Kollektivavtalsstiftelsen TRR Trygghetsrådet v Skatteverket.

• Jurisdiction: European Union
• Celex Number: 62007CC0291
• ECLI: ECLI:EU:C:2008:348
• Date: 17 June 2008
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-291/07

OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 17 June 2008 (1)

Case C‑291/07

Kollektivavtalsstiftelsen TRR Trygghetsrådet

v

Skatteverket

(Reference for a preliminary ruling from the Regeringsrätten (Sweden))

(Taxation – VAT – Council Directives 77/388/EEC and 2006/112/EC – Place of supply – Consultancy services – National foundation which carries out both economic and other activities which do not fall within the scope of Directives 77/388 and 2006/112)

1. By the present reference for a preliminary ruling, the Regeringsrätten (Supreme Administrative Court) (Sweden), asks the Court of Justice to interpret Articles 9(2)(e) and 21(1)(b) of the Sixth VAT Directive (2) as well as Articles 56(1)(c) and 196 of Directive 2006/112 (3) (collectively ‘the relevant provisions’). The case in the main proceedings relates in part to accounting periods to which the provisions of the Sixth Directive are applicable and in part to accounting periods to which the provisions of Directive 2006/112 apply.

2. The case concerns a Swedish foundation which carries out both economic and other activities and which intends to purchase consultancy services from Denmark. The referring court wishes to know whether, for the purposes of applying the relevant provisions, the foundation is a taxable person even though the purchase is to be made in respect only of the part of its activities which falls outside the scope of the Directives.

I – Legal framework

A – Community law

3. Under Article 2(1) of the Sixth Directive, the following is to be subject to VAT: ‘the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such’.

4. Article 4(1) of the Sixth Directive provides that a taxable person means ‘any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity’. Article 4(2) reads as follows: ‘economic activities ... shall comprise all activities of producers, traders and persons supplying services ...’.

5. Pursuant to Article 9 of the Sixth Directive which concerns the place of supply of services:

‘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:

…

– services of consultants, engineers, consultancy bureaux, lawyers, accountants and other similar services, as well as data processing and the supplying of information,

…’

6. Article 21(1)(b) of the Sixth Directive provides that the following are to be liable to pay VAT:

‘persons to whom services covered by Article 9(2)(e) are supplied and carried out by a taxable person resident abroad. However, Member States may require that the supplier of services shall be held jointly and severally liable for payment of the tax.’

7. Under Article 2(1)(c) of Directive 2006/112, the following type of transaction is to be subject to VAT: ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such.’

8. Article 9(1) of Directive 2006/112 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 … activities of the professions, shall be regarded as “economic activity” …’

9. Under Article 56(1) of Directive 2006/112:

‘The place of supply of the following services to customers established outside the Community, or to 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 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:

…

(c) the services of consultants, engineers, consultancy bureaux, lawyers, accountants and other similar services, as well as data processing and the provision of information;

…’

10. Finally, Article 196 of Directive 2006/112 provides:

‘VAT shall be payable by any taxable person to whom the services referred to in Article 56 are supplied …’

B – National law

11. Pursuant to Paragraph 1 of Chapter 1 of the mervärdesskattelagen (1994:200) (Law on VAT; ‘ML’), VAT is to be paid on turnover made within the country on goods and services which are subject to taxation and supplied as part of a professional activity. (4)

12. Pursuant to Paragraph 7 of Chapter 5 of the ML, certain specified services, including consultancy services, supplied from another Member State are regarded as supplied within the country if the purchaser is a trader who has his place of business in Sweden or a fixed establishment for which the service is supplied, or, if the trader does not have such a place of business or fixed establishment in Sweden, the place where he has his permanent address or usually resides. If the supplier of the taxable consultancy services within the country is a foreign company, it is the purchaser, pursuant to Paragraph 2 of Chapter 1 of the ML, who is liable to pay the VAT. (5)

13. There is no definition in the ML of the term ‘trader’. Under Paragraph 1 of Chapter 4 of the ML, ‘professional activity’ is defined as an activity which constitutes economic activity pertaining to business and remuneration for transactions undertaken as part of that activity which, in one tax year, exceed SEK 30 000. It is clear from Paragraph 1 of Chapter 13 of the inkomstskattelagen (Law on income tax) that economic activity refers to gainful activity carried out independently in the course of a profession.

II – Facts and procedure and the question referred for a preliminary ruling

14. The case in the main proceedings concerns a foundation formed on the basis of collective agreements, the Kollektivavtalsstiftelsen TRR Trygghetsrådet (Restart – the Council for Redundancy Support and Advice) (‘TRR’), which was formed in 1994 from the Svenska Arbetsgivareföreningen (Confederation of Swedish Enterprise; now Svenskt Näringsliv) and the Privattjänstemannakartellen (Federation of Salaried Employees in Industry and Services).

15. According to its statutes, TRR’s aims are, on the one hand, to pay compensation for unemployment and to promote measures to facilitate the transfer to new employment of employees who, for specific reasons, have been made unemployed or who...