C-185/01
ECLI:EU:C:2002:515
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AUTO LEASE HOLLAND
OPINION OF ADVOCATE GENERAL LÉGER delivered on 19 September 2002 1
1. By this reference for a preliminary ruling, I — Legal framework the Court of Justice is prompted to inter- pret Articles 5 and 2(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 3. Article 2 of the Sixth VAT Directive taxes — Common system of value added defines the scope of VAT. Article 2(1) tax: uniform basis of assessment. 2 provides:
'The following shall be subject to value added tax:
1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such.' 2. The main action has been brought by Auto Lease Holland BV, 3a leasing com- pany with its registered office in the Netherlands, against the German tax auth- ority. It concerns the authority's refusal to grant Auto Lease a refund of the VAT paid in Germany when its clients — lessees who 4. The terms 'supply of goods' and 'supply have entered into a fuel management agree- of services' to which Article 2 refers are ment with the company — fill up leased defined in Articles 5 and 6 of the Sixth VAT motor vehicles. Directive. Article 5(1) provides that '"[s]upply of goods" shall mean the transfer of the right to dispose of tangible property as owner'. Under Article 6(1), 1 — Original language: French. 2 — OJ 1977 L 145, p. 1 (hereinafter 'the Sixth VAT Directive'). '"[s]upply of services" shall mean any 3 — Hereinafter 'Auto Lease'. transaction which does not constitute a
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supply of goods within the meaning of 8. Article 17 of the Sixth VAT Directive Article 5'. concerns the right to deduct, the keystone of the VAT system. It provides:
5. Articles 8 and 9 of the Sixth VAT Directive concern the place of taxable '2. In so far as the goods and services are transactions. Article 8(1)(b), which deals used for the purposes of his taxable trans- with the supply of goods, provides that, in actions, the taxable person shall be entitled the case of goods not dispatched or trans- to deduct from the tax which he is liable to ported, the place of supply of goods is to be pay: deemed to be the place where the goods are when the supply takes place.
(a) value added tax due or paid in respect of goods or services supplied or to be supplied to him by another taxable 6. Article 9(1) provides: person;
'The place where a service is supplied shall be deemed to be the place where the supplier has established his business or has a fixed establishment from which the service is supplied...'.
3. Member States shall also grant to every taxable person the right to a deduction or refund of the value added tax referred to in paragraph 2 in so far as the goods and services are used for the purposes of: 7. Under Article 11(A)(1)(a) of the Sixth VAT Directive, the taxable amount in respect of supplies of goods or services within the territory of the country is to be 'everything which constitutes the consider- ation which has been or is to be obtained by the supplier from the purchaser, the (a) transactions relating to the economic customer or a third party for such activities as referred to in Article 4(2) supplies...'. carried out in another country, which
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would be eligible for deduction of tax if clients. It also offers the lessee the option of they had occurred in the territory of the entering into a 'fuel management agree- country; ment' with it. Under that agreement, the lessee receives from Auto Lease a so-called 'ALH-Pass' as well as a fuel credit card issued by the German credit card company DKV. That card names Auto Lease as a ...' customer of DKV. It allows the lessee to fill up the leased motor vehicle with fuel and from time to time to purchase oil products individually 'in the name and at the expense of Auto Lease'. DKV regularly submits its account to Auto Lease. Each 9. The arrangements for the refunds pro- month, the lessee pays Auto Lease one vided for in Article 17(3) are established by twelfth of the likely annual petrol costs; at Eighth Council Directive 79/1072/EEC of the year end, the account is then settled 6 December 1979 on the harmonisation of according to actual consumption. He also the laws of the Member States relating to pays Auto Lease a charge in respect of fuel turnover taxes — Arrangements for the management. 6 refund of value added tax to taxable persons not established in the territory of the country. 4 Under that Directive, any taxable person established in a Member State who has paid VAT in respect of services or goods supplied to him in the territory of another Member State may apply to the second State for the refund of that VAT provided, in particular, that he 11. It is apparent from the order for has not supplied any goods or services reference that Auto Lease pays tax in the deemed to be supplied in the territory of Netherlands on the entirety of the leasing that Member State. 5 supplies 'including the fuel costs'. 7
II — Facts and main proceedings 12. In so far as the fuel costs are based on supplies by German undertakings, Auto Lease applied for a refund of the VAT 10. Auto Lease is a leasing company which levied by the German authorities on the makes motor vehicles available to its supplies of fuel effected during the years 1989 to 1993. 4 — O J 1979 L 3 3 1 , p. 11 (hereinafter 'the Eighth VAT Directive'). 5 — Articles 2 and 3 of the Eighth VAT Directive. See also 6 — Order for reference, p. 3. Articles 1 and 4. 7 — Page 3.
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13. The German tax authority, the Bundes- refer the following question to the Court amt für Finanzen, initially granted the for a preliminary ruling: application in respect of the years 1989 to 1991, but then amended the refund decisions by setting the refund at DEM 0 and demanding repayment of the amounts previously refunded. It rejected from the outset the refund applications in respect of the years 1992 and 1993. 'Where a lessee fills up a leased car in the name and at the expense of the lessor at filling stations, is there a supply of fuel by the lessor to the lessee and must tax be paid on this supply at the place of supply within the meaning of Article 8(1)(b) of [the Sixth VAT Directive] or is the "onward supply" 14. The administrative objections lodged included in the lessor's supply of a service by Auto Lease against those decisions were that is taxable under Article 9 of [the Sixth dismissed. At first instance, the Finanzger- VAT Directive]?' icht (Finance Court) (Germany) held that the oil companies had not supplied any fuel to Auto Lease and that, therefore, Auto Lease could not claim a VAT refund. The court therefore dismissed the application.
IV — Purpose of the question referred for a preliminary ruling 15. Auto Lease appealed on a point of law ('Revision') against that judgment to the Bundesfinanzhof (Federal Finance Court), Germany. 17. By its question, the national court seeks to ascertain whether the lessor (Auto Lease) may obtain a refund of the VAT relating to the fuel purchased in Germany by lessees in order to fill up their leased vehicles.
III — The question referred for a prelimi- nary ruling
18. It is clear from the grounds of the order for reference, 8 that the Bundesfinanzhof's reference raises two questions. 16. It was against that background that, by order of 22 February 2001, the Bundesfi- nanzhof decided to stay proceedings and to 8 — Pages 9 and 11.
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19. The first question relates to the inter- supply to the lessee forms part of the pretation of Article 5 of the Sixth VAT leasing service, Auto Lease would be Directive. It seeks to ascertain whether, in entitled to the VAT refund. In that case, it the circumstances of this case, there is a would fall within the scope of the Eighth supply of fuel by the lessor to the lessee VAT Directive since it would have paid the where the lessee fills up the leased car at VAT on the goods supplied to it in filling stations. However, that question Germany and would not carry out any raises the issue whether there was pre- supply of goods or services in that country. viously a supply of fuel by the oil com- It would be in the position of any taxable panies to Auto Lease or whether they person established in one Member State supplied it directly to the lessee. If the oil (Netherlands), who has paid VAT in companies supplied the fuel directly to the respect of goods supplied to him in another lessee and not to Auto Lease, the question Member State (Germany), and who has of how to classify the onward supply supplied no goods or services in the terri- allegedly then effected by Auto Lease to tory of the Member State (Germany) to the lessee does not arise. which he applies for a refund of that VAT.
20. The second question arises only in the event that the oil companies supplied the 22. On the other hand, if the Court finds fuel to Auto Lease. In that case, it needs to that the onward supply to the lessee con- be established whether the onward supply stitutes an independent supply, taxable in by Auto Lease to the lessee is an indepen- Germany, Auto Lease would not be entitled dent supply, taxable in the place where the to the VAT refund. In that case, the con- fuel was when it was supplied (Germany), ditions laid down in the Eighth VAT or whether it forms part of the leasing Directive for conferring entitlement to a service, taxable in the place where the refund would not be fulfilled. In particular, lessor has established its business (Nether- Auto Lease would have carried out a lands). The purpose of the question is taxable transaction in the territory of the therefore to obtain details of the criteria country in which it paid the VAT and for determining whether this is a single would therefore have to follow the normal supply or two independent supplies. procedure for deducting VAT in Germany.
21. The position is as follows. If the Court finds that the oil companies supplied the 23. I shall consider in turn the two ques- fuel to Auto Lease and that the onward tions identified above.
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V — Reply to the questions referred for a because it is he who will in the end pay the preliminary ruling whole price, including the VAT, even if it was initially paid by the leasing company.
The first question
26. It should be pointed out that Article 5 of the Sixth VAT Directive defines supply 24. The first question seeks to interpret the of goods as 'the transfer of the right to term 'supply of goods' contained in dispose of tangible property as owner'. Article 5 of the Sixth VAT Directive. The When considering the question whether national court asks who, the lessor or the 'supply of goods' requires the transfer of lessee, should be regarded as having legal ownership of the goods concerned, the received the supply of fuel effected by the Court replied, in its judgment in Shipping oil companies in a case, like the present and Forwarding Enterprise Safe, 9that the one, in which the lessee fills up the leased term covers any transfer of tangible prop- car 'in the name and at the expense of' the erty by one party which empowers the lessor. other party actually to dispose of it as if he were its owner. It is clear from that judg- ment that 'supply of goods' has a meaning which is more economic 10 than legal. It relates more to the opportunity for the person in receipt of the supply to make use of the goods than to the transfer of actual ownership within the meaning of the civil 25. The national court considers that, in law of the Member States. As the Court the present case, the goods are supplied to held, only an economic definition of the the lessor. This solution stems from the fact that the credit card used by the lessee is in the name of the leasing company, Auto 9 — Case C-320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I-285, paragraph 7. Lease, and that it is apparent from the 10 — González Sánchez, M., 'La entrega de bienes en el IVA', content of the card that he is purchasing the Noticias C.E.E., 1990, N o 57/68, pp. 45 and 47; Herrero de la Escosura, P., El IVA en la jurisprudencia del Tribunal fuel 'in the name and at the expense of' that de Justicia de las Comunidades Europeas, ed. Universidad de Oviedo — Marcial Pons, 1996, Oviedo — Madrid, company. The Commission of the Euro- pp. 58 ro 70; Pérez Herrero, L.M., 'La sexta directiva pean Communities and the German Gov- comunitaria del IVA', Derecho financiero y tributario, Cedecs, Barcelona, 1997, and Terra, B.J.M., and Wattel, ernment take the opposite view. They P., European Tax Law, ed. Kluwer, 1994, Deventer. In 'Harmonisation de fiscalités', Jurisclasseur Europe, fasc. consider that the goods are supplied to 1630, p. 17, Berlin, D., considers, more specifically, that the person to whom it is physically 'supply' should be regarded as a Community concept and, therefore, as independent of the definitions contained in delivered (namely the lessee), a fortiori national laws.
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term is compatible with the objectives of 28. Furthermore, the argument that the the Sixth VAT Directive, since: fuel is supplied to the lessor because it advances the price cannot be accepted. First, it would mean that the fuel was supplied not to the leasing company, but to the German credit card company which first pays the oil companies for it and then settles its account with Auto Lease just as 'This view is in accordance with the Auto Lease does with the lessees. Second, purpose of the directive, which is designed that argument would lead to the con- inter alia to base the common system of clusion, which is surprising to say the least, VAT on a uniform definition of taxable that each time a person purchases goods transactions. This objective might be jeop- using the financing offered by the vendor or ardised if the preconditions for a supply of a third party, those goods are not supplied goods — which is one of the three taxable to him directly, within the meaning of the transactions — varied from one Member Sixth VAT Directive, but are supplied State to another, as do the conditions directly to the supplier of the financing governing the transfer of ownership under service who, after obtaining the goods, civil law.' 11 transfers them back to the purchaser.
27. In the present case, it is therefore necessary to determine to whom, the lessor or the lessee, the oil companies in fact transferred the right actually to dispose of the fuel. In that regard, it seems to me that the power was definitely acquired by the lessee without Auto Lease intervening in any way. In a situation in which, as in this case, the goods are physically delivered into the hands of the lessee who uses them as he thinks fit, it seems contrary to the economic logic of the Sixth VAT Directive to claim that the leasing company had the power, even momentarily, to dispose of the fuel and that it could have transferred that power to the lessee. The lessee purchases 29. The clause in the credit agreement the fuel directly from petrol stations and at under which the lessee purchases the fuel no time does Auto Lease have the power to 'in the name and at the expense of' the decide how the fuel should be used or for lessor does not rebut that conclusion. At what purposes. the very most, the effect of the clause would be to attribute ownership of the fuel to the lessor. However, we have already seen that legal ownership is not a conclusive factor in 11 — Judgment in Shipping and forwarding Enterprise Safe, cited above, paragraph 8. the definition of 'supply of goods' within
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the meaning of Article 5 of the Sixth VAT 31. Contrary to what the national court Directive. appears to state, nor does the Intiem judg- ment 12 invalidate my assessment. In that case, the Court had been asked whether an employer could deduct the VAT on fuel which had not been supplied to him personally, but to his employees. The Court, in the light of the circumstances of the case and, in particular, of the fact that the fuel had been used by the employees exclusively for the purposes of the employer's business, had held that the employer was entitled to deduct the VAT. The national court refers to that judgment and appears to infer that it provides a basis for the view that the oil companies supplied the fuel to Auto Lease and not to the lessees. However, I consider that the line of argument followed by the Court in Intiem is not capable of being applied directly to this case. In Intiem, the question whether 30. Similarly, the fuel management agree- the supply had been made to the employer ment cannot invalidate my assessment. As or the employees had already been settled the Commission and the German Govern- by the national court before it referred to ment have pointed out, that agreement is the Court the question whether it was not a contract for the supply of fuel but is possible to deduct the VAT. Indeed, it is rather a contract to finance the purchase of apparent from Intiem that that question fuel. The lessor does not purchase the fuel had been the subject of discussion during and then sell it on to the lessee; the lessee the proceedings before the national courts purchases the fuel, freely choosing the and that they had rejected the argument quality and quantity and the time of pur- that the fuel had been supplied to the chase. He merely uses the payment facilities employer. Thus, paragraph 6 of the judg- offered by the leasing company. The com- ment states: pany acts like any finance or credit institu- tion and its role should not be distinguished from that played by the credit card com- pany, which nobody claims was in receipt of fuel. Under that agreement, the leasing company merely refunds to the credit card company the price, including VAT, which it pays to the oil companies. Furthermore, in order to make those payments, it is not necessarily required to advance the cor- responding funds, since each month it receives part of the likely annual costs from 'The Hoge Raad rejected the appellant's the lessees. If consumption is lower than complaint that the Gerechtshof had erred in estimated, the leasing company will simply refund the credit card company with the money paid to it by the lessees. 12 — Case 165/86 Intiem [1988] ECR 1471.
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finding that the petrol is supplied directly preliminary ruling was based, namely, that to the appellant's employees but then raised the fuel had been supplied to the the question whether the fact that the employees. I consider, therefore, that the petrol is, according to that finding, directly judgment is not relevant to a reply to the supplied to the... employees precludes the question referred and does not support the deduction by the employer of the value- view that Auto Lease received the supply of added tax payable on that petrol.' 13 fuel.
32. The Court itself summarised in the following terms the question referred to it: 34. On the basis of the foregoing consider- ations, I therefore propose that the Court reply that Article 5 of the Sixth VAT Directive is to be interpreted as meaning that there is not a supply of fuel by the lessor to the lessee where the lessee fills up the leased car at filling stations in circum- stances such as those of the present case.
'[T]he question raised by this case is whether that rule precludes the deduction of value-added tax where goods are pur- chased by a taxable person and, after being supplied to his employees, are used for the undertaking's business purposes.' 14
The second question
33. It follows that, in Intiem, the Court did not have to give a ruling on the question raised in the present case. Nor did it express reservations regarding the premiss on which the question referred for a 35. In view of the reply I suggest should be given to the first question referred for a 13 — Emphasis added. preliminary ruling, the second question 14 — Ibidem, paragraph 12. Emphasis added. becomes devoid of purpose.
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Conclusion
36. I therefore propose that the Court give the following reply to the questions referred by the Bundesfinanzhof:
Article 5 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, is to be interpreted as meaning that there is not a supply of fuel by the lessor to the lessee where the lessee fills up the leased car at filling stations in circumstances such as those of the present case.
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