Titanium Ltd v Finanzamt Österreich, anciennement Finanzamt Wien.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:446
• Docket Number: C-931/19
• Date: 03 June 2021
• Celex Number: 62019CJ0931
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

3 June 2021 (*)

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Articles 43 and 45 – Directive 2006/112/EC, as amended by Directive 2008/8/EC – Articles 44, 45 and 47 – Provision of services – Point of reference for tax purposes – Concept of a ‘fixed establishment’ – Letting a property in a Member State – Owner of a property with its registered office on the island of Jersey)

In Case C‑931/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzgericht (Federal Finance Court, Austria), made by decision of 20 December 2019, received at the Court on 20 December 2019, in the proceedings

Titanium Ltd

v

Finanzamt Österreich, formerly Finanzamt Wien,

THE COURT (Tenth Chamber),

composed of M. Ilešič, President of the Chamber, E. Juhász (Rapporteur) and C. Lycourgos, Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Austrian Government, by A. Posch and F. Koppensteiner and by J. Schmoll, acting as Agents,

– the European Commission, by L. Mantl and R. Lyal, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and Directive 2006/112, as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11, ‘Directive 2006/112, as amended’).

2 The request has been made in proceedings between Titanium Ltd, established in Jersey, and the Finanzamt Österreich, formerly Finanzamt Wien (Tax authority of Austria, formerly tax authority of the city of Vienna, Austria) (‘the tax authority’), concerning the levying of value added tax (VAT) on rental income relating to a property located in Austria for the tax years 2009 and 2010.

Legal context

European Union law

Directive 2006/112

3 Title V of Directive 2006/112, entitled ‘Place of taxable transactions’, included, inter alia, a Chapter 3, entitled ‘Place of supply of services’, which contained Articles 43 to 59 of that directive.

4 Article 43 of Directive 2006/112 provided:

‘The place of supply of services 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.’

5 Article 45 of that directive stated:

‘The place of supply of services connected with immovable property, including the services of estate agents and experts, and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the property is located.’

6 According to Article 193 of Directive 2006/112:

‘VAT shall be payable by any taxable person carrying out a taxable supply of goods or services, except where it is payable by another person in the cases referred to in Articles 194 to 199 and Article 202.’

7 Article 194 of that directive provided that:

‘1. Where the taxable supply of goods or services is carried out by a taxable person who is not established in the Member State in which the VAT is due, Member States may provide that the person liable for payment of VAT is the person to whom the goods or services are supplied.

2. Member States shall lay down the conditions for implementation of paragraph 1.’

8 Article 196 of that directive provided:

‘VAT shall be payable by any taxable person to whom the services referred to in Article 56 are supplied or by any person identified for VAT purposes in the Member State in which the tax is due to whom the services referred to in Articles 44, 47, 50, 53, 54 and 55 are supplied, if the services are supplied by a taxable person not established in that Member State.’

Directive 2006/112, as amended

9 Directive 2008/8 made amendments, with effect from 1 January 2010, to Directive 2006/112, in particular the provisions of that directive found in Chapter 3 of Title V and Article 196 of that directive.

10 Article 44 of Directive 2006/112, as amended, provides:

‘The place of supply of services to a taxable person acting as such shall be the place where that person has established his business. However, if those services are provided to a fixed establishment of the taxable person located in a place other than the place where he has established his business, the place of supply of those services is the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the taxable person who receives such services has his permanent address or usually resides.’

11 Article 45 of that directive provides:

‘The place of supply of services to a non-taxable person shall be the place where the supplier has established his business. However, if those services are provided from a fixed establishment of the supplier located in a place other than the place where he has established his business, the place of supply of those services shall be the place where that fixed establishment is located. In the absence of such place of establishment or fixed establishment, the place of supply of services shall be the place where the supplier has his permanent address or usually resides.’

12 Article 47 of the directive is worded as follows:

‘The place of supply of services connected with immovable property, including the services of experts and estate agents, the provision of accommodation in the hotel sector or in sectors with a similar function, such as holiday camps or sites developed for use as camping sites, the granting of rights to use immovable property and services for the preparation and coordination of construction work, such as the services of architects and of firms providing on-site supervision, shall be the place where the immovable property is located.’

13 Articles 193 and 194 of Directive 2006/112, as amended, are identical to Articles 193 and 194 of Directive 2006/112.

14 Under Article 196 of Directive 2006/112, as amended:

‘VAT shall be payable by any taxable person, or non-taxable legal person identified for VAT purposes, to whom the services referred to in Article 44 are supplied, if the services are supplied by a taxable person not established within the territory of the Member State.’

Implementing Regulation (EU) No 282/2011

15 Recital 14 to Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down...