Destination Principle in Intra-community Services and the ‘Fixed Establishment’ in the VAT. A Comparative Study of Polish and Spanish Law

Abstract:

This article deals with one of the most important and controversial topics in Value Added Tax (VAT): the concept and functions of fixed establishment. Hitherto works have approached the topic from only one perspective: either that of EU law or the national law of the author, obscuring the global nature of it. This two-sided (Polish and Spanish) view in the article intends to bring to the table some of the issues concerning fixed establishment, its role in the location of taxable events and the implementation of VAT principles.

The concept of fixed establishment and its relation to its 'brother', permanent establishment, are considered in the article together with the fact that Polish and Spanish law have different starting points. Whereas in Polish law there have traditionally been two separate notions with two definitely different meanings, only one, 'establecimiento permanente', has been used in Spanish law for both direct and indirect taxes. In Spanish law, one consistent concept has now, through the development of EU law and European Court of Justice (ECJ) cases, produced two different legal ideas under the same name.

At the end, some important conclusions and postulates are formulated. This article serves as an invitation to open the door into 'fixed establishment in the VAT wonderland'.