ECJ ruling

The case concerns a German card issuer that facilitated charging sessions for electric vehicles in Sweden. The card issuer entered into contracts with charge point operators where drivers - on presentation of the EV charging card - could procure a charging session. The operator invoices the charging sessions to the card issuer and the card issuer invoices the charging sessions to the driver. The driver chooses the amount of electricity and the time and place of charging.

The ECJ decides that the card issuer is deemed to be acting as a commissionaire for the charging sessions. The ECJ leaves open whether the card issuer acts as a commissionaire of the operator or of the driver. By applying the VAT commissionaire rule, the card issuer is deemed to purchase the electricity from the operator and to resell that electricity to the driver. This allows the card issuer to recover the input VAT on the purchase of the charging sessions from the tax administration. This approach is in line with Dutch practice which is based on European guidelines and a VAT policy decree.

Difference with fuel cards

The ECJ has ruled in previous cases regarding fuel cards that the fuel supply takes place directly between the fuel station and the driver. The card issuer does not act as an intermediary in the fuel supply according to the ECJ. The ECJ rather interprets the activities of the card issuer as the granting of credit (pre-financing the fuel payments), as a result of which the card issuer cannot reclaim input VAT on fuel purchases. In the Netherlands, this approach is currently not applied and the VAT remains recoverable based on a VAT policy decree. Instead, input VAT incurred on fuel purchases outside the Netherlands normally constitutes a cost for card issuers.

According to the ECJ, the difference between EV charging cards and fuel cards lies in the fact that fuel cards involved advance payments whereby the actual use was settled and invoiced at a later date. The ECJ observes that there is no such credit mechanism with EV charging cards because the card issuer does not receive a fee as a percentage of the amount of electricity supplied. The card issuer instead received a fixed fee for providing access to the charging station network that was independent of the amount of electricity or the number of charging sessions. This raises the question whether a fuel card should, under the same circumstances, not equally be treated as the purchase and on-sale of fuel by the card issuer, rather than the granting of credit.