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

• Jurisdiction: European Union
• Celex Number: 62009CC0530
• ECLI: ECLI:EU:C:2011:14
• Date: 13 January 2011
• Docket Number: C-530/09
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

BOT

delivered on 13 January 2011 (1)

Case C‑530/09

Inter-Mark Group sp. z o.o., sp. komandytowa w Poznaniu

v

Minister Finansów

(Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Poznaniu (Poland))

(Directive 2006/112/EC – VAT – Supply of services – Determination of the place of supply for tax purposes – Temporary provision of fair stands)

1. The present reference for a preliminary ruling concerns Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (2) and, more particularly, the determination of the place at which a supply of services involving the temporary provision of fair stands is made.

2. The national court is essentially asking the Court of Justice to rule whether a supply of services consisting in the temporary provision of stands for fairs or exhibitions constitutes a supply of advertising services within the meaning of Article 56(1)(b) of Directive 2006/112, and thus taxable at the place where the customer is established, or whether such a supply comes within the scope of Article 52(a) of that directive, which applies to cultural, artistic, sporting, scientific, educational, entertainment and similar activities, including, where appropriate, ancillary services, and thus taxable at the place where the services are physically carried out.

3. In this Opinion, I shall set out the reasons for my view that Article 52(a) of Directive 2006/112 must be interpreted as meaning that the supply of services consisting in the temporary provision of fair stands to exhibitors is a supply which is ancillary to fair and exhibition activities and thus comes within the scope of that provision.

I – Legal context

A – European Union law

4. Sixth Directive 77/388/EEC, (3) significantly amended on a number of occasions, has been recast as Directive 2006/112.

5. Article 1(2), first subparagraph, of Directive 2006/112 states that the principle of the common system of value added tax (‘VAT’) entails the application to goods and services of a general tax on consumption exactly proportional to the price of the goods and services.

6. The fundamental principle governing the common system of VAT is thus taxation at the place of actual consumption, (4) which ensures that VAT revenue goes to the Member State in which final consumption of goods or services takes place.

7. Thus, determination of the place of consumption is of vital importance, since the payment of the VAT to the Member State of consumption depends upon it.

8. In order for that principle to be made applicable, and in order to avoid conflicts concerning jurisdiction as between the Member States, (5) and also to prevent the double imposition or non-imposition of VAT, the European Union legislature has instituted, in so far as concerns the supply of services, a general rule and special rules which apply depending on the nature of the service supplied.

9. Thus, Article 43 of Directive 2006/112 provides that the place of supply of services is 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.

10. As regards cultural, artistic, sporting, scientific, educational, entertainment or similar activities, including the activities of the organisers of such activities and, where appropriate, ancillary services, Article 52(a) of Directive 2006/112 provides that the place of supply of such services is the place where the services are physically carried out.

11. Finally, Article 56(1)(b) of Directive 2006/112 provides that the place of supply of advertising services to customers established outside the European Community, or to taxable persons established in the Community but not in the same Member State as the supplier, is 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.

B – National law

12. Article 27(2)(3)(a) of the Law of 11 March 2004 on value added tax (Ustawa z dnia 11 marca 2004 r. o podatku od towarów i usług), (6) provides that, in the case of the supply of services relating to cultural, artistic, sporting, scientific, educational, entertainment or similar activities, such as fairs and exhibitions, and ancillary services, the place where the services are supplied is the place where the services are physically carried out.

13. Article 27(3) of that Law states that, where services referred to in Article 27(4) are supplied to natural persons, legal persons or organisational entities without legal personality, which have their place of establishment or residence within the territory of a non-member country, or to taxable persons having their place of establishment or residence within the Community but not in the same State as the supplier, the place of supply of those services is the place where the customer receiving the services has established his business or has a fixed establishment for which the services are supplied or, in the absence of such a seat or place of fixed establishment, the place where he has his permanent address or usually resides.

14. Pursuant to Article 27(4)(2) of that Law, Article 27(3) applies to, inter alia, advertising services.

II – The facts and dispute in the main proceedings

15. Inter-Mark Group sp. z o.o., sp. komandytowa w. Poznaniu (‘Inter-Mark’) is registered in Poland and, as such, is subject to VAT. The business which it wishes to carry on consists in the temporary provision of stands to mainly non-Polish exhibitors presenting their goods and services at fairs and exhibitions. These fairs and exhibitions may be located on Polish territory or on the territory of other Member States or non-member countries.

16. The national court states in its reference for a preliminary ruling that the design of a stand will generally be prepared and the stand visually presented before it is supplied to the customer. It also states that Inter-Mark may, as part of its business, also deal with transport of the components of the stand and assemble it at the location where the fair or exhibition is being held.

17. In order to determine the amount of VAT to which its business would be subject, Inter-Mark requested, by letter of 11 February 2009, an interpretation of the provisions of the Law on VAT from the Dyrektor Izby Skarbowej w Poznaniu (Director of the Poznań Tax Chamber).

18. By letter of 4 May 2009, the Director replied that, in the case of a business such as that of Inter-Mark, the place of supply of the services was, in accordance with Article 27(2)(3)(a) of the Law, the place where the services were physically carried out. He expressed the view that, contrary to Inter-Mark’s submissions, its activities did not constitute a form of persuasive communication and could not, therefore, be regarded as involving supplies of advertising services.

19. Inter-Mark requested the Director of the Poznań Tax Chamber to reconsider his decision. By letter of 12 June 2009, the latter confirmed his earlier position.

20. Taking the view that the services which it proposes to offer are to be regarded as advertising services, Inter-Mark brought an action against the decision of 4 May 2009 before the national court.

III – The questions referred for a preliminary ruling

21. In doubt as to the correct interpretation of certain provisions of European Union law, the Wojewódzki Sąd Administracyjny w Poznaniu (Regional Administrative Court, Poznań) (Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(a) Are the provisions of Article 52(a) of … Directive 2006/112 ... to be interpreted as meaning that services consisting in the temporary provision of exhibition and fair stands to clients presenting their goods and services at fairs and exhibitions must be classified as services ancillary to the fair and exhibition services referred to in those provisions, that is to say, services similar to cultural, artistic, sporting, scientific, educational and entertainment activities, which are taxed at the place where they are physically carried out,

(b) or should it be accepted that they are advertising services taxed at the place where the customer has established his business on a permanent basis 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, in accordance with Article 56(1)(b) of Directive 2006/112,

on the basis that those services concern the temporary provision of stands to clients presenting their goods and services at fairs and exhibitions which is normally preceded by the drawing-up of a design and visual presentation of the stand and, possibly, transportation of parts of the stand and its assembly at the place where the fair or exhibition is organised, and the service supplier’s clients exhibiting their goods or services pay separately to the organiser of the relevant event fees for the very possibility of participating in the fair or exhibition which cover utility, fair-infrastructure and media-service costs and so forth,

each exhibitor being separately responsible for fitting out and constructing his own stand and in that respect using the services at issue which require interpretation,

and organisers charging visitors individually fees for entrance to their fair or exhibition which accrue to the organiser of the event and not to the supplier of the service?’

IV – My analysis

22. Before undertaking my analysis, it seems appropriate to make the following observations.

23. The dispute in the main proceedings arose between...