THE EVOLUTION AND UNCERTAINTIES OF THE FIXED ESTABLISHMENT CONCEPT
THE EVOLUTION AND UNCERTAINTIES OF THE FIXED ESTABLISHMENT CONCEPT

Summary/Abstract: The following paper makes a radiography of the ``fixed establishment`` notion specific to the VAT field, by highlining the requirements that have been attached to this concept by the CJEU in its case-law, having regard also to the specifics of the cases. The analysis shows that the concept’s uncertainty has not been unveiled and, as it results from the working documents of the VAT Expert Group, despite the need of more clarity, it is highly improbably that actions in this regard shall be undertaken by positive measures. The reason is represented by the high factual dependence of this concept. This must be also the reason why, although over the time the CJEU seemed to attach some requirements to the content of this concept, the result of their application is not predictable. In the meantime, the taxable persons and the tax administrations have to face this uncertainty and argue their positions in courts of law. That should not be an effect of a harmonised tax using autonomous concepts. Unfortunately, at this stage, no one can provide clear cut answers on the existence of a fixed establishment; instead, the taxable persons probably must prepare a defence file, taking into consideration what is known until now in this regard.

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