DuoDecad Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:474
• Docket Number: C-596/20
• Date: 16 June 2022
• Celex Number: 62020CJ0596
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

16 June 2022 (*)

(Reference for a preliminary ruling – Taxation – Common system of value added tax (VAT) – Directive 2006/112/EC – Articles 2, 24 et 43 – Place of supply of services – Technical support services provided to a company established in another Member State – Abuse of rights – Assessment of the facts – Lack of jurisdiction)

In Case C‑596/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Törvényszék (Budapest High Court, Hungary), made by decision of 28 September 2020, received at the Court on 12 November 2020, in the proceedings

DuoDecad Kft.

v

Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis (Rapporteur), President of the Chamber, M. Ilešič and D. Gratsias, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– DuoDecad Kft., by Z. Várszegi, ügyvéd,

– the Hungarian Government, by M.Z. Fehér and G. Koós, acting as Agents,

– the Portuguese Government, initially by L. Inez Fernandes, R. Campos Laires and P. Barros da Costa, and subsequently by R. Campos Laires and P. Barros da Costa, acting as Agents,

– the European Commission, by V. Uher and A. Tokár, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 February 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(1), Article 24(1) and Article 43 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request has been made in proceedings between DuoDecad Kft. and Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Appeals Directorate of the National Tax and Customs Administration, Hungary; ‘the Appeals Directorate’) concerning the payment of value added tax (VAT) relating to the services provided by DuoDecad in the years 2009 and 2011.

Legal context

European Union law

3 Pursuant to Article 2(1)(c) of Directive 2006/112, the supply of services for consideration within the territory of a Member State by a taxable person acting as such is subject to VAT.

4 Article 24 of that directive states:

‘1. “Supply of services” shall mean any transaction which does not constitute a supply of goods.

2. “Telecommunications services” shall mean services relating to the transmission, emission or reception of signals, words, images and sounds or information of any nature by wire, radio, optical or other electromagnetic systems, including the related transfer or assignment of the right to use capacity for such transmission, emission or reception, with the inclusion of the provision of access to global information networks.’

5 In the version of the VAT Directive in force from 1 January 2007 until 31 December 2009, Article 43 provided:

‘The place of supply of services shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied, or, in the absence of such a place of business or fixed establishment, the place where he has his permanent address or usually resides.’

6 Council Directive 2008/8/EC of 12 February 2008, amending Directive 2006/112 (OJ 2008 L 44, p. 11), replaced, with effect from 1 January 2010, Articles 43 to 59 of Directive 2006/112. Article 44 of Directive 2006/112, as amended by Directive 2008/8, 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.’

7 In that version, Article 45 of Directive 2006/112 states:

‘The place of supply of services to a non-taxable person shall be the place where the supplier has established his business. However, if those services are provided from a fixed establishment of the supplier 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 supplier has his permanent address or usually resides.’

8 In the version of the VAT Directive in force from 1 January 2007 until 31 December 2009, Article 56 provided:

‘1. The place of supply of the following services to customers established outside the [European] Community, or to taxable persons established in the Community but not in the same country as the supplier, shall be the place where the customer has established his business or has a fixed establishment for which the service is supplied, or, in the absence of such a place, the place where he has his permanent address or usually resides:

…

(k) electronically supplied services, such as those referred to in Annex II;

…’

9 In that version, Directive 2006/112 mentioned, in Annex II thereto, entitled ‘Indicative list of the electronically supplied services referred to in point (k) of Article 56(1)’, inter alia, ‘website supply, web-hosting, distance maintenance of programmes and equipment’ and ‘supply of images, text and information and making available of databases’.

10 Article 59 of Directive 2006/112, as amended by Directive 2008/8, provides:

‘The place of supply of the following services to a non-taxable person who is established or has his permanent address or usually resides outside the Community, shall be the place where that person is established, has his permanent address or usually resides:

…

(k) electronically supplied services, in particular those referred to in Annex II.

…’

Hungarian law

11 In the version applicable to the facts of the dispute in the main proceedings, the az általános forgalmi adóról szóló 2007. évi CXXVII. törvény (Law CXXVII of 2007 on value added tax (Magyar Közlöny 2007/155) (XI. 16.)) provided, in Paragraph 37 thereof:

‘(1) In the case of supplies of services to a taxable person, the place of supply of services shall be the place where the customer is established for the purpose of engaging in an economic activity or, in the absence of such economic establishment, the place where he has his permanent address or usually resides.

(2) In the case of supplies of services to a non-taxable person, the place of supply of services shall be the place where the supplier is established for the purpose of engaging in an economic activity or, in the absence of such economic establishment, the place where he has his permanent address or usually resides.’

12 In that version, Paragraph 46 of that law stated:

‘(1) For the services referred to in this Paragraph, the place of supply of services shall be the place where, in this context, the non-taxable customer is established or, in the absence of establishment, the place where he has his permanent address or usually resides, provided that this is outside the territory of the Community.

(2) The services to which this Paragraph applies are as follows:

…

(k) electronically supplied services.

…’

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

13 DuoDecad is a company registered in Hungary, the main activity of which is computer programming. DuoDecad provided technical support services to Lalib – Gestão e Investimentos Lda. (‘Lalib’), a company established in Madeira (Portugal), providing entertainment services by electronic means, which is its main customer. In that respect, DuoDecad issued, between July and December 2009 and for the whole of 2011, invoices amounting in total to EUR 8 086 829.40.

14 Following an inspection carried out at DuoDecad for the second half of 2009 and for the whole of 2011, the first-tier tax authority ordered DuoDecad, by decision of 10 February...