Lease Plan Luxembourg SA v Belgian State.

• Jurisdiction: European Union
• Celex Number: 61996CJ0390
• ECLI: ECLI:EU:C:1998:206
• Docket Number: C-390/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 07 May 1998

Avis juridique important

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61996J0390

Judgment of the Court (Fifth Chamber) of 7 May 1998. - Lease Plan Luxembourg SA v Belgian State. - Reference for a preliminary ruling: Rechtbank van eerste aanleg Brussel - Belgium. - Sixth VAT Directive - Car-leasing services - Fixed establishment - Rules governing reimbursement of VAT to taxable persons not established in the territory of the State - Principle of non-discrimination. - Case C-390/96.

European Court reports 1998 Page I-02553

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Tax provisions - Harmonisation of laws - Turnover taxes - Common system of value added tax - Supply of services - Determination of relevant place for tax purposes - `Fixed establishment' within the meaning of the Sixth Directive - Definition - Company hiring out or leasing vehicles to customers established in another Member State

(Council Directive 77/388, Art. 9(1) and (2)(e))

2 Freedom to provide services - Principle of non-discrimination - Tax legislation - Reimbursement of value added tax to taxable persons not established in the territory of the country - National legislation providing for interest payable only from the date of service of notice to pay on the Member State and at a lower rate than that applied to the interest paid to taxable persons established in the territory of that State automatically on the expiry of the statutory time-limit for reimbursement - Not permissible

(EC Treaty, Art. 59; Council Directive 79/1072)

Summary

1 The term `fixed establishment' in Article 9(1) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted in such a way that an undertaking established in one Member State which hires out or leases a number of vehicles to clients established in another Member State does not possess a fixed establishment in that other State merely by engaging in that hiring out or leasing.

When a leasing company does not possess in a Member State either its own staff or a structure which has a sufficient degree of permanence to provide a framework in which agreements may be drawn up or management decisions taken and thus to enable the services in question to be supplied on an independent basis, it cannot be regarded as having a fixed establishment in that State.

Moreover, it is clear from both the wording and the aim of Article 9(1) and 9(2)(e) of the Sixth Directive, and from the case-law of the Court, that neither the physical placing of vehicles at customers' disposal under leasing agreements nor the place at which they are used can be regarded as a clear, simple and practical criterion, in accordance with the spirit of the Sixth Directive, on which to base the existence of a fixed establishment.

2 It is contrary to Article 59 of the Treaty for national rules to provide that taxable persons not established in a Member State, who apply for a refund of value added tax in accordance with the Eighth Directive 79/1072 on the harmonisation of the laws of the Member States relating to turnover taxes, are entitled to interest only from such time as notice to pay was served on that Member State and at a lower rate than that applied to the interest paid to taxable persons established in the territory of that State automatically on the expiry of the statutory time-limit for reimbursement.

Parties

In Case C-390/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Rechtbank van Eerste Aanleg, Brussels, for a preliminary ruling in the proceedings pending before that court between

Lease Plan Luxembourg SA

and

Belgian State

on the interpretation of Article 9(1) of the 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) and of Articles 6 and 59 of the EC Treaty,

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward and J.-P. Puissochet, Judges,

Advocate General: N. Fennelly,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- Lease Plan Luxembourg SA, by L. De Broe and L. Vandenberghe, of the Brussels Bar,

- the Belgian Government, by J. Devadder, General Adviser in the Ministry of Foreign Affairs, External Trade and Cooperation with Developing Countries, acting as Agent, and A. Destrycker, of the Brussels Bar,

- the Luxembourg Government, by R. Heinen, Attaché de Gouvernement in the Ministry of Finance, acting as Agent, and

- the Commission of the European Communities, by B.J. Drijber, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Lease Plan Luxembourg SA, the Belgian Government and the Commission at the hearing on 6 November 1997,

after hearing the Opinion of the Advocate General at the sitting on 18 December 1997,

gives the following

Judgment

Grounds

1 By judgment of 26 November 1996, received at the Court on 2 December 1996, the Rechtbank van Eerste Aanleg (Court of First Instance), Brussels, referred for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 9(1) of the 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; `the Sixth Directive') and of Articles 6 and 59 of the EC Treaty.

2 Those questions were raised in the context of proceedings brought by Lease Plan Luxembourg SA (`Lease Plan'), established in Luxembourg, and the Belgian State concerning reimbursement of the value added tax (`VAT') paid by Lease Plan on the purchase of cars in Belgium and on car maintenance and repairs carried out in Belgium.

3 Article 9(1) of the Sixth Directive provides:

`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...