Asparuhovo Lake Investment Company OOD v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Fernlund
• ECLI: ECLI:EU:C:2015:542
• Docket Number: C-463/14
• Date: 03 September 2015
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Third Chamber)

3 September 2015 ( *1 )

‛Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Articles 24(1), 25(b), 62(2), 63 and 64(1) — Meaning of ‘supply of services’ — Subscription contract for the supply of consulting services — Chargeable event — Need for proof of the actual supply of services — Chargeability of the tax’

In Case C‑463/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad — Varna (Bulgaria), made by decision of 29 September 2014, received at the Court on 8 October 2014, in the proceedings

Asparuhovo Lake Investment Company OOD

v

Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, A. Ó Caoimh, C. Toader, E. Jarašiūnas and C.G. Fernlund (Rapporteur), Judges,

Advocate General: P. Cruz Villalón,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 2 July 2015,

after considering the observations submitted on behalf of:

— Asparuhovo Lake Investment Company OOD, by J. Fitsev,

— the Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite, by A. Kirova, acting as Agent,

— the Greek Government, by K. Georgiadis and A. Magrippi, acting as Agents,

— the Portuguese Government, by L. Inez Fernandes, R. Campos Laires and A. Cunha, acting as Agents,

— the European Commission, by D. Roussanov and M. Owsiany-Hornung, 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 Articles 24(1), 25(b), 62(2), 63 and 64(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2 The request has been made in proceedings between Asparuhovo Lake Investment Company OOD (‘ALIC’) and the Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Director of the Varna ‘Appeals and Tax and Social Security Practice’ Directorate at the central office of the National Revenue Agency; the ‘Direktor’) concerning the deduction of input value added tax (‘VAT’) levied on the purchase of consulting services by subscription.

Legal context

EU law

3 Article 2 of the VAT Directive provides: ‘1. The following transactions shall be subject to VAT: ... (c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such; ...’

4 Article 9(1) of the VAT Directive provides: ‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

5 Article 24(1) of the VAT Directive is worded as follows: ‘“Supply of services” shall mean any transaction which does not constitute a supply of goods’.

6 Article 25 of the VAT Directive provides: ‘A supply of services may consist, inter alia, in one of the following transactions: ... (b) the obligation to refrain from an act, or to tolerate an act or situation; ...’

7 Article 62 of the VAT Directive provides: ‘For the purposes of this Directive: (1) “chargeable event” shall mean the occurrence by virtue of which the legal conditions necessary for VAT to become chargeable are fulfilled; (2) VAT shall become “chargeable” when the tax authority becomes entitled under the law, at a given moment, to claim the tax from the person liable to pay, even though the time of payment may be deferred.’

8 Article 63 of the VAT Directive provides: ‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

9 Article 64(1) of the VAT Directive reads as follows: ‘Where it gives rise to successive statements of account or successive payments, the supply of goods, other than that consisting in the hire of goods for a certain period or the sale of goods on deferred terms, as referred to in point (b) of Article 14(2), or the supply of services shall be regarded as being completed on expiry of the periods to which such statements of account or payments relate.’

10 Article 66 of the VAT Directive provides that Member States may derogate ‘from Articles 63, 64 and 65 … [and] provide that VAT is to become chargeable, in respect of certain transactions or certain categories of taxable person at one of the following times: (a) no later than the time the invoice is issued; (b) no later than the time the payment is received; (c) where an invoice is not issued, or is issued late, within a specified period from the date of the chargeable event’.

Bulgarian law

11 In accordance with Article 2 of the Law on VAT (Zakon za danâk vârhu dobavenata stoynost, DV No 63, of 4 August 2006; ‘the ZDDS’), in the version in force at the material time in the main proceedings: ‘The following shall be subject to [VAT]: 1. any supply of goods or services for consideration; ...’

12 Article 8 of the ZDDS provides: ‘[A] “service” for the purposes of this law is anything which has a value and which is distinct from goods and from money in circulation and foreign currencies which are used as a means of payment.’

13 Under Article 9 of the ZDDS: ‘(1) A “supply of services” shall be any performance of a service. (2) The following shall also be regarded as a supply of services: ... 2. the entry into an obligation to refrain from certain acts or from exercising certain rights; ...’

14 Article 25 of the ZDDS provides: ‘(1) The “chargeable event” within the meaning of this law shall be a supply of goods or services which is carried out by a taxable person for the purposes of this law, an intra-Community acquisition or an importation of goods within the meaning of Article 16. (2) The chargeable event shall occur on the date on which ownership of the goods is transferred or the service supplied. ... (4) In respect of a supply occurring periodically, in stages or continuously, excluding supplies referred to in Article 6(2), each period or stage for which payment is agreed shall, taken individually, be regarded as a supply and the chargeable event corresponding to that supply shall occur on the date on which the payment becomes due. ... (6) On the date on which the chargeable event occurs pursuant to paragraph 2, 3 or 4: 1. the tax on taxable transactions under this law shall become chargeable and the obligation, on the registered person, to invoice the tax shall arise … ...’

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

15 ALIC is a Bulgarian company whose business is mainly concerned with agriculture, horticulture, livestock rearing and related activities.

16 On 1 August 2011, ALIC entered into subscription contracts for consulting services with four other companies, namely ‘Krestan Bulmar — Korporativni finansi’ EOOD, ‘Krestan Bulmar — Biznes razvitie’ EOOD, ‘Krestan Bulmar — Legakonsult’ EOOD and ‘Biznes Ekspres’ EOOD, (together the‘service providers’), in the areas of corporate finance, commercial development, legal advice and information security, respectively. Those consulting companies were all represented by the same person. The parties terminated those contracts from 5 March 2012.

17 Under those contracts, the service providers undertook to: — make themselves available to ALIC for consultation, meetings and commitments, on each working day from 9 a.m. to 6 p.m. and, when needed, outside office hours, including on Sundays and public holidays; — where appropriate, ensure, during such time as necessary, the presence of a competent person at ALIC’s offices and/or those of a third party associated with ALIC, including outside office hours and on Sundays and public holidays; — obtain documents and necessary information and exchange them between the parties in order to guarantee the fullest and most efficient protection possible of ALIC’s interests, and — transmit, in good time, to the customer, for consultation, negotiation and signature, all the necessary documents relating to the protection of the customer’s interests.

18 The service providers declared that they had not entered into similar contracts with third parties whose interests were contrary to those of ALIC and/or which were competing directly with ALIC. They also undertook to refrain from entering into such contracts.

19 In exchange, ALIC undertook to pay them weekly remuneration, disbursed every Monday following the week for which it...