Case C‑544/16

Marcandi Limited

v

Commissioners for Her Majesty’s Revenue & Customs

(Request for a preliminary ruling from the First-tier Tribunal (Tax Chamber)]

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 2(1)(c) — Issuing of ‘credits’ that can be used to place bids in online auctions — Supply of services for consideration — Preliminary transaction — Article 73 — Taxable amount)

Summary — Judgment of the Court (Fifth Chamber), 5 July 2018

1. Harmonisation of fiscal legislation—Common system of value added tax—Supply of services effected for consideration—Concept—Issuing of ‘credits’ that can be used to place bids in online auctions—Included

   (Council Directive 2006/112, Art. 2(1)(c))

2. Harmonisation of fiscal legislation—Common system of value added tax—Taxable amount—Supply of goods and services—Auctions organised by the taxable person—Delivery of goods for the benefit of users who have won an auction or those who purchased using the ‘buy now’ or ‘earned discount’ features—Consideration obtained in exchange for the delivery of goods made by the taxable person to the users—Concept—Value of the ‘credits’ used to bid—Not included

   (Council Directive 2006/112, Art. 73)

3. Questions referred for a preliminary ruling—Reference to the Court—Obligation to seek a preliminary ruling—Scope—Transaction subject to different tax treatment in two Member States for the purposes of value added tax—Included—Condition—Decision issued by the referring court against which there is no judicial remedy under national law

   (Art. 267 TFEU)

1.  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 issue of ‘credits’, such as those at issue in the main proceedings, which allow an operator’s clients to bid in the auctions that it organises, is a supply of services for consideration, for which the consideration is the amount paid in return for those ‘credits’.

   (see para. 49, operative part 1)

2.  Article 73 of Directive 2006/112 must be interpreted as meaning that, in circumstances such as those in the main proceedings, the value of ‘credits’ used in order to bid is not included in the consideration received by the taxable person in return for the supplies of goods that it makes for the benefit of users who won an auction organised by it, or users who purchased a product using the ‘buy now’ or ‘earned discount’ features.

   (see para. 60, operative part 2)

3.  When interpreting the relevant provisions of EU and national law, courts of a Member State that find that the same transaction has been the object of a different tax treatment for the purposes of VAT in another Member State have the power, or even — depending on whether there is a judicial remedy under national law against its decisions — an obligation, to refer a request for a preliminary ruling to the Court of Justice of the European Union.

   (see para. 66, operative part 3)