Questions referred
1) Is Article 59a(b) of Directive 2006/112/EC, 1 as amended by Article 2 of Directive 2008/8/EC, 2 to be interpreted as meaning that the use of roaming services in a Member State in the form of access to the national mobile telephone network for the purpose of establishing incoming and outgoing connections by a ‘non-taxable end customer’ temporarily resident in that Member State constitutes ‘use and enjoyment’ in that Member State which justifies the transfer of the place of supply from the third country to that Member State, even though neither the mobile telephone operator providing the services nor the end customer are established in Community territory and the end customer does not have his permanent address and does not usually reside in the Community?
2) Is Article 59a(b) of Directive 2006/112, as amended by Article 2 of Directive 2008/8, to be interpreted as meaning that the place of supply of telecommunications services as described in Question 1, which are outside the Community according to Article 59 of Directive 2006/112, as amended by Article 2 of Directive 2008/8, may be transferred to the territory of a Member State even though neither the mobile telephone operator providing the services nor the end customer are established in Community territory and the end customer does not have his permanent address and does not usually reside in the Community, simply because the telecommunications services in the third country are not subject to a tax comparable to VAT under EU law?
Judgement
Article 59a, first paragraph, sub b) of Council Directive 2006/112 / EC of 28 November 2006 on the common system of value added tax, as amended, from 1 January 2010 , by Council Directive 2008/8 / EC of 12 February 2008, must be interpreted as meaning that roaming services provided by a mobile telephone operator, established in a third country, to its customers, who are also established or have their domicile or habitual residence in that third country, allowing them to use the national mobile communications network of the Member State in which they are staying temporarily, must be considered as being the subject of 'use or [of] actual operation 'in the territory of that Member State, within the meaning of that provision, so that that Member State may consider the place of supply of such roaming services as if it were situated in its territory when , regardless of tax treatment al to which these services are subject on the basis of the internal tax law of that third country, the exercise of such a right has the effect of avoiding the non-taxation of such services within the Union.
See documents
- Judgement (French)
- Request for a preliminary ruling (French)