Telecoms & VAT: “dark fibre”

“Dark fibre” involves the supply of fibre optics strands to a customer who would need connectivity to transmission equipment in order to receive or transmit messages. 

Under the Telecoms Directive the “transfer or assignment of the right to use capacity” is included in the definition of a telecoms service.  Although dark fibre is “unused” capacity (compared to bright fibre which is “used” capacity), with the necessary technical adaptations it could become ready to be used, the transfer or assignment of the dark fibre could be regarded as a telecoms service in the EU. 

However, if the capacity is transferred with the title to the fibres would this become a supply of goods or even immovable property (if the fibres are attached to a fixed object e.g a pipeline), rather than a supply of services?  The VAT implications can be complicated.