Dec 19

CJEU expected to deliver judgment in Case C-17/18, Mailat (VAT – Meaning of a transfer of a business within the meaning of Articles 19 and 29 of Directive 2006/112/EC)

Questions referred for a preliminary ruling:

1. Does the conclusion of an agreement whereby a company leases a building in which specific catering activities had previously been carried on in a restaurant to another company, together with all capital equipment and inventory items, where the tenant company continues the same catering activities in a restaurant with the same name as was used previously, constitute a transfer of a business within the meaning of Articles 19 and 29 of Directive 2006/112/EC?

2. In the event that Question 1 is answered in the negative, is the transaction described above a supply of services that may be regarded as the letting of immovable property within the meaning of Article 135(1)(l) of [Directive 2006/112/EC], or a supply of complex services that may not be regarded as the letting of immovable property and that is taxable by operation of the law?

Dec 19

CJEU expected to deliver judgment in Case C-422/17, Skarpa Travel (VAT – Payments on account received by a taxable person supplying tourist services, which are taxed under the special scheme for travel agents)

Questions referred for a preliminary ruling:

1. Must [Directive 2006/112] be interpreted as meaning that tax becomes chargeable on payments on account received by a taxable person supplying tourist services, which are taxed under the special scheme for travel agents provided for in Articles 306 to 310 of [Directive 2006/112], at the time defined in Article 65 of [Directive 2006/112]?

2. If the answer to the first question is in the affirmative, must Article 65 of [Directive 2006/112] be interpreted as meaning that, for taxation purposes, a payment on account received by a taxable person supplying tourist services, taxed under the special scheme for travel agents provided for in Articles 306 to 310 of [Directive 2006/112], is reduced by the cost referred to in Article 308 of [Directive 2006/112] actually incurred by the taxable person up to the time when he receives the payment on account?

More information on the opinion in this case as delivered on September 5, 2018 by Advocate General Bobek can be found here

Dec 19

CJEU expected to deliver judgment in Case C-522/17, Alpenchalets Resorts (VAT – Ancillary component? – The special scheme for travel agents)

Questions referred for a preliminary ruling:

1. Is the supply of a service which consists essentially in the provision of holiday accommodation and in which additional service components are to be regarded merely as ancillary to the principal supply, in accordance with the judgment of the Court of Justice of the European Union of 12 November 1992, Van Ginkel (C‑163/91, EU:C:1992:435), subject to the special scheme for travel agents under Article 306 of [Directive 2006/112]?

2. If the first question is answered in the affirmative, can that supply of service also be subject, in addition to the special scheme for travel agents under Article 306 of [Directive 2006/112], to the tax rate reduction for the provision of holiday accommodation, as referred to in Article 98(2) of [Directive 2006/112] in conjunction with Annex III, point (12)

More information on the opinion in this case as delivered on September 5, 2018 by Advocate General Bobek can be found here

Dec 19

CJEU expected to deliver judgment in Case C-51/18, Commission v Austria (VAT – Royalty paid to an author of an original work of art on the basis of the resale right)

Form of order sought

The applicant claims that the Court should:

declare that, by imposing value added tax on the royalty paid to an author of an original work of art on the basis of the resale right, the Republic of Austria has failed to fulfil its obligations under Article 2 of the VAT Directive;

Pleas in law and main arguments

In support of the action, the applicant relies on the following arguments:

1. Austria levies value added tax on the royalties paid to the author of an original artistic work upon its resale, within the framework of the resale right which was introduced in Austria in the transposition of Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art. In doing so, Austria has infringed Article 2 of the VAT Directive.

2. In the context of the resale right, there is no relationship based on an exchange of services between the author and the party which is liable to pay. The share of proceeds to be returned to the author on the basis of the resale right results from the law and is created in such a way that the seller, or whoever else takes part in the resale, is required to pay a royalty to the author, without the author having to perform any sort of service in that respect. The author’s service has already been provided in that respect before the resale, in that the author brought his original work onto the market in the first place.

3. The royalty from the resale right which is to be paid to the author does therefore not represent consideration for any of the services performed by the author, but rather the royalty depends entirely on the price paid in the resale, the amount of which cannot be influenced by the author. The author is entitled to the royalty without having to, or even being able to, undertake any service, either by action or by inaction. Consequently, the royalty from the resale right cannot be regarded as consideration for a supply of goods or services within the meaning of Article 2 of the VAT Directive.