EQ v Administration de l'Enregistrement, des Domaines et de la TVA.

JurisdictionEuropean Union
ECLIECLI:EU:C:2021:277
Date15 April 2021
Docket NumberC-846/19
Celex Number62019CJ0846
CourtCourt of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

15 April 2021 (*)

(Reference for a preliminary ruling – Value added tax (VAT) – Directive 2006/112/EC – Economic activity – Supply of services for consideration – Article 2(1)(c) and Article 9(1) – Exemptions – Article 132(1)(g) – Supply of services closely linked to welfare and social security work – Services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity – Body recognised as being devoted to social wellbeing)

In Case C‑846/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal d’arrondissement (District Court, Luxembourg), made by decision of 20 November 2019, received at the Court on 21 November 2019, in the proceedings

EQ

v

Administration de l’Enregistrement, des Domaines et de la TVA,

THE COURT (Third Chamber),

composed of A. Prechal (Rapporteur), President of Chamber, N. Wahl, F. Biltgen, L.S. Rossi and J. Passer, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Luxembourg Government, by C. Schiltz and T. Uri, acting as Agents,

– the European Commission, initially by R. Lyal and N. Gossement, and subsequently by R. Lyal, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 January 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 9(1) and Article 132(1)(g) 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 EQ and the administration de l’Enregistrement, des Domaines et de la TVA (the Registration, Land and VAT Authority, Luxembourg) (‘the Luxembourg tax authority’) concerning the imposition of value added tax (VAT) on the supply of services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity entrusted to him in pursuance of the law by the competent judicial authority.

Legal context

EU law

3 Article 2(1)(c) of the VAT Directive provides:

‘The following transactions shall be subject to VAT:

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

4 Under Article 9(1) of that directive:

‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.’

5 According to Article 24(1) of the VAT Directive:

‘“Supply of services” shall mean any transaction which does not constitute a supply of goods.’

6 Article 25 of the VAT Directive is worded as follows:

‘A supply of services may consist, inter alia, in one of the following transactions:

(a) the assignment of intangible property, whether or not the subject of a document establishing title;

(b) the obligation to refrain from an act, or to tolerate an act or situation;

(c) the performance of services in pursuance of an order made by or in the name of a public authority or in pursuance of the law.’

7 Under Article 73 of the directive:

‘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.’

8 Article 131 of that directive, which is the only article in Chapter 1, entitled ‘General provisions’, of Title IX, itself entitled ‘Exemptions’, states:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

9 Chapter 2 of Title IX of the VAT Directive, that chapter being entitled ‘Exemptions for certain activities in the public interest’, comprises Articles 132 to 134 thereof.

10 In accordance with Article 132(1)(g) of the directive, Member States are to exempt the following transactions:

‘the supply of services and of goods closely linked to welfare and social security work, including those supplied by old people’s homes, by bodies governed by public law or by other bodies recognised by the Member State concerned as being devoted to social wellbeing’.

11 Subparagraph (a) of the first paragraph of Article 133 of that directive provides:

‘Member States may make the granting to bodies other than those governed by public law of each exemption provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1) subject in each individual case to one or more of the following conditions:

(a) the bodies in question must not systematically aim to make a profit, and any surpluses nevertheless arising must not be distributed, but must be assigned to the continuance or improvement of the services supplied’.

12 Article 134 of the VAT Directive provides:

‘The supply of goods or services shall not be granted exemption, as provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1), in the following cases:

(a) where the supply is not essential to the transactions exempted;

(b) where the basic purpose of the supply is to obtain additional income for the body in question through transactions which are in direct competition with those of commercial enterprises subject to VAT.’

Luxembourg law

13 Article 4(1) of the loi du 12 février 1979 concernant la taxe sur la valeur ajoutée (Law of 12 February 1979 on value added tax), in the version applicable to the dispute in the main proceedings (‘the Law on VAT’), provides:

‘“Taxable person” under Article 2 shall mean any person who independently and regularly carries out transactions that form part of any economic activity, whatever the purpose, results or location of that activity …’

14 Under Article 5 of the Law on VAT:

‘“Economic activity” shall mean any activity aimed at generating income, and in particular activities of producers, traders and persons supplying services, including mining and agricultural activities, the activities of the professions and activities involving the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis.’

15 According to Article 15(1) of that law:

‘1. “Supply of services” shall mean any transaction which does not constitute a supply or an intra-Community acquisition or an importation of goods.

That transaction may consist in the assignment of intangible property, the obligation to refrain from an act or to tolerate an act or situation and the performance of a service in pursuance of the law or in pursuance of an order made by or in the name of a public authority.

…’

16 Under Article 44(1)(o) of the Law on VAT:

‘The following shall be exempted from [VAT] within the limits and under the conditions to be laid down by Grand-Ducal Regulation:

(o) the supply of services and of goods closely linked to social security, welfare or public health, carried out by bodies governed by public law, mutual investment funds, public bodies or those of public interest, care homes, old peoples’ homes, gerontological or geriatric institutions, hospital or charitable organisations and other similar private sector institutions, where those bodies are recognised by the competent public authorities as being devoted to social wellbeing;

…’

17 Article 3 of the règlement grand-ducal du 23 décembre 1982 fixant les conditions de désignation d’un gérant de la tutelle (Grand Ducal Regulation of 23 December 1982 laying down the conditions for the appointment of a guardianship manager) provides:

‘The guardianship judge may award to the guardianship manager remuneration, the amount or the method of calculation of which he shall determine, by reasoned decision, taking into account the financial position of the person lacking legal capacity.

That remuneration shall consist in either a fixed amount, a percentage of the income of the person lacking legal capacity or a fee fixed according to the duties performed.

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

18 EQ has been a member of the Luxembourg Bar (Luxembourg) since 1994. Since 2004 he has been representing adults in his capacity as agent, curator and guardianship manager.

19 By VAT adjustment notices of 19 January 2018, relating to 2014 and 2015, confirmed by decision of 4 June 2018 on an objection, the Luxembourg tax authority determined of its own motion the amounts of VAT payable by EQ for those years, starting from the premiss that those representation activities constituted a supply of services subject to VAT.

20 EQ brought an action before the referring court, seeking annulment of the decision of 4 June 2018, arguing, inter alia, that the activities which he had carried out, during the period at issue, in the protection of adults did not constitute economic activities, that those activities were in any event exempt from VAT under the national provision transposing Article 132(1)(g) of the VAT Directive and that the Luxembourg tax authority had accepted, from 2004 until 2013, that those activities were not subject to VAT, with the result that making them now subject to VAT for 2014 and 2015 constitutes a...

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16 practice notes
  • MOMTRADE RUSE LTD v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
    • European Union
    • Court of Justice (European Union)
    • 11 May 2023
    ...asistencia social y en la seguridad social (sentencia de 15 de abril de 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, apartado 59 y jurisprudencia 60 Por otra parte, el Tribunal de Justicia ha declarado que, en principio, están directamente re......
  • Opinion of Advocate General Kokott delivered on 10 November 2022.
    • European Union
    • Court of Justice (European Union)
    • 10 November 2022
    ..., EU:C:2020:919 ), apartado 52. 11 Sentencias de 15 de abril de 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277 ), apartado 40; de 27 de marzo de 2014, Le Rayon d’Or ( C‑151/13 , EU:C:2014:185 ), apartado 34, y de 7 de octubre de 2010, Loyalty......
  • Opinion of Advocate General Kokott delivered on 13 July 2023.
    • European Union
    • Court of Justice (European Union)
    • 13 July 2023
    ...director who was also the sole shareholder. 8 Judgment of 15 April 2021, Administration de l'Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 47); similarly judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:202......
  • Opinion of Advocate General Kokott delivered on 1 December 2022.
    • European Union
    • Court of Justice (European Union)
    • 1 December 2022
    ...( C‑141/00 , EU:C:2002:473 , punto 57). 11 Sentenze del 15 aprile 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277 , punto 69), dell’8 ottobre 2020, Finanzamt D ( C‑657/19 , EU:C:2020:811 , punto 43), del 21 gennaio 2016, Les Jardins de Jouvenc......
  • Request a trial to view additional results
15 cases
  • MOMTRADE RUSE LTD v Direktor na Direktsia „Obzhalvane i danachno-osiguritelna praktika“ Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
    • European Union
    • Court of Justice (European Union)
    • 11 May 2023
    ...asistencia social y en la seguridad social (sentencia de 15 de abril de 2021, Administration de l’Enregistrement, des Domaines et de la TVA, C‑846/19, EU:C:2021:277, apartado 59 y jurisprudencia 60 Por otra parte, el Tribunal de Justicia ha declarado que, en principio, están directamente re......
  • Opinion of Advocate General Kokott delivered on 10 November 2022.
    • European Union
    • Court of Justice (European Union)
    • 10 November 2022
    ..., EU:C:2020:919 ), apartado 52. 11 Sentencias de 15 de abril de 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277 ), apartado 40; de 27 de marzo de 2014, Le Rayon d’Or ( C‑151/13 , EU:C:2014:185 ), apartado 34, y de 7 de octubre de 2010, Loyalty......
  • Opinion of Advocate General Kokott delivered on 13 July 2023.
    • European Union
    • Court of Justice (European Union)
    • 13 July 2023
    ...director who was also the sole shareholder. 8 Judgment of 15 April 2021, Administration de l'Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 47); similarly judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:202......
  • Opinion of Advocate General Kokott delivered on 1 December 2022.
    • European Union
    • Court of Justice (European Union)
    • 1 December 2022
    ...( C‑141/00 , EU:C:2002:473 , punto 57). 11 Sentenze del 15 aprile 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277 , punto 69), dell’8 ottobre 2020, Finanzamt D ( C‑657/19 , EU:C:2020:811 , punto 43), del 21 gennaio 2016, Les Jardins de Jouvenc......
  • Request a trial to view additional results

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