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Published: 29 June 2017

On June 29, 2017 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Mengozzi in the Case C-303/16, Solar Electric Martinique SARL versus Ministre des Finances et des Comptes publics (ECLI:EU:C:2017:507) was published.

From introductory remarks made by the Advocate General

The present request for a preliminary ruling, referred by the Conseil d’État (Council of State, France), concerns the interpretation of Article 5(5) and Article 6(1) 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, as amended by Council Directive 95/7/EC of 10 April 1995 (‘the Sixth Directive), and of Article 14(3) and Article 24(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’), which replaced the Sixth Directive with effect from 1 January 2007.

That request was submitted in the context of proceedings between Solar Electric Martinique SARL and the ministre des Finances et des Comptes publics (France) (Minister of Finance and Public Accounts) in respect of the additional assessments of value added tax (VAT) to which it was subject for the period from 1 January 2005 and 31 December 2007.

From the substantive viewpoint, the present case essentially turns on whether the supply and installation of photovoltaic and solar water heating panels on the roof of a building in order to supply that building with electricity or hot water is to be analysed for VAT purposes as a single complex transaction or as a number of separable transactions. That question has its origin in the different VAT rules applicable to the supply and installation of the equipment concerned. While the supply of photovoltaic and solar water heating panels in the French overseas departments enjoys a special exemption arrangement, the installation of that equipment may, under French law, be covered by the expression ‘works of construction’, referred to in Article 5(5) of the Sixth Directive and re-enacted in Article 14(3) of the VAT Directive, which are regarded as supplies of services and subject to VAT at the rate of 8.5%.

Before that issue can be resolved, however, it is necessary to ascertain whether the Court has jurisdiction to answer the referring court’s request. The main proceedings are taking place in Martinique, one of the overseas departments of the French Republic, which, pursuant to Article 3(3) of the Sixth Directive and Article 6(1)(c) of the VAT Directive, are expressly excluded from the scope of those directives.

In fact, for the reasons which will be set out below, I consider that the Court should declare that it lacks jurisdiction to answer the question referred by the Conseil d’État.

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