WRITTEN QUESTION E-0864/00 by Marianne Thyssen (PPE-DE) to the Commission. VAT on mandates.
C 374 E/174 Official Journal of the European Communities EN 28. 12. 2000 (2000/C 374 E/204) WRITTEN QUESTION E-0864/00 by Marianne Thyssen (PPE-DE) to the Commission (22 March 2000) Subject: VAT on mandates Article 18(1), second subparagraph, point 3, of the Belgian value added tax (VAT) code stipulates that the execution of contracts concerning ámandatesí is regarded as a service. The Belgian VAT authority infers from this that the activities of a person who has been given a mandate are always liable to VAT, even when that person intervenes in the context of an activity which is exempted by Article 13 of the Sixth Directive, Council Directive 77/388/EEC (1) of 17 May 1977. Article 6 of the Sixth Directive, however, does not define ámandateí as a taxable service. On the contrary, it is clear from the case law of the Court of Justice of the European Communities and, more specifically, from the judgment of 7 June 1977 in Case C 2/95, Sparekassernes Datacenter (SDC) v. Skatteministeriet that the activity of a person who has received a mandate must be exempted if that person himself carries out the activity exempted by Article 13 of the Sixth Directive. On the other hand, it follows from the judgement of the Court of Justice of 25 February 1999 in the case concerning Card Protection (Case C 349/96) that an exemption depends not on the capacity of service supplier but solely on the nature of the service supplied. What is the Commissionís interpretation in this matter? Does it believe that the activities of a person given a mandate are in principle always liable to VAT and thus even when his intervention occurs in the context of an activity which is exempted by Article 13 of the Sixth VAT Directive? (1) OJ L 145, 13. 6. 1977, p. 1. Answer given by Mr Bolkestein on behalf of the Commission (26 April 2000) The carrying out of a mandate for a consideration by a taxable person is incontestably a taxable operation within the meaning of Article 2 of the Sixth VAT Directive 77/388/EEC. Although this activity is not explicitly named in Article 6 of the Sixth Directive, the supply of services is defined there by default: áshall mean any transaction which does not constitute a supply of goodsí. Furthermore, as a general rule, operations upstream of the operations exempted do not benefit from this exemption and must therefore be taxed (judgment of 12 July 1985, case 107/84 Commission v. Germany). On the other hand, it may also happen that the provider of the services under the mandate also carries out operations which are exempt if the beneficiary of the services is not the exempted customer but the party for whose benefit the exemption is intended. However, the Commission considers that these issues must be analysed on a case-by-case basis, taking account of the fact that, since the exemptions are derogations from the general taxation rule, they must be interpreted in a restrictive manner, and therefore a general principle whereby all agents acting on mandates in exempt operations benefit from the exemption can not be drawn from the judgment of 7 June 1997 (case C-2/95 SDC). (2000/C 374 E/205) WRITTEN QUESTION E-0868/00 by Michl Ebner (PPE-DE) to the Commission (22 March 2000) Subject: Boycott of Austrian travellers by taxi drivers in Brussels The Union des Taxis de Bruxellesí has stated that as from today, Wednesday, 8 March 2000, Austrian nationals will no longer be transported. This boycott affects mainly staff and customers of the Austrian embassy, the EU representation and the offices of the federal regions. The reason given is that the majority of taxi drivers are immigrants