Case C-222/09

Kronospan Mielec sp. z o.o.

v

Dyrektor Izby Skarbowej w Rzeszowie

(Reference for a preliminary ruling from the

Naczelny Sąd Administracyjny)

(Sixth VAT Directive – Article 9(2)(c) and (e) – Research and development work carried out by engineers – Determination of the place where services are supplied)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Supply of services – Determination, for taxation purposes, of the place where services are supplied

(Council Directive 77/388, Art. 9(2)(e))

Services consisting of research and development work relating to the environment and technology, carried out by engineers established in one Member State on a contract basis for the benefit of a recipient established in another Member State, must be classified as ‘services of engineers’ within the meaning of Article 9(2)(e) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, which determines, for taxation purposes, the place where services are supplied in respect of the services of consultants, engineers, consultancy bureaux, lawyers, accountants and other similar services.

Those services must be regarded as being covered by that provision since research and development work constitutes services which are principally and habitually carried out as part of the profession of engineer listed in that provision. That is true of services which are characterised by the fact that they involve not only the application of existing knowledge and procedures to specific problems, but also the acquisition of new knowledge and the development of new procedures designed to resolve those problems or new problems. Furthermore, such activities can be distinguished from those covered by Article 9(2)(c) of the Sixth Directive since the services in question are not provided for a number of different recipients, but are carried out for one single recipient. The fact that the sole recipient of services might find it necessary to sell, to third parties or to undertakings belonging to the same group as that of which it is part, the results of the work which it has commissioned is irrelevant in that regard.

(see paras 20-21, 24-26, 30, operative part)