(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Sixth VAT Directive – Article 28b(E)(3) – Services by intermediaries – Place of supply)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services by intermediaries – Determination of the place of fiscal connection by Article 28b(E)(3) of the Sixth Directive – Scope – Principal transaction not subject to value added tax – Not relevant – Determination of the place of the principal transaction – Application of the specific provisions of Article 28b(A) and (B)

(Council Directive 77/388, Art. 28b(A),(B) and (E)(3))

Article 28b(E)(3) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, which provides, by way of derogation from Article 9(1) of the same directive, that the place of the supply of services rendered by intermediaries acting in the name and for the account of other persons, when such services form part of certain transactions, is to be the place where the transaction is carried out, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax.

As follows from its wording, that provision covers generally supplies of services rendered by intermediaries, without distinguishing according to whether or not the recipients of the services are subject to value added tax, and it does not matter, for the purposes of determining the place of an intermediary’s activities, whether the principal transaction is subject to value added tax or whether the transaction is non-taxable.

Moreover, when an intermediary transaction falls within the scope of Article 28b(E)(3), it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the specific provisions of Article 28b(A) and (B). The place of an intra-Community acquisition of goods is governed by the latter provision, which derogates from the general provisions of Article 8 of the Sixth Directive regulating the supply of goods within a Member State.

(see paras 18, 21, 23, 25-26, operative part 1-2)

JUDGMENT OF THE COURT (First Chamber) 27 May 2004 (1)

(Sixth VAT Directive – Article 28b(E)(3) – Services by intermediaries – Place of supply)

In Case C-68/03,

REFERENCE to the Court under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between

on the interpretation of Article 28b 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), as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1),

THE COURT (First Chamber),

composed of P. Jann (Rapporteur), President of the Chamber, A. Rosas, A. La Pergola, R. Silva de Lapuerta and K. Lenaerts, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

– the Netherlands Government, by H.G. Sevenster, acting as Agent,

– the Portuguese Government, by L.I. Fernandes and Â. Seiça Neves, acting as Agents,

– the Commission of the European Communities, by E. Traversa and D.W.V. Zijlstra, acting as Agents,

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

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

According to the Commission, it is not appropriate to restrict the scope of application of Article 28b(E)(3) of the Sixth Directive by departing from its very clear wording, which provides expressly for an exception to the general provisions for the category of intermediary transactions, without distinguishing according to the parties to the contract forming the basis of the transaction. There is no reason to depart from that rule when the underlying contract is a non-taxable transaction. The system of intra-Community trade as a whole, as referred to in Title XVIa of the Sixth Directive, is not confined to trade between professionals.

15The term ‘transactions’ is used in several places in the Sixth Directive to refer to both services between taxable persons and those supplied to individuals, such as in Article 4(3) and (5). A restrictive interpretation of Article 28b(E)(3) of the directive would lead to complex distinctions and would run counter to the principles of simplicity in the treatment of transactions and rational, homogenous taxation.

16The Court notes, as a preliminary point, that as regards the relationship between Article 9(1) and Article 28b(E) of the Sixth Directive, Article 28b(E) provides, with respect to intra-Community trade, for an exception to the general rule in Article 9(1). Article 9(1) in no way takes precedence, therefore, and the question must be asked in each case which of those two provisions applies (see, regarding the similar relationship between Article 9(1) and Article 9(2) of the Sixth Directive, Case C-327/94 Dudda [1996] ECR I-4595, paragraphs 20 and 21).

Since the present case concerns intra-Community trade, Article 28b(E)(3) of the Sixth Directive is, in principle, applicable. It is therefore necessary to consider whether that applicability may be affected by the fact that the object of the intermediary service was a non-taxable transaction.

On this point, the Court notes that it follows from the wording of the first paragraph of Article 28b(E)(3) of the Sixth Directive that it covers generally supplies of services rendered by intermediaries ‘acting in the name and for the account of other persons’, without distinguishing according to whether or not the recipients of the services are subject to VAT.

Likewise, none of the provisions of Title XVIa of the Sixth Directive, under which Article 28b falls, indicates that they do not cover any supplies to individuals not subject to VAT. In addition, as pointed out by the Commission, the term ‘trade between Member States’ used in the wording of that title covers supplies to both taxable and non-taxable persons. The fact that various provisions of that title, like Article 28a, refer to the taxable nature of some transactions has no bearing on the scope of Article 28b, the sole object of which is to determine the place of those transactions.

20As regards the argument of the Netherlands Government that the second subparagraph of Article 28b(E)(3), which refers to customers identified for VAT purposes by an identification number in a Member State other than that within the territory of which those transactions were carried out, suffice it to note that that paragraph, which begins with the word ‘however’, refers to a very specific category of exceptions which has no bearing on the general rule laid down in the preceding paragraph.

As stated by the Advocate General in paragraphs 36 to 40 of his Opinion, for the purposes of determining the place of an intermediary’s activities, it does not matter whether the principal transaction is subject to VAT or whether the transaction is non-taxable.

Lastly, as regards the Netherlands Government’s argument that Article 28b(E)(3) of the Sixth Directive concerns primarily entitlement to VAT deduction which is of no interest to an individual, suffice it to note that nothing in the wording of that provision supports that proposition, since the provision refers only to the determination of the place of the intermediary’s service and in no way to an entitlement to deduction for individuals who are recipients.

Accordingly, it is appropriate to answer the first question as follows: Article 28b(E)(3) of the Sixth Directive is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of VAT.

Second question

By the second question, the national court asks whether, when an intermediary transaction falls within the scope of Article 28b(E)(3) of the Sixth Directive, it is necessary, for the purposes of determining the place where the underlying transaction was carried out, to refer to the general provisions of Article 8 of the Sixth Directive or to the specific provisions of Article 28b of that directive.

Suffice it to note that it follows from the wording of the Sixth Directive that the place of an intra-Community acquisition of goods is governed by Article 28b(A) and (B) of the directive, which derogates from the general provisions of Article 8 regulating the supply of goods within a Member State. A different assessment is not called for in the circumstances of the main case.

Accordingly, the second question is to be answered as follows: when an intermediary transaction falls within the scope of Article 28b(E)(3) of the Sixth Directive, it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the provisions of Article 28b(A) and (B) of that directive.

Costs

27The costs incurred by the Netherlands and Portuguese Governments and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Hoge Raad der Nederlanden by judgment of 14 February 2003, hereby rules:

1.Article 28b(E)(3) 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 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388/EEC with a view to the abolition of fiscal frontiers, is not to be interpreted as meaning that it covers only the services of intermediaries provided to a taxable person or to a non-taxable legal person for the purposes of value added tax.

2.When an intermediary transaction falls within the scope of Article 28b(E)(3) of Sixth Directive 77/388, as amended, it is necessary, for the purposes of determining the place where the transaction underlying the supply of intermediary services was carried out, to refer to the provisions of Article 28b(A) and (B) of that directive.

Jann

Rosas

La Pergola

Silva de Lapuerta

Lenaerts

Delivered in open court in Luxembourg on 27 May 2004.

Registrar

President of the First Chamber

ECLI:EU:C:2025:140

Language of the case: Dutch.