Can An Unmanned, Remotely Operated Plant Be A VAT Fixed Establishment? The BFH Asks The CJEU

A German municipality bought dewatering, drying and disposal services for sewage sludge from suppliers established in Austria. The drying plant, located on the municipality’s land, ran largely automatically (hall, automated “Wendewolf” turning device, control equipment), was loaded only three to four times a year, and was monitored and maintained remotely from Austria; on-site work was carried out by a subcontractor. The tax office treated the municipality as liable under the reverse charge (§ 13b UStG); the Fiscal Court of Munich disagreed, holding the plant to be a German fixed establishment of the Austrian supplier. On appeal, the BFH stayed proceedings and referred the matter to the CJEU. The referred question is whether a plant involved in supplying a service constitutes a fixed establishment under Article 192a of the VAT Directive, given the human and technical resources requirement, where the taxable person remotely monitors and maintains it from another Member State and