San Domenico Vetraria SpA v Agenzia delle Entrate.

• Jurisdiction: European Union
• Celex Number: 62019CJ0094
• ECLI: ECLI:EU:C:2020:193
• Date: 11 March 2020
• Docket Number: C-94/19
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

11 March 2020 (*)

(Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Sixth Council Directive 77/388/EEC — Articles 2 and 6 — Scope — Taxable transactions — Services supplied for consideration — Secondment of staff by a parent company to its subsidiary — Reimbursement by the subsidiary limited to the costs incurred)

In Case C‑94/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Court of Cassation, Italy), made by decision of 27 November 2018, received at the Court on 6 February 2019, in the proceedings

San Domenico Vetraria SpA

v

Agenzia delle Entrate,

supported by:

Ministero dell’Economia e delle Finanze,

THE COURT (Seventh Chamber),

composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and A. Kumin (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the European Commission, by J. Jokubauskaitė and S. Mortoni, 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 Articles 2 and 6 of 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 the principle of the neutrality of value added tax (VAT).

2 The request has been made in proceedings between San Domenico Vetraria SpA and the Agenzia delle Entrate (Revenue Authority, Italy) concerning deductions made by San Domenico Vetraria, in respect of the 2005 tax year, from VAT paid on sums repaid to its parent company, Avir SpA, for the secondment of a director.

Legal context

European Union law

3 Article 2 of the Sixth Directive provides:

‘The following shall be subject to [VAT]:

1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such;

…’

4 The first subparagraph of Article 6(1) of that directive states:

‘“Supply of services” shall mean any transaction which does not constitute a supply of goods within the meaning of Article 5.’

Italian law

5 Under Article 30 of decreto legislativo n. 276 — Attuazione delle deleghe in materia di occupazione e mercato del lavoro, di cui alla legge 14 febbraio 2003, n. 30 (Legislative Decree No 276 implementing delegations in the field of employment and labour markets established by Law No 30 of 14 February 2003) of 10 September 2003 (Ordinary Supplement to GURI No 235 of 9 October 2003):

‘1. The temporary placing, by an employer, of one of more employees at the disposal of another person, for the purpose of carrying out a specific occupational activity in the employer’s own interests, constitutes secondment.

2. In the event of secondment, the employer shall remain legally and financially liable for the worker.’

6 Article 8(35) of legge n. 67 — Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 1988) (Law No 67 laying down provisions for drawing up the annual and pluriannual budget of the State (Finance Law 1988)) of 11 March 1988 (Ordinary Supplement to GURI No 61 of 14 March 1988) (‘Law No 67/88’) provides:

‘The lending or secondment of staff in respect of whom only the related cost is reimbursed shall not be regarded as relevant for the purposes of [VAT].’

The dispute in the main proceedings and the question referred for a preliminary ruling

7 In 2004, Avir...