Guiding principles
Payments made to an entrepreneur as reimbursement of expenses on the basis of copyright warnings to enforce his right to cease and desist are to be qualified under VAT law as remuneration in the context of a VATable exchange of services between the entrepreneur and the infringer warned by him. The national civil law basis on which the payment claim is based is irrelevant to the question of whether there is an exchange of services under VAT law.
If – as in the case of warnings – it is not a question of participation in a competition and the payments are not made to achieve a specific competitive result, the possible uncertainty of a payment is not suitable to break the direct link between the service provided to the recipient and the payment received, if any.
Tenor
On the plaintiff’s appeal and the defendant’s cross appeal, the judgment of the Berlin-Brandenburg Fiscal Court dated November 30, 2016 7 K 7078/15 is set aside.
The action is dismissed.
The applicant is ordered to pay the costs of the entire proceedings.
Facts of the case
I.
1
The plaintiff, appellant and cross-appeal defendant (plaintiff), a GmbH & Co. KG, is a producer of sound recordings and holder of exploitation rights to sound recordings, in particular the right of making available to the public pursuant to Section 19a of the German Copyright Act (Urheberrechtsgesetz, UrhG) in the version applicable in 2010 (year in dispute).
2
She instructed a law firm to take action against the unlawful distribution of the sound recordings on the Internet, to assert claims for injunctive relief and compensation against the infringers out of court on her behalf and to conclude settlement agreements with infringers.
To this end, the law firm was also authorized to enforce claims for information against so-called providers on behalf of the plaintiff.
3
In letters addressed to the infringers, the law firm clarified the legal situation with regard to its obligation to pay damages, cease and desist and provide information as well as its obligation to reimburse legal fees and court costs as well as expenses in connection with the provision of information by the provider pursuant to Section 101 para.
2 and para.
9 UrhG and offered to refrain from pursuing these claims in court in return for the signing of a cease-and-desist declaration with penalty clause and payment of a lump sum of EUR 450 (net).
4
As a result, payments totaling EUR 416,245.85 were received from infringers in a third-party account managed by the law firm in the year in dispute.
5
For its activities and for the technical, personnel and other infrastructure it provided, the law firm received 75% of all payments from infringers from the plaintiff in accordance with the agreement.
According to the agreement, this fee was to be plus
VAT at the statutory rate and invoiced on a monthly basis.
6
On the basis of a special VAT audit for the first three quarters of the year in dispute, the auditor of the tax office responsible at the time (FA X) came to the conclusion that the cease-and-desist proceedings conducted by the plaintiff through the law firm led to an exchange of services between the plaintiff and the respective infringer.
7
Contrary to this view, the plaintiff declared a remaining VAT of EUR 39,373.36 in the VAT return for the year in dispute. In doing so, it assumed that the amounts received from the infringers were not taxable. The plaintiff deducted the VAT of EUR 63,333.21 shown in the law firm’s invoices as input tax.
8
In line with the auditor’s opinion, FA X set the VAT for the year in dispute at EUR 32,785.79 in a decision dated November 23, 2011.
The FA X rejected the objection directed against this as unfounded in an objection decision dated March 25, 2015.
9
In the subsequent legal proceedings, there was a legal change of parties, so that the defendant, defendant on appeal and cross-appeal (the tax office –FA–) became responsible for the taxation of the plaintiff.
10
The Berlin-Brandenburg Fiscal Court (Finanzgericht – FG) partially upheld the claim in its ruling of November 30, 2016 7 K 7078/15 (Entscheidungen der Finanzgerichte –EFG– 2017, 240).
It ruled that the plaintiff’s warnings to infringers were not subject to VAT.
However, in return, the input VAT deduction from the services of the law firm commissioned was to be denied.
11
With its appeal, the plaintiff alleges a violation of substantive law (§ 15 para. 1 no. 1 sentence 1 of the German VAT Act –UStG–).
The FA has lodged a cross appeal.
12
The plaintiff applies,
annul the judgment of the tax court dated November 30, 2016, set the VAT for 2010 at EUR 33,673.36, amending the VAT assessment dated November 23, 2011 in the form of the opposition decision dated March 25, 2015, and reject the FA’s cross appeal as unfounded. It proposes that the following questions be referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling:
“1. Is the finding of the CJEU in Case C-37/16 – SAWP – that the fair compensation in favor of the holders of reproduction rights does not constitute the direct equivalent of any service, since the compensation is related to the harm suffered by the rightholders as a result of the reproduction of their protected works without their authorization? is it transferable to cases of the present kind where a person illegally infringes the copyright of a rightholder, the rightholder uses the assistance of a lawyer to defend himself against that infringement, who issues a warning letter and demands compensation from the infringer for the costs incurred by that lawyer in defending against that infringement, to which he has a statutory right?
(2) Is the performance character of a warning letter from the rightholder to be denied in cases of the present kind, since it is still uncertain at the time of the warning letter whether the rightholder is entitled to compensation for the lawyer’s fees for the warning letter, since this claim for compensation only exists in the event of a justified warning letter, which the rightholder cannot assess with certainty at the time of the warning letter?”
13
The FA applies,
dismiss the appeal as unfounded, set aside the preliminary ruling and dismiss the action.
Reasons for the decision
II.
14
The appeal and the cross-appeal are well-founded; they lead to the reversal of the previous decision and to a decision on the merits (Section 126 (3) sentence 1 no. 1 of the German Fiscal Court Code – FGO–).
The tax court wrongly considered the warnings to enforce the claim for injunctive relief to be non-taxable.
In return, the plaintiff must be granted input tax deduction.
The action must therefore be dismissed.
15
According to § 1 Abs. 1 no. 1 sentence 1 UStG, deliveries and other services that an entrepreneur carries out in Germany for consideration as part of their business are subject to VAT.
16
a) For the existence of a supply for consideration, which, in accordance with Art. 2 para.
1 lit. a and c of Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax (VAT Directive) pursuant to sec. 1 para.
1 no. 1 sentence 1 UStG, the following principles, which have been clarified under EU law, must essentially be taken into account according to the case law of the ECJ, which the Federal Fiscal Court (BFH) has endorsed:
There must be a direct link between the service and the consideration received, whereby the amounts paid represent the actual consideration for an identifiable service provided within the framework of a legal relationship between the supplier and the recipient in which reciprocal services are exchanged (cf. e.g. ECJ judgments Société thermale d’Eugénie-les-Bains of July 18, 2007 C-277/05, EU:C:2007:440, BFH/NV 2007, Supplement 4, 424, para. 19; Cesky rozhlas of June 22, 2016 C-11/15, EU:C:2007:440, BFH/NV 2007, Supplement 4, 424, para. 19). June 2016 C-11/15, EU:C:2016:470, Umsatzsteuer-Rundschau –UR– 2016, 632, para. 21 et seq.; SAWP of January 18, 2017 C-37/16, EU:C:2017:22, UR 2017, 230, para. 25 et seq.; Meo – Serviços de Comunicações e Multimédia of November 22, 2018 C-295/17, EU:C:2018:942, Höchstrichterliche Finanzrechtsprechung –HFR– 2019, 58, para. 39; BFH rulings of June 30, 2010 XI R 22/08, EU:C:2018:942, Höchstrichterliche Finanzrechtsprechung –HFR– 2019, para. June 2010 XI R 22/08, BFHE 231, 248, BStBl II 2010, 1084, para. 11 f.; of March 20, 2013 XI R 6/11, BFHE 241, 191, BStBl II 2014, 206, para. 24 f.; of December 21, 2016 XI R 27/14, BFHE 257, 154, para. 16, in each case with further references).
17
It is primarily determined by the legal relationship underlying the service whether the service of the entrepreneur is linked to the payment in such a way that it is aimed at obtaining a consideration (payment) (see BFH judgments of 18 December 2008 V R 38/06, BFHE 225, 155, BStBl II 2009, 749, under II.3.a bb, para. 30; in BFHE 231, 248, BStBl II 2010, 1084, para. 13; in BFHE 241, 191, BStBl II 2014, 206, para. 25; in BFHE 257, 154, para. 17).
18
The question of whether the payment of a consideration is made in return for the provision of services is a question of Union law that must be decided in accordance with Union law principles, irrespective of the assessment under national law.
For the interpretation of the provisions of the VAT Directive, it is irrelevant whether an amount is to be regarded as a claim for damages or as a contractual penalty under national law and how it is designated (see ECJ judgment in Meo – Serviços de Comunicações e Multimédia, EU:C:2018:942, HFR 2019, 58, para. 68 f.; BFH judgment in BFHE 257, 154, para. 29, in each case with further references).
19
b) A supply for consideration is generally deemed to exist if the supplier takes on a task on behalf of the recipient of the supply and in this respect acts in return for reimbursement of expenses (see e.g. BFH rulings of April 11, 2002 V R 65/00, BFHE 198, 233, BStBl II 2002, 782, under II.1.; of November 27, 2008 V R 8/07, BFHE 223, 520, BStBl II 2009, 397, under II.1.b, para. 20; of April 24, 2013 XI R 7/11, BFHE 241, 459, BStBl II 2013, 648, para. 21).
The same applies if an entrepreneur acts for another as a managing director without a mandate and can demand reimbursement of his expenses from him in accordance with Section 683 of the German Civil Code (BGB) (see BFH rulings of January 16, 2003 V R 92/01, BFHE 201, 339, BStBl II 2003, 732, under II.2.a, para. 16; in BFHE 257, 154, para. 18).
20
c) Compensation or damages payments, on the other hand, do not constitute consideration within the meaning of VAT law if the payment is not made for a delivery or other service to the payer, but because the payer is liable for the damage and its consequences under the law or contract (see BFH rulings of December 10, 1998 V R 58/97, BFH/NV 1999, 987, under II.1., para. 18; in BFHE 231, 248, BStBl II 2010, 1084, para. 14; in BFHE 241, 191, BStBl II 2014, 206, para. 26; of January 16, 2014 V R 22/13, BFH/NV 2014, 736, para. 20; in BFHE 257, 154, para. 19).
21
Contrary to the opinion of the tax court, the plaintiff made taxable supplies to the infringers; the previous decision must therefore be set aside.
22
a) Pursuant to Section 97 para.
1 sentence 1 UrhG, the infringed party has a claim for injunctive relief against the infringer in the event of unlawful copyright infringement and a risk of repetition.
Prior to initiating legal proceedings for injunctive relief, the infringer should, pursuant to § 97a para.
1 sentence 1 UrhG, the infringed party should warn the infringer and give him the opportunity to settle the dispute by submitting an obligation to cease and desist with an appropriate contractual penalty.
According to § 97a para.
1 sentence 2 UrhG, reimbursement of the necessary expenses can be demanded if the warning is justified.
23
In addition to the claim for injunctive relief, the infringed party also has a claim for damages against the infringer pursuant to Section 97 para.
2 sentence 1 UrhG against the infringer acting intentionally or negligently also has a claim for compensation for the resulting damage.
24
b) A warning is the notification by the infringed party to the infringer that the infringer has committed a copyright infringement through a specifically designated act, combined with a request to refrain from this behavior in the future (BTDrucks 16/5048, 48).
The warning is regularly accompanied by the threat of legal action in the event of non-delivery (Specht in Dreier/Schulze, UrhG, 6th ed., § 97a Rz 6; Jan Bernd Nordemann in Fromm/Nordemann, UrhG, 12th ed., § 97a Rz 7).
25
aa) The judicial institute of the warning letter, modeled on the competition law provision in Section 12 para.
1 of the Act against Unfair Competition (UWG) was standardized for the area of copyright law in § 97a para.
1 UrhG (see BTDrucks 16/5048, 48).
Instead of the claim for reimbursement of costs previously derived from the point of view of management without mandate (§§ 683 sentence 1, 677, 670 BGB; see judgments of the Federal Court of Justice –BGH– of July 17, 2008 I ZR 219/05, Gewerblicher Rechtsschutz und Urheberrecht –GRUR– 2008, 996, para. 11; of September 28, 2011 I ZR 145/10, Zeitschrift für Urheber- und Medienrecht 2012, 34, para. 11), § 97a para.
2 UrhG contains an express basis for claims for reimbursement of the necessary expenses.
26
bb) The purpose of the warning is primarily to eliminate and cease the infringing act (BTDrucks 17/13057, 11).
To this end, it is intended to draw the infringer’s attention to his infringing conduct and warn him of impending court proceedings (warning function), work towards an out-of-court settlement of the dispute (dispute resolution function) and avoid costly litigation (cost avoidance function; see Specht in Dreier/Schulze, loc. cit, § 97a Rz 3; Wimmers in Schricker/Loewenheim, Urheberrecht, 5th ed., § 97a Rz 5 f.; Jan Bernd Nordemann in Fromm/Nordemann, op. cit., § 97a Rz 1; Spindler in Spindler/Schuster, Recht der elektronischen Medien, 3rd ed., UrhG § 97a Rz 3).
27
A justified warning, in which the specific acts of infringement and the authority of the person issuing the warning are set out, serves the objective interest and presumed will of the infringer in that the rights holder who first issues a warning, instead of immediately bringing an action or applying for an interim injunction, gives the infringer the opportunity to avert a legal dispute in a cost-effective manner by submitting a cease-and-desist declaration with a penalty clause.
The claim for reimbursement of the costs of the warning is based on this consideration (BGH judgments of June 1, 2006 I ZR 167/03, GRUR 2007, 164, para. 12; of January 21, 2010 I ZR 47/09, GRUR 2010, 354, para. 8; of June 11, 2015 I ZR 7/14, GRUR 2016, 184, para. 57).
28
c) In accordance with the principles of the present case law, the plaintiff has, with the warnings, shown the infringers a way to indemnify them as the creditor of a claim for injunctive relief without recourse to the courts and has thus provided them with a concrete advantage that leads to consumption within the meaning of the common VAT law (see BFH judgments in BFHE 201, 339, BStBl II 2003, 732, under II.2.a, para. 17 f.; in BFHE 257, 154, para. 27, with further references).
The warnings are therefore taxable.
29
d) It is irrelevant that, according to the plaintiff’s warning letters, the payments are limited to the reimbursement of the lawyer’s fees for the warning letter, the lawyer’s fees and court costs for a court application pursuant to Section 101 para.
9 UrhG and the reimbursement of expenses paid to the provider pursuant to § 101 para.
2 sentence 3 UrhG and a compensation payment due to the copyright infringement should be waived.
This is because the question of whether there is an exchange of services in the sense of VAT law is not to be answered according to civil law, but exclusively according to the VAT law requirements shaped by Union law (see ECJ judgment Meo – Serviços de Comunicações e Multimédia, EU:C:2018:942, HFR 2019, 58, para. 68 f.; on the problem in the UWG: BFH judgment in BFHE 257, 154, para. 29, with further references).
Whether the asserted claims (in part) in addition to sec. 97a para.
2 UrhG can also be asserted (in the case of intentional or negligent acts) in the context of a claim for damages pursuant to § 97 para.
2 UrhG (see BGH ruling of March 22, 2018 I ZR 265/16, GRUR 2018, 914, para. 26, with further references) is irrelevant in this respect.
The taxable remuneration for the warning party’s service includes all payments received for this, i.e. also the reimbursement of investigation costs to identify the infringer (e.g. court costs of the judicial authorization procedure pursuant to Section 101 (9) sentence 5 UrhG as well as costs for the information provided by the internet provider pursuant to Section 101 (2) sentence 3 UrhG; see BTDrucks 16/5048, 49; Jan Bernd Nordemann in Fromm/Nordemann, loc. cit, § 97a para. 42; Specht in Dreier/Schulze, loc. cit., § 97a para. 13).
30
e) The plaintiff’s objection that there is a mere saving of expenses or that there are monetary payments which, due to the lack of a consumable benefit, cannot be qualified as a supply within the meaning of sec. 1 para.
1 no. 1 UStG (see Hummel, UR 2017, 901, 907) does not apply.
31
aa) The warning letter not only gives the person being warned the opportunity to satisfy the warning party’s monetary claims as inexpensively as possible, but also brings the infringement to their attention (possibly for the first time) and – by specifically naming the infringed right and proving the right holder’s authorization – provides the necessary information to fulfill the (non-monetary) injunctive relief claim by means of a declaration to cease and desist with a penalty clause.
Accordingly, only if these minimum requirements are met is it a justified warning notice that triggers a claim for reimbursement of costs (BGH judgments of May 12, 2016 I ZR 1/15, GRUR 2016, 1275, para. 20, 24, with further references; of July 26, 2018 I ZR 64/17, GRUR 2018, 1044, para. 10; cf. expressly Section 97a para. 3 sentence 1 UrhG in the version applicable since 2013).
32
bb) In this respect, the warning letter is also not comparable to a judicial dunning procedure (see also Hummel, UR 2017, 901, 907 with regard to opposition proceedings; Streit/Rust, Deutsches Steuerrecht –DStR– 2018, 1321, 1322), in which the reminder is not taxable in return for reimbursement of reminder costs (BFH ruling of 11 May 1995 V R 86/93, BFHE 177, 563, BStBl II 1995, 613, under II.1., margin no. 13; Meyer in Offerhaus/Söhn/Lange, Section 1 UStG margin no. 154; Tehler in Reiß/Kraeusel/Langer, UStG Section 10 margin no. 105; BeckOK UStG/Peltner, 20th ed. 15.01.2019, UStG Section 1 margin no. 95.9; Nieskens in Rau/Dürrwächter, Umsatzsteuergesetz, Section 1 margin no. 853).
This is because a reminder is sent for a payment whose basis for the claim is already known to the defaulting debtor.
33
f) Contrary to the plaintiff’s view, the fact that the injured party also has an interest in the warning, in particular with regard to the risk of legal costs, does not prevent the warning from being classified as a service (see also Hummel, UR 2017, 901, 903; Radeisen, Die Steuerberatung 2018, 494, 501).
34
aa) It is true that the warning – without it being a prerequisite for litigation (Section 97a (1) UrhG: “shall”) – also helps the infringed party.
In this way, he can avoid a lawsuit.
Above all, however, the prior warning protects him from the risk of bearing the costs according to § 93 of the Code of Civil Procedure (Wimmers in Schricker/Loewenheim, loc. cit., § 97a Rz 8; Specht in Dreier/Schulze, loc. cit., § 97a Rz 3; Kefferpütz in Wandtke/ Bullinger, Urheberrecht, 4th ed., UrhG § 97a Rz 2).
In addition, depending on the constellation of the case, the warning notice can also be a means of clarifying the facts of the case, as it can give the necessary emphasis to a request for information (BGH ruling in GRUR 2018, 914, para. 19 et seq.).
35
bb) However, the assumption of an exchange of services is not precluded if the entrepreneur (also) realizes its own purpose with the activity (BFH ruling of 22 April 2015 XI R 10/14, BFHE 250, 268, BStBl II 2015, 862, para. 22), as the motives for establishing the exchange of services do not call into question the connection required for the exchange of services (cf. ECJ judgment Landboden-Agrardienste of December 18, 1997 C-384/95, EU:C:1997:627, UR 1998, 102, para. 20; BFH judgment of May 28, 2013 XI R 32/11, BFHE 243, 419, BStBl II 2014, 411, para. 43, with further references).
In this respect, it is also irrelevant whether the plaintiff’s conduct towards the warned parties is an abuse of rights (see BGH decision of February 8, 2017 1 StR 483/16, GRUR 2017, 1046, para. 12; BGH decision of May 31, 2012 I ZR 106/10, GRUR 2013, 176, para. 20 f.).
36
g) Contrary to the opinion of the tax court and the plaintiff, there are no differences between warnings due to competition law infringements and copyright infringements that are relevant to the decision.
37
It is true that the infringed copyright is an absolute and individual right for which – due to the specific infringement – the identification of the infringer, who is not always the connection owner, may be more complex. However, warning letters do not differ in their essential content in the case of an infringement of competition law and in the case of copyright infringement.
The warning letter serves the same purpose in both cases insofar as the request to submit a cease-and-desist declaration with a penalty clause opens up the possibility of avoiding a lawsuit and the claim for reimbursement of costs is based on a (specially codified by law) management without mandate (Düsseldorf Regional Court, decision of 23. October 2017 2a O 135/17, juris, para. 5; Friedrich-Vache in Reiß/Kraeusel/Langer, UStG Section 1 para. 163.2; Omsels, juris PraxisReport Wettbewerbsrecht 6/2017 note 1; Pörksen, juris PraxisReport IT-Recht 13/2017 note 5; a.A. Streit/Rust, DStR 2018, 1321, 1322; Pull/Streit, Mehrwertsteuerrecht 2018, 108, 114).
38
h) This view is not contradicted by the ECJ judgments Cesky rozhlas (EU:C:2016:470, UR 2016, 632) and SAWP (EU:C:2017:22, UR 2017, 230).
39
In contrast to the cases decided by the ECJ, a legal relationship exists between the plaintiff and the infringers through the management without mandate (see BFH judgments in BFHE 201, 339, BStBl II 2003, 732, under II.2.b, para. 19; in BFHE 241, 459, BStBl II 2013, 648, para. 20 f.; in BFHE 257, 154, para. 24).
40
Furthermore, the warning letter aimed at enforcing the claim for injunctive relief neither sanctions a copyright infringement (see also Birkenfeld, Umsatzsteuer-Handbuch, Section 3 (9) para. 90) nor compensates for any damage, but rather grants the infringer an advantage due to the warning, dispute resolution and cost avoidance effect of the warning letter.
Accordingly, the reimbursement of costs to be paid is not calculated according to the so-called license analogy (see BGH ruling of 30 March 2017 I ZR 124/16, Zeitschrift für Urheber- und Medienrecht – Rechtsprechungsdienst 2018, 68, para. 21 f.), but according to the object value of the injunctive relief claim.
41
The plaintiff also provided this service in return for payment. Contrary to the plaintiff’s opinion, nothing else results from the fact that when the warning letter is sent, it is not certain whether the addressee is actually the infringer.
42
a) Pursuant to Section 10 para.
1 sentence 2 UStG in the new version of the VAT Act applicable to the year in dispute, as published on February 21, 2005 (BGBl I 2005, 386), remuneration is generally everything that the recipient of the service spends in order to receive the service, but less VAT.
43
According to the established case law of the ECJ and the BFH, a “supply for consideration” requires the existence of a direct link between a supply and the consideration actually received by the taxable person.
To this end, there must be a legal relationship between the supplier and the recipient within the framework of which reciprocal services are exchanged, whereby the remuneration received by the supplier constitutes the actual consideration for the service provided to the recipient (cf.
inter alia ECJ rulings Tolsma of
March 3, 1994 C-16/93, EU:C:1994:80, HFR 1994, 357, para. 13 and 14; Gemeente Borsele of May 12, 2016 C-520/14, EU:C:2016:334, HFR 2016, 664, para. 24; Lajver of June 2, 2016 C-263/15, EU:C:2016:334, HFR 2016, 664, para. 24). June 2016 C-263/15, EU:C:2016:392, HFR 2016, 665, para. 26; BFH judgments of August 30, 2017 XI R 37/14, BFHE 259, 175, para. 19; of August 2, 2018 V R 21/16, BFHE 262, 548, para. 22, with further references).
44
b) It is true that the ECJ ruled in the Bastova judgment of 10 November 2016 C-432/15 (EU:C:2016:855, UR 2016, 913) and subsequently the BFH (see BFH judgments in BFHE 259, 175, para. 25; in BFH/NV 2019, 174, para. 23; BFH decision of 25 July 2018 XI B 103/17, DStR 2019, 507, para. 10) that participation in a competition is not a service provided for consideration if neither an entry fee nor any other form of remuneration is paid for participation. July 2018 XI B 103/17, DStR 2019, 507, para. 10) that participation in a competition is not a service provided for consideration if neither an entry fee nor any other direct remuneration is paid for participation and only participants with a successful placement receive prize money, even if this is fixed in advance, as the uncertainty of a payment is likely to break the direct link between the service provided to the recipient and any payment received.
45
c) However, the present case is not comparable with these cases.
46
aa) It is neither a question of the plaintiff’s participation in a competition, nor were the payments made to the plaintiff for the achievement of a certain competition result.
Rather, there is a direct connection between the remuneration paid and the warning service, just as there is with the fee of the law firm acting for the plaintiff in the case of a “successful” warning and with an intermediary acting for a success commission (cf. e.g. ECJ judgments Ludwig of June 21, 2007 C-453/05, EU:C:2007:369, UR 2007, 617, para. 15 et seq.; baumgarten sports & more of November 29, 2018 C-548/17, EU:C:2018:970, UR 2019, 70, para. 30 et seq.)
47
bb) In addition, the payment by the rightly warned infringers is neither voluntary nor coincidental (see ECJ judgments Tolsma, EU:C:1994:80, HFR 1994, 357, para. 19; Cibo Participations of September 27, 2001 C-16/00, EU:C:2001:495, BFH/NV 2002, Supplement 1, 6, para. 43).
48
Since the plaintiff’s warning services constitute transactions subject to VAT, the plaintiff is entitled to the input VAT deduction – granted by the FA and denied by the tax court – in accordance with § 15 para. 1 sentence 1 no. 1 sentence 1 UStG from the VAT shown in the law firm’s invoices for its activities in this context.
49
The matter is ready for decision. There is no dispute between the parties regarding the amount of sales and the deductible input tax amounts. No other legal errors in the contested decision have been submitted or are otherwise apparent.
50
In the opinion of the Senate, there are no doubts within the meaning of Art. 267 of the Treaty on the Functioning of the European Union (TFEU) regarding the interpretation of the provisions of Union law applicable in the case in dispute (cf. on the requirements: ECJ judgments CILFIT of October 6, 1982 C-283/81, EU:C:1982:335, Neue Juristische Wochenschrift –NJW– 1983, 1257, para. 21; Intermodal Transports of September 15, 2005 C-495/03, EU:C:2005:552, HFR 2005, 1236; Ferreira da Silva e Brito et al. of September 9, 2015 C-160/14, EU:C:2015:565, Europäische Zeitschrift für Wirtschaftsrecht 2016, 111, para. 38 et seq.). A duty of referral pursuant to Art. 267 para. 3 TFEU therefore does not exist (see in general e.g. decisions of the Federal Constitutional Court of August 30, 2010 1 BvR 1631/08, NJW 2011, 288, under B.II.1.; of September 6, 2016 1 BvR 1305/13, Neue Zeitschrift für Verwaltungsrecht 2017, 53, para. 7; of October 6, 2017 2 BvR 987/16, NJW 2018, 606, para. 4 et seq.; BFH ruling of June 13, 2018 XI R 20/14, BFHE 262, 174, BStBl II 2018, 800, para. 79, with further references).
51
a) Firstly, the principles of the ECJ decision SAWP (EU:C:2017:22, UR 2017, 230) cited by the plaintiff are not transferable to the present case (see II.2.h).
52
b) On the other hand, the principles of taxability and the direct link between the supply and the consideration – even in the case of uncertainty of a payment – have been clarified as a matter of legal principle (cf. ECJ judgments Tolsma, EU:C:1994:80, HFR 1994, 357, para. 13 f.; Cibo Participations, EU:C:2001:495, BFH/NV 2002, Supplement 1, 6, para. 43; Bastova, EU:C:2016:855, UR 2016, 913, para. 28 f.).
The application of these principles to the respective individual case is a matter for the national court (see ECJ judgments Saudaçor of October 29, 2015 C-174/14, EU:C:2015:733, UR 2015, 901, para. 33; Bastova, EU:C:2016:855, UR 2016, 913, para. 30).
53
The decision on costs follows from Section 135 para. 1 FGO.