Judgment of the Court (Third Chamber) of 19 February 2009 (reference for a preliminary ruling from the Corte suprema di cassazione (Italy)) — Athesia Druck Srl v Ministero delle Finanze, Agenzia delle Entrate

(Case C-1/08) (1)

(Sixth VAT Directive - Article 9(2)(e) - Article 9(3)(b) - Thirteenth VAT Directive - Article 2 - Place where a supply of services is effected - Advertising services - Reimbursement of VAT - Tax representative)

2009/C 90/08

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Athesia Druck Srl

Defendants: Ministero delle Finanze, Agenzia delle Entrate

Re:

Reference for a preliminary ruling — Corte suprema di cassazione (Italy) — Interpretation of Article 9(2)(e) 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) — Advertising services — Determination of the place of supply — Supply of services carried out by an undertaking with its head office in the territory of the Community for an undertaking which is established in a third country but which has a tax representative in the territory of a Member State

Operative part of the judgment

With regard to advertising services, where the recipient of the services is established outside the European Community, the place of supply is, as a rule, according to Article 9(2)(e) 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 Tenth Council Directive 84/386/EEC of 31 July 1984, defined as the place where that recipient has his principal place of business. However, Member States may exercise the option provided in Article 9(3)(b) of Sixth Directive 77/388, as amended, and define the place where the services in question are supplied, by way of derogation from that rule, as within the Member State concerned.

If the option available under Article 9(3)(b) of Sixth Directive 77/388, as amended, is exercised, advertising services provided by a supplier established in the European Community to a customer situated in a non-Member state, whether that customer is the final customer or an intermediate customer, are deemed to be supplied within the European Community, provided that the effective use and enjoyment of the services, within the meaning of Article 9(3)(b) of Sixth Directive 77/388, as amended, take place within the Member State concerned. That is the case, with regard to advertising services, where the advertising material being supplied is disseminated from the Member State concerned.

Advertising services provided by a supplier established outside the European Community for his own clients cannot be liable to VAT under Article 9(3)(b) of Sixth Directive 77/388, as amended, even where that supplier acted in the capacity of intermediate customer in respect of an earlier supply of services, since such a supply of services does not fall within the scope of Article 9(2)(e) of that directive or, in more general terms, Article 9 of the directive as a whole, those being provisions which are expressly referred to in Article 9(3)(b) of that directive.

The fact that the supply of services for the purpose of Article 9(3)(b) of Sixth Directive 77/388, as amended, is subject to value added tax does not preclude the taxable person’s right to the refund of VAT where he satisfies the conditions laid down in Article 2 of Thirteenth Council Directive 86/560/EEC of 17 November 1986 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 Community territory.

Whether a tax representative is appointed does not, of itself, have any effect on whether the services received or provided by the represented person are liable to VAT.

(1)  OJ C 64, 8.3.2008.