Companhia União de Crédito Popular SARL v Autoridade Tributária e Aduaneira.

• Jurisdiction: European Union
• Date: 18 April 2024
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Seventh Chamber)

18 April 2024 (*)

(Reference for a preliminary ruling – Common system of value added tax (VAT) – Directive 2006/112/EC – Scope – Economic activity – Supply of services – Article 135 – Exemptions for other activities – Granting of credit – Sale by auction of pledged goods – Single supply – Distinct and independent supplies – Ancillary or principal supplies)

In Case C‑89/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 25 January 2023, received at the Court on 16 February 2023, in the proceedings

Companhia União de Crédito Popular SA

v

Autoridade Tributária e Aduaneira,

THE COURT (Seventh Chamber),

composed of F. Biltgen, President of the Chamber, N. Wahl and M.L. Arastey Sahún (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Portuguese Government, by P. Barros da Costa, R. Campos Laires and A. Rodrigues, acting as Agents,

– the European Commission, by M. Afonso and M. Herold, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 135(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2 The request has been made in proceedings between Companhia União de Crédito Popular SA (‘CUCP’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) concerning the payment of value added tax (VAT) on transactions relating to the sale by auction of pledged goods in the context of a pawnbroker loan.

Legal context

European Union law

3 Under the second paragraph of Article 1(2) of the VAT directive:

‘On each transaction, VAT, calculated on the price of the goods or services at the rate applicable to such goods or services, shall be chargeable after deduction of the amount of VAT borne directly by the various cost components.’

4 Article 2(1)(a) and (c) of that directive provides:

‘The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…

(c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such’.

5 Article 73 of that directive provides:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

6 Article 78 of that directive states:

‘The taxable amount shall include the following factors:

(a) taxes, duties, levies and charges, excluding the VAT itself;

(b) incidental expenses, such as commission, packing, transport and insurance costs, charged by the supplier to the customer.

For the purposes of point (b) of the first paragraph, Member States may regard expenses covered by a separate agreement as incidental expenses.’

7 Under Article 135(1)(b) of the VAT Directive:

‘Member States shall exempt the following transactions:

…

(b) the granting and the negotiation of credit and the management of credit by the person granting it’.

Portuguese law

The Civil Code

8 Article 666(1) of the Código Civil (Civil Code) provides:

‘A pledge confers on the creditor the right to payment of his or her claim, together with interest, if any, in preference to other creditors, for the value of a movable asset or for the value of claims or other rights not subject to a mortgage, belonging to the debtor or to a third party.’

9 Under Article 1142 of that code:

‘A loan is a contract whereby one party lends money or another fungible asset to the other party and that other party is obliged to return an asset of the same kind and quality’

10 Article 1150 of that code states:

‘The lender may terminate the contract if the borrower fails to pay the interest due.’

The VAT Code

11 Article 1(1)(a) of the Código do Imposto sobre o Valor Acrescentado (Value Added Tax Code; ‘the VAT Code’), in the version applicable to the facts in the main proceedings, provides:

‘The following shall be subject to value added tax:

(a) The supply of goods and of services for consideration within the national territory by a taxable person acting as such.’

12 Article 9(27)(a) and (b) of that code provides:

‘The following shall be exempt from tax:

…

(27) The following transactions:

(a) The granting and the negotiation of credit, in any form, including discount and rediscount transactions, and the administration and management of credit by the person who granted it;

(b) The negotiation and lodging of guarantees, sureties and other guarantees, and the administration and management of credit guarantees by the person who provided them.

13 Article 16 of that code is worded as follows:

‘(1) Without prejudice to paragraphs 2 and 10, the taxable amount in respect of the taxable supply of goods or services shall be equivalent to the value of the consideration received or to be received from the purchaser, the recipient or a third party.

…

(5) The following shall be included in the taxable amount in respect of the taxable supply of goods or services:

(a) taxes, duties, levies and other charges, excluding the value added tax itself.

(b) ancillary expenses charged, such as those relating to commissions, packaging, transport, insurances and advertising incurred on behalf of the client.

…’

Decree-Law No 365/99

14 Article 1(2) of Decreto-Lei n.º 365/99, estabelece o regime jurídico do acesso, do exercício e da fiscalização da actividade de prestamista (Decree-Law No 365/99 setting out the rules governing taking-up, exercising and supervising the activity of lending secured by a pledge), of 17 September 1999, in the version applicable to the facts in the main proceedings (‘Decree-Law No 365/99’), provides:

‘The exercise by a natural or legal person of the activity of providing loans secured by a pledge [‘pawnbroking’] shall be regarded as the activity of a lender.’

15 Article 18(1) of that decree-law states:

‘The redemption of the pledged goods is subject to the prior payment of the principal, the interest and the legal commissions that are due.’

16 Under Article 20(1) of that decree-law:

‘In the event of arrears for a period exceeding three months, the pledged item may be disposed of through a sealed competitive...