Keywords
Summary

Keywords

Tax provisions - Harmonization of laws - Turnover taxes - Common system of value added tax - Sixth Directive - Special scheme for travel agents - Determination of the place where services are deemed to be provided for tax purposes - Tour operator established in a Member State supplying services through an agent established in another Member State - Taxation in the Member State where the agent is established - Conditions

(Council Directive 77/388, Art. 26(2))

Summary

Article 26(2) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that, where a tour operator established in one Member State provides services to travellers through the intermediary of a company operating as an agent in another Member State, VAT is payable on those services in the latter State if that company, which acts as a mere auxiliary organ of the tour operator, has the human and technical resources characteristic of a fixed establishment.

Although the place where a supplier's business is established is the main fiscal point of reference, that reference would not lead to a rational result in that it takes no account of the actual place where the tours are marketed. On the other hand, the alternative approach of levying tax at the place of the fixed establishment from which those services are supplied, because it takes account of the possible diversification of travel agents' activities in different places within the Community and avoids the distortions of competition which might arise from reliance on the place where the supplier has established his business, in that undertakings trading in a Member State might be encouraged to establish their businesses in a Member State in which the services in question were exempted, is based on the actual economic situation, which constitutes a fundamental criterion for the application of the common system of value added tax.