# C_2014045EN.01001101.xml

| 15.2.2014 | EN | Official Journal of the European Union | C 45/11 |
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15.2.2014

EN

Official Journal of the European Union

C 45/11

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Judgment of the Court (Third Chamber) of 28 November 2013 (request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland)) — Minister Finansów v MDDP sp. z o.o. Akademia Biznesu, sp. komandytowa

(Case C-319/12) (1)

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(VAT - Directive 2006/112/EC - Articles 132 to 134 and 168 - Exemptions - Educational services provided on a profit-making basis by bodies governed by private law - Right to deduction)

2014/C 45/19

Language of the case: Polish

Referring court

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Parties to the main proceedings

Applicant: Minister Finansów

Applicant:

Defendant: MDDP sp. z o.o. Akademia Biznesu, sp. komandytowa,

Defendant:

Re:

Re:

Request for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of point (i) of Article 132(1), Article 133, Article 134 and Article 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation providing, contrary to the directive, for exemption from VAT for educational services provided for commercial purposes by bodies governed by private law — Refusal to allow a body which has received such an exemption to deduct input VAT.

Operative part of the judgment

Operative part of the judgment

| 1. | Point (i) of Article 132(1)(i), points (a) to (d) of 133(1) and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude educational services provided for commercial purposes by bodies not governed by public law from being exempt from value added tax. However, point (i) of Article 132(1) of that directive precludes a general exemption of all supplies of educational services, without consideration of the objects pursued by non-public organisations providing those services. |
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1.

Point (i) of Article 132(1)(i), points (a) to (d) of 133(1) and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude educational services provided for commercial purposes by bodies not governed by public law from being exempt from value added tax. However, point (i) of Article 132(1) of that directive precludes a general exemption of all supplies of educational services, without consideration of the objects pursued by non-public organisations providing those services.

| 2. | A taxable person may not claim, in accordance with Article 168 of Directive 2006/112 or the national provision transposing it, a right to deduct input value added tax where, as a result of an exemption provided for by national law in infringement of point (i) of Article 132(1) of that directive, the input supply of its educational services are not subject to value added tax.
  That taxable person may, however, rely on the incompatibility of that exemption with point (i) of Article 132(1) of Directive 2006/112 so that that exemption is not applied to it where, even taking account of the discretion granted to Member States, that taxable person could not objectively be regarded as an organisation having objects similar to those of an educational body governed by public law, within the meaning of that provision, which is to be determined by the national court.
  In the latter case, the educational services supplied by that taxable person will be subject to value added tax and that person could then benefit from the right to deduct input value added tax. |
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2.

A taxable person may not claim, in accordance with Article 168 of Directive 2006/112 or the national provision transposing it, a right to deduct input value added tax where, as a result of an exemption provided for by national law in infringement of point (i) of Article 132(1) of that directive, the input supply of its educational services are not subject to value added tax.

That taxable person may, however, rely on the incompatibility of that exemption with point (i) of Article 132(1) of Directive 2006/112 so that that exemption is not applied to it where, even taking account of the discretion granted to Member States, that taxable person could not objectively be regarded as an organisation having objects similar to those of an educational body governed by public law, within the meaning of that provision, which is to be determined by the national court.

In the latter case, the educational services supplied by that taxable person will be subject to value added tax and that person could then benefit from the right to deduct input value added tax.

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(1)  OJ C 287, 22.9.2012.

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