In Cardpoint GmbH, successor in law to Moneybox Deutschland GmbH (C-42/18), the Advocate General (AG) examined the scope of the exemption for transactions concerning payments and transfers in the context of services relating to the operation of ATMs (or cash point withdrawal machines) provided by the taxpayer (Cardpoint) to a bank. The taxpayer had a contract with a bank pursuant to which it installed the ATMs, equipped them with computer software and hardware and ensured their smooth running.
Noting firstly that a withdrawal from an ATM constitutes a payment and that payments and transfers are to be treated in the same way for the purposes of the exemption, the AG examined the test laid down by the Court in Bookit, (C-607/14), namely whether the supplier assumed liability for changes in the legal and financial situation of the parties to the payment/transfer. The AG opined that none of the activities carried out by Cardpoint fulfilled this criterion and were merely “physical, technical or administrative services”; the services supplied by Cardpoint did not directly entail the act of debiting or crediting an account itself or acting by means of accounting entries in the accounts of the holder. This was the case despite the fact that Cardpoint physically dispensed bank notes since transfer of the legal ownership of the money was contingent on authorization from the bank that issued the card and the transaction's entry in the accounts.
DLA Piper Comment: The AG noted that as banks are increasingly outsourcing the operation of ATMs, the question before him was likely to have significant repercussions. This is an interesting analysis of the ambit of the test laid down in Bookit and applied in subsequent CJEU case law. The AG emphasized that a functional and qualitative approach was necessary and that simply having a large number of aspects to a service around payment transactions, even if some of those aspects were essential for completing an exempt transaction, was not sufficient for the service to fall within the exemption. The policy reasons behind the exemption of avoiding difficulties of determining the taxable amount and avoiding an increase in consumer credit also gave no support to the taxpayer's case.