# C_2023216EN.01001401.xml

| 19.6.2023 | EN | Official Journal of the European Union | C 216/14 |
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19.6.2023

EN

Official Journal of the European Union

C 216/14

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Judgment of the Court (Seventh Chamber) of 27 April 2023 (request for a preliminary ruling from the Vredegerecht te Antwerpen — Belgium) — Fluvius Antwerpen v MX

(Case C-677/21, (1) Fluvius Antwerpen)

(Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Taxable transactions - Article 2(1)(a) - Concept of ‘supply of goods for consideration’ - Article 9(1) - Economic activity - Article 14(1) and (2)(a) - Supply of goods - Unlawful consumption of electricity - Principle of neutrality of VAT - Charging the consumer for compensation including the price of the electricity consumed - Regional legislation of a Member State - Taxable person - Sui generis entity mandated by municipalities - Concept of ‘body governed by public law’ - Directive 2006/112/EC - Article 13(1), third subparagraph, and Annex I - Principle of taxability of electricity distribution - Concept of ‘negligible activity’)

(2023/C 216/18)

Language of the case: Dutch

Referring court

Vredegerecht te Antwerpen

Parties to the main proceedings

Applicant: Fluvius Antwerpen

Defendant: MX

Operative part of the judgment

| 1. | Article 2(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, read in conjunction with Article 14(1) of that directive,
  must be interpreted as meaning that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes a supply of goods for consideration entailing the transfer of the right to dispose of tangible property. |
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1.

Article 2(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, read in conjunction with Article 14(1) of that directive,

must be interpreted as meaning that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes a supply of goods for consideration entailing the transfer of the right to dispose of tangible property.

| 2. | Article 9(1) of Directive 2006/112, as amended by Directive 2009/162,
  must be interpreted as meaning that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes an economic activity of that operator inasmuch as it gives rise to a risk inherent in its activity as an electricity distribution network operator. Where that economic activity is carried out by a body governed by public law acting as a public authority, such an activity, referred to in Annex I to that directive, can be regarded as being carried out on such a small scale as to be negligible within the meaning of the third subparagraph of Article 13(1) of that directive only if it is of such minimal scale in space or time and, consequently, of such a slight economic impact that the distortions of competition likely to result are liable to be, if not nil, at the very least insignificant. |
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2.

Article 9(1) of Directive 2006/112, as amended by Directive 2009/162,

must be interpreted as meaning that the supply of electricity by a distribution network operator, even if involuntary and the result of unlawful conduct on the part of a third party, constitutes an economic activity of that operator inasmuch as it gives rise to a risk inherent in its activity as an electricity distribution network operator. Where that economic activity is carried out by a body governed by public law acting as a public authority, such an activity, referred to in Annex I to that directive, can be regarded as being carried out on such a small scale as to be negligible within the meaning of the third subparagraph of Article 13(1) of that directive only if it is of such minimal scale in space or time and, consequently, of such a slight economic impact that the distortions of competition likely to result are liable to be, if not nil, at the very least insignificant.

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(1)  OJ C 84, 21.2.2022.

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