EGN BV - Filiale Italiana v Agenzia delle Entrate - Ufficio di Roma 2.

• Jurisdiction: European Union
• Celex Number: 62008CJ0377
• ECLI: ECLI:EU:C:2009:423
• Docket Number: C-377/08
• Date: 02 July 2009
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-377/08

EGN BV – Filiale Italiana

v

Agenzia delle Entrate – Ufficio di Roma 2

(Reference for a preliminary ruling from the Corte suprema di cassazione)

(Sixth VAT Directive – Article 17(3)(a) – Deductibility and refunding of input VAT – Provision of telecommunications services – Supply of services for a customer established in another Member State – Article 9(2)(e) – Determination of the place where the service is provided)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Deduction of input tax – Goods and services used for the purposes of transactions of the taxable person carried out abroad

(Council Directive 77/388, Art. 17(3)(a))

Article 17(3)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 95/7, must be interpreted as meaning that a supplier of telecommunications services, which is established in the territory of a Member State, is entitled under that provision to deduct or obtain a refund in that Member State of input value added tax on telecommunications services that have been supplied to an undertaking having its principal place of business in another Member State, since such a supplier would have had that right if the services at issue had been supplied in the territory of the former Member State.

(see para. 34, operative part)

JUDGMENT OF THE COURT (Seventh Chamber)

2 July 2009 (*)

(Sixth VAT Directive – Article 17(3)(a) – Deductibility and refunding of input VAT – Provision of telecommunications services – Supply of services for a customer established in another Member State – Article 9(2)(e) – Determination of the place where the service is provided)

In Case C‑377/08,

REFERENCE for a preliminary ruling under Article 234 EC, from the Corte suprema di cassazione (Italy), made by decision of 23 April 2008, received at the Court on 18 August 2008, in the proceedings

EGN BV – Filiale Italiana

v

Agenzia delle Entrate – Ufficio di Roma 2,

THE COURT (Seventh Chamber),

composed of A.Ó Caoimh (Rapporteur), President of Chamber, J.N. Cunha Rodrigues and J. Klučka, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after considering the observations submitted on behalf of:

– EGN BV – Filiale Italiana, by G. Boniello and G. Polacco, avvocati,

– the Commission of the European Communities, by A. Aresu and M. Afonso, acting as Agents,

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

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 17(3)(a) of Sixth Council Directive 77/388/EEC of 17 May 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 L 145, p. 1), as amended by Council Directive 95/7/EC of 10 April 1995 (OJ 1995 L 102, p. 18), (‘the Sixth Directive’).

2 This reference was made in the course of proceedings between EGN BV – Filiale Italiana (‘EGN’) and Agenzia delle Entrate – Ufficio di Roma 2 (Revenue Authority – Rome Office 2), (the ‘Agenzia’), concerning the latter’s refusal to authorise deduction of the value added tax (VAT) on telecommunications services EGN had supplied during 1999.

Legal context

Community legislation

3 The seventh recital in the preamble to the Sixth Directive reads:

‘Whereas the determination of the place where taxable transactions are effected has been the subject of conflicts concerning jurisdiction as between Member States, in particular as regards supplies of goods for assembly and the supply of services; whereas although the place where a supply of services is effected should in principle be defined as the place where the person supplying the services has his principal place of business, that place should be defined as being in the country of the person to whom the services are supplied, in particular in the case of certain services supplied between taxable persons where the cost of the services is included in the price of the goods’.

4 Article 2(1) of the Sixth Directive provides that ‘[t]he following shall be subject to [VAT]: … the supply of … services effected for consideration within the territory of the country by a taxable person acting as such’.

5 Article 4(1) and (2) of the Sixth Directive provide:

‘1. “Taxable person” shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity.

2. The economic activities referred to in paragraph 1 shall comprise all activities of producers, traders and persons supplying services including mining and agricultural activities and activities of the professions. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity.’

6 Article 9(1) and (2)(e) of the Sixth Directive provide:

‘1. The place where a service is supplied 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.

2. However:

…

(e) the place where the following services are supplied when performed for customers established outside the Community or for 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 to which the service is supplied or, in the absence of such a place, the place where he has his permanent address or usually resides:

– transfers and assignments of copyrights, patents, licences, trade marks and similar rights,

– advertising services,

– services of consultants, engineers, consultancy...