimately be avoided only if, in that special situation– double taxation by two Member States due to a conflict of qualification under VAT law in a cross-border case– the Court itself were to establish, on an exceptional basis, how the facts of the case are to be assessed, that is to say, in the present case, therefore, whether there is abuse.

79.As the only authority that can take a decision which is binding on the Member States involved and can thus effectively prevent double taxation, the Court previously made its own de facto assessment of the facts in a similar situation. For example, the Auto Lease Holland case was based on a different assessment of the facts in two Member States, as the referring court expressly emphasised in the proceedings in that case.(27) Nevertheless, the Court answered the question referred and ruled that ‘Article5(1) of the Sixth Directive is to be interpreted as meaning that there is not a supply of fuel by the lessor of a vehicle to the lessee where the lessee fills up at filling stations the vehicle which is the subject-matter of a leasing contract, even if the vehicle is filled up in the name and at the expense of that lessor’.(28) This amounted to nothing more than the Court’s assessment of the facts as requested by the referring court.

80.However, in order to take into account the fact that the assessment of the facts is, in principle, the task of the national court and that the Member States have possibilities to exchange information by virtue of Regulation No904/2010 and to reach agreement by virtue of the VAT Committee (Article398 of the VAT Directive), the Court could make the answer to such questions referred for a preliminary ruling subject to the condition that, as a general rule, those other possibilities have been exhausted beforehand.

VI.Conclusion

81.I therefore propose that the Court answer the questions referred by the Fővárosi Törvényszék (Budapest High Court, Hungary) as follows:

1.The recipient of the supply who is relevant for the purposes of determining the place of supply is to be determined from the perspective of the supplier on the basis of the underlying legal relationship, which establishes who must bear the expense for the supply received. An allegation of abuse of rights relating only to the recipient of the supply and a third party is irrelevant to the determination of the recipient of the supply and the place of supply.

2.Having regard to the Charter of Fundamental Rights of the European Union and the fundamental freedoms, the principle of neutrality of Council Directive 2006/112/EC of 28November on the common system of value added tax and Council Regulation (EU) No904/2010 of 7October 2010 on administrative cooperation and combating fraud in the field of value added tax preclude double taxation by several Member States in respect of VAT for one and the same transaction. If such double taxation is based on a different assessment of the facts and, the Member States do not agree on a solution, the national court may or must ask the Court for such a solution.

1Original language: German.

2In this regard, see, inter alia, judgments of 20October 1993, Balocchi (C‑10/92, EU:C:1993:846, paragraph25); of 21February 2008, Netto Supermarkt (C‑271/06, EU:C:2008:105, paragraph21); and of 23November 2017, Di Maura (C‑246/16, EU:C:2017:887, paragraph23).

3‘the VAT Directive’.

4As last amended, at that point in time, by Council Directive 2009/69/EC of 25June 2009 (OJ 2009 L175, p.12).

5As last amended, at that point in time, by Council Directive 2010/88/EU of 7December 2010 (OJ 2010 L326, p.1).

6Council Directive 2008/8/EC of 12February 2008 amending Directive 2006/112/EC as regards the place of supply of services (OJ 2008 L44. p.11).

7Council Regulation (EU) No904/2010 of 7October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ 2010 L268, p.1).

8Judgment of 17December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832).

9Judgments of 21February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph98); of 17December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph52); and of 22November 2017, Cussens and Others (C‑251/16, EU:C:2017:881, paragraph46).

10Judgments of 26January 2012, ADV Allround (C‑218/10, EU:C:2012:35, paragraph27 and the case‑law cited), and of 16October 2014, Welmory (C‑605/12, EU:C:2014:2298, paragraph42). See also, to that effect, judgment of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph42).

11Judgment of 16September 2021, Balgarska natsionalna televizia (C‑21/20, EU:C:2021:743, paragraphs31). See, to that effect, judgments of 22June 2016, Český rozhlas (C‑11/15, EU:C:2016:470, paragraphs21 and 22), and of 22November 2018, MEO– Serviços de Comunicações e Multimédia (C‑295/17, EU:C:2018:942, paragraph39).

12See, to that effect, judgments of 13June 2013, Promociones y Construcciones BJ 200 (C‑125/12, EU:C:2013:392, paragraph28), and of 26April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraph24), each of which concerned Article199 of the VAT Directive.

13Judgment of 6October 2011, Stoppelkamp (C‑421/10, EU:C:2011:640, paragraph33), which concerned Article21(1)(b) of Sixth Council Directive 77/388/EEC of 17May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes– Common system of value added tax: uniform basis of assessment (OJ 1977 L145, p.1; ‘the Sixth Directive’).

14Judgments of 29June 1999, Coffeeshop “Siberië” (C‑158/98, EU:C:1999:334, paragraphs14 and 21); of 29June 2000, Salumets and Others (C‑455/98, EU:C:2000:352, paragraph19); and of 6July 2006, Kittel and Recolta Recycling (C‑439/04 and C‑440/04, EU:C:2006:446, paragraph50– the principle of fiscal neutrality prevents any general distinction between lawful and unlawful transactions). Regarding the exceptions, see judgments of 5July 1988, Vereniging Happy Family Rustenburgerstraat (289/86, EU:C:1988:360, paragraph20), and of 6December 1990, Witzemann (C‑343/89, EU:C:1990:445).

15Judgments of 6April 1995, BLP Group (C‑4/94, EU:C:1995:107, paragraph24); of 9October 2001, Cantor Fitzgerald International (C‑108/99, EU:C:2001:526, paragraph33); of 27September 2007, Teleos and Others (C‑409/04, EU:C:2007:548, paragraph39); and of 21February 2013, Žamberk (C‑18/12, EU:C:2013:95, paragraph36).

16Judgments of 26January 2012, ADV Allround (C‑218/10, EU:C:2012:35, paragraph27 and the case‑law cited), and of 16October 2014, Welmory (C‑605/12, EU:C:2014:2298, paragraph42). See also, to that effect, judgment of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph42).

17In this regard, see, inter alia, judgments of 20October 1993, Balocchi (C‑10/92, EU:C:1993:846, paragraph25); of 21February 2008, Netto Supermarkt (C‑271/06, EU:C:2008:105, paragraph21); and of 23November 2017, Di Maura (C‑246/16, EU:C:2017:887, paragraph23).

18See Stadie,H., Umsatzsteuerrecht, 2005, paragraph1.18.

19Judgments of 25May 1993, Mohsche (C‑193/91, EU:C:1993:203, paragraph9); of 8March 2001, Bakcsi (C‑415/98, EU:C:2001:136, paragraph46); of 17May 2001, Fischer and Brandenstein (C‑322/99 and C‑323/99, EU:C:2001:280, paragraph76); and of 23April 2009, Puffer (C‑460/07, EU:C:2009:254, paragraph46).

20Judgment of 5May 1982, Schul Douane Expediteur (15/81, EU:C:1982:135, operative part2); similarly, judgment of 6July 1988, Ledoux (127/86, EU:C:1988:366, paragraph20).

21Judgment of 17December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph54), confirmed by judgment of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph53). Along similar lines, see also judgment of 5July 2018, Marcandi (C‑544/16, EU:C:2018:540, paragraph65).

22See judgment of 17December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph59); to the opposite effect, see judgment of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph48).

23Judgments of 17December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832, paragraph59); of 5July 2018, Marcandi (C‑544/16, EU:C:2018:540, paragraphs64 and 66); and of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph51).

24See judgments of 14June 2017, Compass Contract Services (C‑38/16, EU:C:2017:454, paragraphs29 and 30 and the case‑law cited), and of 18June 2020, KrakVet Marek Batko (C‑276/18, EU:C:2020:485, paragraph52).

25Judgments of 12February 2009, Block (C‑67/08, EU:C:2009:92, paragraph31); of 8December 2011, Banco Bilbao Vizcaya Argentaria (C‑157/10, EU:C:2011:813, paragraph39); and of 26May 2016, NN (L) International (C‑48/15, EU:C:2016:356, paragraph47).

26As is known, that requirement contained in Article51(1) of the Charter of Fundamental Rights is understood very broadly by the Court– see, inter alia, judgment of 26February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph25 et seq.).

27Bundesfinanzhof (Federal Finance Court, Germany), decision of 22February 2001– VR 26/00, UR 2001, 305, paragraphs54 and 56.

28Judgment of 6February 2003, Auto Lease Holland (C‑185/01, EU:C:2003:73, paragraph37). Similarly, judgment of 5July 2018, Marcandi (C‑544/16, EU:C:2018:540, paragraph49), which was based on a different assessment of the issuance of ‘credits’ in the Member States.