Inter-Mark Group sp. z o.o. sp. komandytowa v Minister Finansów.

• Jurisdiction: European Union
• Celex Number: 62009CJ0530
• ECLI: ECLI:EU:C:2011:697
• Date: 27 October 2011
• Docket Number: C-530/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-530/09

Inter-Mark Group sp. z o.o. sp. komandytowa

v

Minister Finansów

(Reference for a preliminary ruling from the

Wojewódzki Sąd Administracyjny w Poznaniu)

(VAT – Directive 2006/112/EC – Articles 52(a) and 56(1)(b) and (g) – Place of taxable transactions – Place of supply for tax purposes – Design, hiring out and assembly of fair stands)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services – Determination of the point of reference for tax purposes – Design, temporary provision and possibly transport and assembly of an exhibition or fair stand

(Council Directive 2006/112, Arts 52(a) and 56(1)(b) and (g))

Directive 2006/112 on the common system of value added tax must be interpreted as meaning that a supply of services consisting of the design, temporary provision and, where necessary, the transportation and assembly of a fair or exhibition stand for clients presenting their goods or services at fairs and exhibitions may fall within the ambit of:

– Article 56(1)(b) of that directive, when that stand is designed or used for purposes of advertising;

– Article 52(a) of that directive, when that stand is designed and provided for a specific fair or exhibition on a cultural, artistic, sporting, scientific, educational, entertainment or similar theme, or when it corresponds to a model in respect of which the organiser of a specific fair or exhibition has prescribed the form, size, material composition or visual appearance;

– Article 56(1)(g) of that directive, when the temporary provision, for payment, of the constituent material elements of that stand constitutes a determining element of that supply.

In order for it to be possible for the stand to be classified as a supply of advertising services, within the meaning of Article 56(1)(b) of Directive 2006/112, it is sufficient if that stand is used for the dissemination of a message intended to inform the public of the existence or qualities of the product or service offered by the hirer with a view to increasing the sales of that product or service or if it forms an inseparable part of an advertising campaign and contributes to conveying the advertising message. This will be the case, in particular, when the stand constitutes an aid for the dissemination of a message informing the public of the existence or qualities of the products or is used for the organisation of promotional events.

By contrast, when the stand in question does not fulfil those conditions, in order for it to be possible for that supply to be classified as ancillary for the purpose of Article 52(a) of Directive 2006/112, the stand must be provided for a fair or an exhibition which takes place, whether on one occasion or repeatedly, in a specific location. As that provision requires the charging of VAT at the place where the service is physically carried out, the application of that provision to the supply of a stand which is used at a multitude of fairs or exhibitions taking place in several Member States would be likely to be excessively complex and would thus jeopardise the reliable and correct charging of VAT.

Finally, should the supply of services not fall within the ambit of either Article 56(1)(b) or Article 52(a) of Directive 2006/112, it may be classified as the hiring out of movable tangible property, within the meaning of Article 56(1)(g) of Directive 2006/112, under those conditions and, in particular, when that stand is used at several fairs or exhibitions taking place in different Member States.

It is for the national courts, which alone are competent to assess the facts, to establish, in the light of the specific circumstances of each case, the essential characteristics of the supply of services in question in order to determine its classification in the light of Directive 2006/112.

(see paras 18, 20-21, 26-27, 32-33, operative part)

JUDGMENT OF THE COURT (First Chamber)

27 October 2011 (*)

(VAT – Directive 2006/112/EC – Articles 52(a) and 56(1)(b) and (g) – Place of taxable transactions – Place of supply for tax purposes – Design, hiring out and assembly of fair stands)

In Case C‑530/09,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Wojewódzki Sąd Administracyjny w Poznaniu (Poland), made by decision of 26 October 2009, received at the Court on 18 December 2009, in the proceedings

Inter-Mark Group sp. z o.o. sp. komandytowa

v

Minister Finansów,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, M. Safjan, M. Ilešič, J.‑J. Kasel (Rapporteur) and M. Berger, Judges,

Advocate General: Y. Bot,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 8 December 2010,

after considering the observations submitted on behalf of:

– Inter-Mark Group sp. z o.o. sp. komandytowa, by P. Kuźmiak, doradca podatkowy, assisted by M. Witkowiak, ekspert,

– the Polish Government, by A. Kramarczyk, M. Szpunar and B. Majczyna, acting as Agents,

– the German Government, by J. Möller and C. Blaschke, acting as Agents,

– the Greek Government, by Z. Chatzipavlou, G. Papagianni, and G. Kanellopoulos, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, assisted by F. Arena, avvocato dello Stato,

– the European Commission, by K. Herrmann and D. Triantafyllou, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 January 2011,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 52(a) and 56(1)(b) 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 reference has been made in proceedings between Inter‑Mark Group sp. z o.o. sp. komandytowa (‘Inter-Mark’), a company incorporated under Polish law and subject to value added tax (‘VAT’) in Poland, and the Dyrektor Izby Skarbowej w Poznaniu (Director of the Poznan Tax Chamber; ‘the Dyrektor’), acting on behalf of the Minister Finansów (Minister for Finance), regarding the determination, for VAT purposes, of the place where a supply of services is deemed to have been made.

Legal context

European Union legislation

3 Article 45 of Directive 2006/112 provides:

‘The place of supply of services connected with immovable property, including the services of estate agents and experts, and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the property is located.’

4 Article 52(a) of that directive provides:

‘The place of supply of the following services shall be the place where the services are physically carried out:

(a) cultural, artistic, sporting, scientific, educational, entertainment or similar activities, including the activities of the organisers of such activities and, where appropriate, ancillary...