Climate Corporation Emissions Trading GmbH v Finanzamt Österreich.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:842
• Date: 27 October 2022
• Docket Number: C-641/21
• Celex Number: 62021CJ0641
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

27 October 2022 (*)

(Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 44 – Point of reference for tax purposes – Transfer of greenhouse gas emission allowances – Recipient involved in VAT evasion in a chain of transactions – Taxable person who knew or should have known about that evasion)

In Case C‑641/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzgericht (Federal Finance Court, Austria), made by decision of 11 October 2021, received at the Court on 20 October 2021, in the proceedings

Climate Corporation Emissions Trading GmbH

v

Finanzamt Österreich,

THE COURT (Eighth Chamber),

composed of K. Jürimäe (Rapporteur), President of the Third Chamber, acting as President of the Eighth Chamber, N. Jääskinen and M. Gavalec, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Climate Corporation Emissions Trading GmbH, by W. Standfest, Rechtsanwalt,

– the European Commission, by A. Armenia and B.‑R. Killmann, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11) (‘the VAT Directive’).

2 The request has been made in proceedings between Climate Corporation Emissions Trading GmbH (‘Climate Corporation’) and the Finanzamt Österreich (Tax Office, Austria) concerning the imposition of value added tax (VAT) on transactions consisting of the transfer of greenhouse gas emission allowances.

Legal context

European Union law

3 Article 2(1) of the VAT Directive provides:

‘1. The following transactions shall be subject to VAT:

…

(b) the intra-Community acquisition of goods for consideration within the territory of a Member State …:

…

(c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such;

…’

4 Under Title V of that directive, entitled ‘Place of taxable transactions’, Chapter 3, entitled ‘Place of supply of services’, includes Article 44 of that directive, which provides:

‘The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. However, if those services are provided to a fixed establishment of the taxable person located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the taxable person who receives such services has his permanent address or usually resides.’

5 Article 44 stems from Directive 2008/8, which amended Directive 2006/112 as regards the place of supply of services. Recitals 3 and 4 of Directive 2008/8 are worded as follows:

‘(3) For all supplies of services the place of taxation should, in principle, be the place where the actual consumption takes place. If the general rule for the place of supply of services were to be altered in this way, certain exceptions to this general rule would still be necessary for both administrative and policy reasons.

(4) For supplies of services to taxable persons, the general rule with respect to the place of supply of services should be based on the place where the recipient is established, rather than where the supplier is established. …’

6 Under Title IX of the VAT Directive, entitled ‘Exemptions’, Chapter 1, entitled ‘General provisions’, includes Article 131 of that directive, which provides:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

7 Title IX also contains Chapter 4, entitled ‘Exemptions for intra-Community transactions’. Within Chapter 4, Article 138(1) of the VAT Directive provides:

‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the [European] Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.’

8 Article 196 of that directive provides:

‘VAT shall be payable by any taxable person, or non-taxable legal person identified for VAT purposes, to whom the services referred to in Article 44 are supplied, if the services are supplied by a taxable person not established within the territory of the Member State.’

9 The first paragraph of Article 273 of that directive states:

‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion, subject to the requirement of equal treatment as between domestic transactions and transactions carried out between Member States by taxable persons and provided that such obligations do not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

Austrian law

10 Paragraph 3a(6) of the Umsatzsteuergesetz (Law on turnover tax) of 23 August 1994 (BGBl. 663/1994), in the version applicable to the facts of the main proceedings (BGBl. I 52/2009) provides:

‘Without prejudice to subparagraphs 8 to 16 and Article 3a, other supplies made to a trader within the meaning of points 1 and 2 of subparagraph 5 shall be deemed to be made at the place from which the recipient carries on his or her business. If, however, the other supply is made at the fixed establishment of a trader, the location of the fixed establishment shall be decisive.’

11 It is apparent, in that regard, from the order for reference that the concepts of ‘trader’ and ‘other supplies’ used in that provision correspond, respectively, to the concepts of ‘taxable person’ and ‘supply of services’ used in EU law.

The dispute in the main proceedings and the question referred for a preliminary ruling

12 From 1 to 20 April 2010, Climate Corporation, whose registered office is in Baden (Austria), transferred, for consideration, greenhouse gas emission allowances to Bauduin Handelsgesellschaft mbH (‘Bauduin’), whose registered office is in Hamburg (Germany).

13 By a turnover tax assessment notice in respect of 2010, adopted on 27 January 2012, the Finanzamt Baden Mödling (Tax Office, Baden Mödling, Austria) categorised those transfers of greenhouse gas emission allowances as a taxable ‘supply...