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	Číslo (Kód CELEX): Number (CELEX Code):		61994J0231

	Název: Title:		Judgment of the Court (Sixth Chamber) of 2 May 1996. Faaborg-Gelting Linien A/S v Finanzamt Flensburg. Reference for a preliminary ruling: Bundesfinanzhof - Germany. Reference for a preliminary ruling - VAT - Restaurant transactions on board ship - Place of taxable transactions. Case C-231/94.

	Publikace: Publication:		European Court Reports 1996 page I-2395

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		[355] Berkholz Case 168/84 Berkholz [1985] ECR 2251


	Plný text: Fulltext:		Ne

Fakta:
Faaborg-Gleting Linien A/S (“FG-Linien”), established in Denmark,
inter alia
supplies meals for consumption on board ferries providing a scheduled service between the ports of Faaborg (Denmark) and Gelting (Germany). The German Tax authorities regarded the restaurant operations as supplies of goods within the meaning of the Umsatzsteuergesetz (German Law on Trunover Tax, hereinafter “UStG”), which are deemed to be carried out, under Article 8 of the Sixth Council Directive (77/388/EEC)
Of 17 May 1977 on the harmonization 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), hereinafter “the Sixth Directive”.
Article 8(1)(b) of the Sixth Directive provides:
“The place of supply of goods shall be deemed to be (…) in the case of goods not dispatched or transported: the place where the goods are when the supply takes place.”
, at the place where the goods are when the supply takes place. They therefore issued notices of assessment to tax to FG-Lininen in respect of the restaurant transactions which took place during the period in question on the ferry when it was within the geographical scope of the UStG. FG-Linien contended, however, that the restaurant transactions in question constituted supplies of services for the purposes of the UStG, of which supply is deemed, in accordance with Article 9 of the Sixth Directive
Article 9(1) of the Sixth Directive provides:
“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, the place where he has his permanent address or usually resides.”
, to be the place where the supplier has established his business.
Seised with the case on appeal, the Bundesfinanzhof under Article 177 of the Treaty stayed the proceedings and referred to the Court the question (as restated by the Court) whether restaurant transactions constitute supplies of goods within the meaning of Article 5 of the Sixth Directive, which, under Article 8(1)(b), are deemed to be carried out at the place where the goods are when the supply takes place, or whether they are supplies of services within the meaning of Article 6(1), which, under Article 9(1) of the directive, are deemed to be carried out at the place where the supplier has established his business.

Názor soudu a komentář:
Having examined closely the process of restaurant transactions, the Court finds that they are “characterized by a cluster of features and acts, of which the provision of food is only one component and in which services largely predominate” and accordingly regards those transactions as services within the meaning of Article 6(1) of the Directive.
The Court goes on to examine where those services are, under the Sixth Directive, deemed to take place. It recalls that under its established case-law, “according to Article 9(1), the place where the supplier has established his business is a primary point of reference inasmuch as regard is to be had to another establishment from which the services are supplied only if the reference to the place where the supplier has established his business does not lead to a rational result for tax purposes or creates a conflict with another Member State.” [However,] “services cannot be deemed to be supplied at an establishment other than the place where the supplier has established his business unless that establishment is of a certain size and both the human and technical resources for the provision of particular services are permanently present” ( [355]
Berkholz
). Following these guidelines, the Court finds that in the present case the general rule set out in Article 9(1) applies pursuant to which the place where the supplier has established his business is the relevant point of reference for the purposes of turnover taxation.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):