Opinion of Advocate General Sharpston delivered on 10 January 2019.

• Jurisdiction: European Union
• Celex Number: 62017CC0647
• ECLI: ECLI:EU:C:2019:13
• Date: 10 January 2019
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-647/17

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 10 January 2019(1)

Case C‑647/17

Skatteverket

v

Srf konsulterna AB

(Request for a preliminary ruling from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden))

(Reference for a preliminary ruling — Common system of value added tax — Place of taxable transactions — Services offered to taxable persons — Supply of services in respect of admission to educational events — Seminar taking place in a Member State where neither supplier nor participants are established — Seminar requiring advance registration and payment)

1. By this request for a preliminary ruling the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) asks the Court for guidance as to whether a seminar organised by a taxable person established in Sweden for participants who themselves are taxable persons established in Sweden, but taking place in another Member State, should be subject to VAT in Sweden or in that other Member State. Should the place of supply of such a seminar be determined in accordance with Article 44 of Directive 2006/112/EC (2) or Article 53 of that directive?

2. The Court is thus called upon for the first time to examine and define the material scope of Article 53 in relation to services supplied to taxable persons consisting of admission to educational events within the meaning of that provision. The Court’s answer is likely to have a decisive impact on determining the place of supply of services (including ancillary services related to admission) in respect of other categories of events referred to in Article 53 that is to say ‘cultural, artistic, sporting, scientific, educational, entertainment or similar events’ (ranging from tennis tournaments to trade fairs, arts exhibitions to music concerts). To take a very specific example, it may thus provide guidance for determining the place of supply of a major international event such as the forthcoming EURO 2020 football championships. (3)

EU law

Directive 2006/112

3. Article 44 of Directive 2006/112 provides that ‘the place of supply of services to a taxable person acting as such shall be the place where that person has established his business’. (4)

4. Article 53 states that in the case of supplies to a taxable person, ‘the place of supply of services in respect of admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events, such as fairs and exhibitions, and of ancillary services related to the admission … shall be the place where those events actually take place’.

5. Article 54(1) provides that in respect of supplies to a non-taxable person ‘the place of supply of services and ancillary services, relating to cultural, artistic, sporting, scientific, educational, entertainment or similar activities, such as fairs and exhibitions, including the supply of services of the organisers of such activities … shall be the place where those activities actually take place’.

6. Pursuant to Article 132(1)(i), Member States are to exempt from VAT ‘the provision of … vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects’.

Regulation No 282/2011

7. Article 32(1) of Regulation No 282/2011 (5) provides that Article 53 of Directive 2006/112 should apply in particular to ‘the supply of services of which the essential characteristics are the granting of the right of admission to an event in exchange for a ticket or payment, including payment in the form of a subscription, a season ticket or a periodic fee’.

8. Article 32(2) states that such services include in particular: ‘(a) the right of admission to shows, theatrical performances, circus performances, fairs, amusement parks, concerts, exhibitions, and other similar cultural events; (b) the right of admission to sporting events such as matches or competitions; and (c) the right of admission to educational and scientific events such as conferences and seminars’.

9. In accordance with Article 32(3), the use of facilities such as gymnastics halls and suchlike, in exchange for the payment of a fee, does not fall within Article 32(1).

10. Article 33 provides that ‘the ancillary services referred to in Article 53 of Directive 2006/112/EC shall include services which are directly related to admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events and which are supplied separately for a consideration to a person attending an event’. It further specifies that ‘such ancillary services shall include in particular the use of cloakrooms or sanitary facilities but shall not include mere intermediary services relating to the sale of tickets’.

National law

11. Under Chapter 5, Paragraph 5, of the mervärdesskattelagen 1994:200 (Law No 1994:200 on value added tax), (6) a service which is supplied to a taxable person is sold in Sweden if the taxable person has either established his business in Sweden or has a fixed establishment there to which the service in question was supplied.

12. Pursuant to Paragraph 11a in Chapter 5 of the Law on VAT, a service in the form of admission to cultural, artistic, sporting, scientific, educational, entertainment or similar events, such as fairs and exhibitions, supplied to a taxable person, is considered to be sold in Sweden if the event actually takes place in Sweden. The same holds good as regards ancillary services related to the admission.

Facts, procedure and the question referred

13. Srf konsulterna AB (‘Srf konsulterna’) is a company established in Sweden, wholly owned by a professional association for accounting, management and salary consultants. It provides educational and vocational training to consultants in return for a fee.

14. The referring court states that amongst other activities, Srf konsulterna provides seminars lasting for 30 hours spread over five days with one day’s break in the middle. Those seminars are made available only to professionals established or having a fixed establishment in Sweden, regardless of whether they are members of Srf konsulterna’s parent professional association. The syllabus is decided in advance and assumes that participants have prior knowledge and experience of accountancy issues, although it can be adapted depending on the level of competence of those who actually attend. Seminars take place in a conference facility.

15. Participants must register in advance and have been accepted before the start of the course. Thus, Srf konsulterna has access to information on participants’ identity, such as their names, addresses, personal identification numbers or registration numbers. (7) Payment is made in advance.

16. Some of Srf konsulterna’s seminars take place in various locations in Sweden, whilst others are held in other Member States.

17. It is with respect to the latter (‘the seminars at issue’) that Srf konsulterna requested Skatterättsnämnden (the Revenue Law Commission, Sweden) to rule on whether the place of supply should be considered to be Sweden or the Member State where the seminar took place.

18. The Skatterättsnämnden held that such seminars are to be regarded as supplied in Sweden — even if they physically take place abroad. Accordingly, Article 44 rather than Article 53 applies, with the result that the VAT is chargeable in Sweden.

19. The Skatteverket (Swedish local tax administration) did not agree with the grounds given in that decision and lodged an appeal against that ruling before the Högsta förvaltningsdomstolen (Supreme Administrative Court).

20. Taking the view that the meaning of Article 53 of Directive 2006/112 and its relationship to Article 44 of that directive were not entirely clear, the referring court stayed the proceedings and referred the following question to this Court:

‘Must the expression “admission to events” in Article 53 of [Directive 2006/112] be interpreted as meaning that it covers a service in the form of a five-day course on accountancy which is supplied solely totaxable persons and requires advance registration and payment?’

21. The Skatteverket, France, the United Kingdom and the Commission submitted written observations. At the hearing on 18 October 2018, Sweden and the Commission made oral submissions.

Assessment

Preliminary remarks

22. The referring court seeks to ascertain whether the supply of services, such as those at issue in the main proceedings, falls within the scope of Article 53 of Directive 2006/112. The answer to the question referred thus turns on whether the seminars organised by Srf konsulterna in Member States other than Sweden can be classified as the supply of services ‘in respect of admission to … educational … events’ within the meaning of Article 53 of Directive 2006/112.

23. As a preliminary point, I note that it is common ground that the supplies at issue in the main proceedings constitute services rather than goods. It is also common ground that those services are made exclusively to taxable persons. Equally clearly, the order for reference reveals that the services supplied by Srf konsulterna are educational in nature. Thus, Articles 44 and 53 are indeed the provisions that are potentially relevant for determining the place of supply.

24. If the answer to the question referred is that what is provided is ‘admission to events’ within the meaning of Article 53 of Directive 2006/112, since the seminars at issue take place in a Member State other than Sweden, the place of supply would be considered to be that other Member State. (8) If the provision of those services is not covered by Article 53, then since the participants in the seminars at issue are all established in Sweden, the place of supply would be Sweden, in accordance with Article 44 thereof. (9)

25. The Court has...