The ECJ released the preliminary ruling request in the case C-603/24 (Stellantis Portugal).
Context:
Article in the EU VAT Directive 2006/112/EC
Article 2 of the Sixth VAT Directive (Article 2 of the EU VAT Directive 2006/112/EC).
Article 2
1. The following transactions shall be subject to VAT:
(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;
(b) the intra-Community acquisition of goods for consideration within the territory of a Member State by:
(i) a taxable person acting as such, or a non-taxable legal person, where the vendor is a taxable person acting as such who is not eligible for the exemption for small enterprises provided for in Articles 282 to 292 and who is not covered by Articles 33 or 36;
(ii) in the case of new means of transport, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1), or any other non-taxable person;
(iii) in the case of products subject to excise duty, where the excise duty on the intra-Community acquisition is chargeable, pursuant to Directive 92/12/EEC, within the territory of the Member State, a taxable person, or a non-taxable legal person, whose other acquisitions are not subject to VAT pursuant to Article 3(1);
(c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such;
(d) the importation of goods.
Facts
- Corporate Structure and Operations:
- Stellantis Portugal, S.A., formerly General Motors Portugal, Lda (GMP), operates in the motor vehicle trade.
- GMP is part of an economic group involved in manufacturing and distributing vehicles and parts.
- The group includes Original Equipment Manufacturers (OEMs), National Sales Companies/Organizations (NSCs/NSOs), and contract assemblers.
- Business Transactions:
- GMP functions as an NSC/NSO, purchasing vehicles from European manufacturers within the General Motors group.
- These vehicles are resold to independent Portuguese dealers, who then sell them to final customers.
- Dealers handle vehicle repairs for manufacturing defects, warranty issues, and roadside assistance, charging GMP for these services including VAT.
- Financial Adjustments:
- GMP informs European manufacturers of costs incurred in distributing vehicles and parts.
- Costs include vehicle repair costs, operating costs (staff, electricity, marketing).
- An adjustment is made to the vehicle sale price based on these costs, documented by credit or debit notes issued by the European manufacturers.
- Tax Inspection and Dispute:
- A tax inspection was conducted on GMP for the 2006 financial year.
- The inspection found that GMP initially bears after-sales costs and then passes these costs to OEMs.
- The tax authority argued that these transactions should be subject to VAT within Portugal.
- As a result, supplementary VAT assessments were issued to GMP for a total amount of EUR 1,504,215.49.
- Legal Proceedings:
- GMP appealed against the supplementary VAT assessment.
- The Tribunal Central Administrativo Sul upheld the tax authority’s decision.
- GMP further appealed to the Supremo Tribunal Administrativo.
Questions
Must Article 2 of the Sixth VAT Directive (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 worded in the version in force at the time of the facts, be interpreted as meaning that the concept of the supply of services effected for consideration contained in that provision includes an adjustment of the sale price of vehicles which is duly provided for and determined in a contract concluded between the parties, in order to achieve a minimum profit margin, and which is documented by means of a credit or debit note issued to the applicant/appellant by the European manufacturers of the General Motors group?
Summary
The question is whether the concept of “supply of services effected for consideration” includes an adjustment of the sale price of vehicles as provided in a contract to achieve a minimum profit margin, documented by credit or debit notes issued by European manufacturers.
Source
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