ECJ C-282/22 (Dyrektor Krajowej lnformacji Skarbowej) – Judgment – Electricty and services supplied at charging stations are a single/complex supply of goods

On April 20, 2023, the ECJ issued its decision in the case C-282/22 (Dyrektor Krajowej lnformacji Skarbowej).

Context: Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Articles 14, 15 and 24 — Charging points for electric vehicles — Provision of equipment intended for charging electric vehicles , the delivery of the necessary electricity as well as the provision of technical assistance and IT services – Qualification as “delivery of goods” or “provision of services

Articles in the EU VAT Directive

Articles 14(1) and 24(1) of the EU VAT Directive 2006/112/EC.

Article 14 (Taxable transaction – Supply of goods)
1. ‘Supply of goods’ shall mean the transfer of the right to dispose of tangible property as owner.

Article 24 (Taxable transaction – Supply of services)
1. ‘Supply of services’ shall mean any transaction which does not constitute a supply of goods.

Facts

Summary

P. in W. plans to install and operate electric vehicle recharging stations with multi-standard chargers, allowing for both quick and slow charging. Prices will depend on the duration and standard of the charging, with payments made after each session or through an e-wallet. The supply includes access to the charging devices, electricity supply, and technical support. P. in W. plans to create a platform for users to reserve a connector and view transaction history. P. in W. sought a tax ruling to confirm that their activities constitute a supply of services under VAT Law. The tax authority considered the supply of electricity as the principal supply, with other services being ancillary. However, a court annulled the ruling, stating that the primary intention of users is to quickly and efficiently recharge their vehicles, with access to advanced recharging devices being the principal supply. The tax authority has appealed this decision. The three transactions provided by P. in W. are closely linked and constitute a single complex transaction.

Detail

Company P. established in W. (the applicant) requested the Director of the National Tax Information Office, Poland (Dyrektor) in the context of preliminary consultations a preliminary decision concerning value added tax.
The applicant indicated that it intends to start an activity in the field of so-called generally accessible charging stations for electric vehicles. Under this activity, the company will possibly install charging stations and make them available for a fee. Users of electric vehicles will be able to charge their vehicles there at stations with different charging standards and speeds.
According to the company, all the services performed by it for the benefit of the users of the vehicle charging stations should be considered to constitute a single taxable activity, namely a service provided for consideration within the meaning of Article 8(1) u.p.t.u.
The Dyrektor found that the applicant’s position was incorrect.

Considerations of the Polish court to ask prelimiary questions:

According to the case-law of the Court, each transaction must normally be regarded as distinct and independent, but the transaction consisting in economic terms of a supply must not be artificially disassembled, otherwise the proper functioning of the VAT system would be affected. The first three components of the company’s performance are indispensable for charging the vehicle, as they are closely linked. Consequently, the supply of electrical energy and the provision of charging equipment, including the necessary technical support, must be regarded as a single transaction for VAT purposes in the circumstances of the present case.

The activities that make up the fourth part (making available a specialized platform, a specialized website or a specialized application for reserving a specific connector, consulting the overview of previous transactions and payments, and using a so-called e-wallet) are no longer closely related to the charging of a vehicle, although in carrying out this operation, as ancillary activities, they can undoubtedly constitute a major facilitation for customers.

In order to determine whether the said complex transaction is to be classified as a supply of goods or as a service, it is necessary to determine its predominant elements. The question to be answered is what, for the average consumer, is the predominant element of the contested act.

In view of the importance of the issue at issue not only for national charging station operators but also for the Union market as a whole (including as regards the determination of the place of performance of those acts), the referring court considers that the is important in order to ascertain how the contested supply must be classified in the light of the VAT Directive, namely as a supply of goods within the meaning of Article 14(1) of the VAT Directive or as a service in the meaning of Article 24(1) of this Directive.

Questions

Are the activities provided at charging points for users of electric vehicles, consisting of:

a) making charging equipment available (including integrating the charger used with the control system of the vehicle concerned),

b) supplying electrical energy with the required parameters for the batteries of electric vehicles;

c) providing the necessary technical support for the vehicle users,

d) making a specialized platform, a specialized website or a specialized application available to users for reserving a specific connector, consulting the overview of previous transactions and payments, and using a so-called e-wallet to to pay amounts due for the different charging sessions

– to be regarded supplies of goods within the meaning of Article 14(1) of the EU VAT Directive or services within the meaning of Article 24(1) of this Directive?

AG Opinion

None

Decision

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009,

must be interpreted as meaning that a single complex supply which encompasses:

– access to recharging devices for electric vehicles (including integration of the charger with the vehicle operating system);

– the supply of electricity, within duly adjusted parameters, to the batteries of that vehicle;

– the necessary technical support for the users concerned; and

– the provision of IT applications enabling the user concerned to reserve a connector, view his or her transaction history, and purchase credits which are then accumulated in an e-wallet and used to pay for recharging sessions

constitutes a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112, as amended.

Summary

Directive 2006/112/EC on value added tax should be interpreted as including a single and complex supply of goods, which consists of access to charging equipment for electric vehicles, transmission of electricity, technical assistance, and provision of computer applications for users to reserve connectors, consult transaction history, buy credits, and pay for recharges.

Source

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