ECJ C-90/20 (Apcoa Parking) – AG Opinion – VAT due on controlling fees for violation of private parking regulations

On June 3, 2021, the ECJ issued the AG Opinion in the case C-90/20 (Apcoa Parking vs Denmark). The case deals with the question if fees for controlling a private parking are subject to VAT.

Article in the EU VAT Directive

2(1)(c) of Council Directive 2006/112/EC – Taxable transaction

Article 2
1. The following transactions shall be subject to VAT:
(c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such;——-

Facts

Apcoa Parking Danmark A/S (hereafter Apcoa) is a private company that operates parking facilities in private areas in agreement with the site owner. Apcoa lays down conditions for the use of the parking areas, e.g. on banning parking without permit, maximum parking time and payment for parking. If the terms are violated, Apcoa charges a special “control fee”.

At the driveway to the parking areas in question, a sign is put up with this text: “Violation of the regulations may result in a control fee of 510 kr. ” or “Violation of the provisions may result in a check charge of 510 DKK / day ”(amounts stated at the 2008 and 2009 levels). There is also stated: “The area is run by private law.”

The present case concerns whether Apcoa is liable to pay VAT on the control fees. It is not disputed that Apcoa is liable to pay VAT on any payment for parking, which is done in accordance with the regulations.

In its decision, the court listed the 13 situations in which Apcoa the charged control fee. This can vary from “Not enough fee paid” to “Valid parking ticket not visible”.

Questions

Must Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax ¹ be interpreted as meaning that control fees for infringement of regulations on parking on private property constitute consideration for a service supplied and that there is therefore a transaction subject to VAT?

AG Opinion

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the remuneration received by a trader in consideration for the provision of a parking space, the amount of which is determined by him on the basis of the conditions of use of the car park, must be regarded as consideration for a service rendered for consideration and as such be subject to that tax.

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