22.12.2012

Official Journal of the European Union

C 399/5

(Joined Cases C-318/11 and C-319/11) (<span class="super">1</span>)

(Common system of value added tax - Directive 2006/112/EC - Articles 170 and 171 - Eighth VAT Directive - Article 1 - Directive 2008/9/EC - Article 3(a) - Arrangements for the refund of value added tax to taxable persons not established in the territory of the country - Taxable persons established in one Member State and carrying out in another Member State only technical testing or research activities)

2012/C 399/07

Language of the case: Swedish

Referring court

Parties to the main proceedings

Applicants: Daimler AG (C-318/11), Widex A/S(C-319/11)

Defendant: Skatteverket

Re:

Reference for a preliminary ruling — Förvaltningsrätten i Falun — Interpretation of Articles 170 and 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and of Articles 1 and 2 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) and Articles 2, 3 and 5 of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State — Car manufacturer established in Member State A, having made certain acquisitions in Member State B, in order to carry out there, through its subsidiary established in that Member State, endurance tests on its vehicles in winter conditions, with a view to their sale in Member State A — Subsidiary wholly owned by the car manufacturer having the principal objective of providing to the parent company sites, tracks on which to carry out the tests and services connected with the tests inside Member State B, necessary to the commercial activities carried out by the parent company in the Member State where it is established — Whether the car manufacturer has a fixed establishment in Member State B

Reference for a preliminary ruling — Förvaltningsrätten i Falun — Interpretation of Articles 170 and 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and Articles 1 and 2 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) — Company manufacturing hearing aids established in Member State A which has acquired goods and services in Member State B for the needs of its audiology research department situated in that Member State and whose staff is employed by that company — Whether or not the hearing aid manufacturer has a fixed establishment in Member State B

Operative part of the judgment

A taxable person for VAT established in one Member State and carrying out in another Member State only technical testing or research work, not including taxable transactions, cannot be regarded as having in that other Member State a ‘fixed establishment from which business transactions are effected’ within the meaning of Article 1 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, as amended by Council Directive 2006/98/EC of 20 November 2006, and Article 3(a) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State;

The interpretation given to the concept of ‘fixed establishment from which business transactions are effected’ is not called into question, in a situation such as that in the main proceedings, by the fact that the taxable person has, in the Member State where it has applied for refund, a wholly-owned subsidiary, the purpose of which is almost exclusively to supply the person with various services in respect of its technical testing activity.

(1) OJ C 269, 10.9.2011.