Opinion of the Advocate General — ECLI:EU:C:2016:157
Date: 2016-03-10
Language of the case: French
Subject matter: Taxation;Value added tax;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Belgium

summary: postal services (subparagraph (a)), various health and health-related services (subparagraphs (b) to (e) and (p)), associations of persons carrying out exempt activities (subparagraph (f)), welfare and social security (subparagraph (g)), the welfare and education of children and young people (subparagraphs (h) to (j)) together with their sporting activities (subparagraph (m)), religious, cultural and related activities (subparagraphs (k), (l) and (n)), fund-raising for the activities referred to in subparagraphs (b), (g) to (i) and (l) to (n) (subparagraph (o)) and activities carried out by public radio and television bodies (subparagraph (q)). 106. Some of the activities in question are exempted on condition that they be non-profit-making (see, for example, subparagraphs (g) and (h)), while other activities are capable of being carried on for commercial purposes (see, for example, subparagraph (j)). In some cases, there is a requirement that no distortion of competition is likely to arise (subparagraphs (f), (l) and (o)). 107. To the extent that it can be said that there is some kind of thread linking those activities, it could be observed that they fall into four groups, namely public communication, health and welfare, education and culture in the broad sense. There is no basis on which it can be said, globally, that the services of lawyers fall within, or are in competition with or indeed are similar to, (38) any of the broad groups described above, still less within any of the activities that are listed in detail. 108. In any event, to consider that activities other than those listed and described in Article 132(1) should benefit from exemption by analogy would imply a fundamental change to the case-law that ‘the terms used to specify those exemptions are to be interpreted strictly, since the exemptions constitute exceptions to the general principle that VAT is to be levied on all services applied for consideration by a taxable person’. (39) 109. It follows in my view that there are no grounds for considering that the fact that the services of lawyers are not included in the list set out in Article 132(1) of the VAT Directive involves different treatment of similar situations. Conclusion 110. In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Cour constitutionnelle (Constitutional Court, Belgium) to the following effect: (1) On a proper construction of Article 371 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, a Member State which, in accordance with that provision, has continued to exempt the supply of services by lawyers from VAT, may limit the scope of that exemption without abolishing it in its entirety. However, having once abolished the exemption in its entirety, such a Member State may not reintroduce the same exemption with a more limited scope. (2) Neither Article 132(1)(g) nor any other provision of Directive 2006/112 authorises Member States to exempt from VAT the supply of services by lawyers under a national legal aid scheme as services which are closely linked to welfare and social security work. (3) Examination of the questions referred has disclosed nothing capable of affecting the validity of Directive 2006/112. 1 Original language: English. 2 Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1). 3 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1). 4 Signed at Rome on 4 November 1950. All the Member States are signatories to the ECHR, but the European Union has not yet acceded as such; see Opinion 2/13, EU:C:2014:2454. 5 Adopted on 16 December 1966 by the General Assembly of the United Nations, United Nations Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407. All Member States of the European Union are parties to the Covenant, which entered into force on 23 March 1976. 6 Signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1). It was implemented in EU law by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing-up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17). 7 OJ 2010 C 83, p. 389. 8 Exemptions under Articles 135 and 136 are not in issue in the present case. 9 Until 1 January 2007, the same provisions were contained in Article 28(3)(b) of, and Annex F to, the Sixth VAT Directive. 10 That is to say, advocates (avocats/advokaten). The services of notaries and bailiffs had also been exempt until 31 December 2011, when that exemption was abolished. 11 Loi du 30 juillet 2013 portant des dispositions diverses. 12 See, for example, the website of the Ordre des barreaux francophones et germanophone, http://www.avocats.be/fr/combien-ça-coûte. 13 Judgment in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 45 to 47. 14 See judgments in Kerrutt, 73/85, EU:C:1986:295, paragraph 17; Norbury Developments, C‑136/97, EU:C:1999:211, paragraph 19; and Idéal tourisme, C‑36/99, EU:C:2000:405, paragraph 32. See also, by way of analogy, judgment in Danfoss and AstraZeneca, C‑371/07, EU:C:2008:711, paragraphs 24 to 44 (concerning the comparable possibility of maintaining exclusions from the right to deduct input VAT). 15 See, for example, judgment in Žamberk, C‑18/12, EU:C:2013:95, paragraphs 17 to 20 and the case-law cited. 16 Judgment in Commission v France, C‑492/08, EU:C:2010:348. 17 Judgment in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 36 to 41 and the case-law cited. 18 Judgment in Commission v France, C‑492/08, EU:C:2010:348, paragraphs 43 to 47. 19 It is true that the ECHR and the ICCPR have not been formally incorporated into the law of the Union (see judgment in Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45 and the case-law cited). However, the fact that the meaning and scope of the rights guaranteed by the Charter are the same as those of the same rights guaranteed by the ECHR has led the Court consistently to refer to the latter and to the case-law of the Strasbourg Court when interpreting the Charter. Moreover, the Court has pointed out that, in the field of human rights, the ECHR has special significance and the ICCPR is among the international instruments of which it takes account in applying the general principles of the law of the Union (see, for example, judgment in Parliament v Council, C‑540/03, EU:C:2006:429, paragraphs 35 to 38 and the case-law cited). 20 Whilst such an approach reaches the same result, from the State’s point of view, as charging VAT and feeding the amounts collected back into the legal aid system, I have some doubts as to whether it is compatible with the VAT Directive. In addition to being formally incompatible, it might also affect the collection of the Union’s own resources, which include a percentage of the harmonised VAT assessment bases (see Article 2(b) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17)). However, that issue is not raised in, or relevant to, the national court’s questions in the present case. 21 The legal aid schemes in the Member States vary enormously in terms of funding and cover. See, for example, Study on the functioning of judicial systems in the EU Member States, Facts and figures from the CEPEJ 2012-2014 evaluation exercise, produced by the European Commission for the Efficiency of Justice (CEPEJ), from which it appears that in 2012 Austria’s legal aid budget was EUR 2.25 per inhabitant, totalling rather less than the State’s income from court fees or taxes, whereas Sweden’s budget was EUR 24.74 per inhabitant, of which only 1% was covered by court fees or taxes. However, such matters are, as the law of the Union currently stands, entirely a matter for each Member State, provided that the Charter, the ECHR and the case-law of the Strasbourg Court are respected; see, for example, recital 48 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1). 22 See, for example, judgment in Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, § 186, ECHR 2014. 23 See, for example, order in GREP, C‑156/12, EU:C:2012:342, paragraph 35 et seq. and operative part. See also, as regards the right to an effective remedy laid down in Article 47 of the Charter, judgment in Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 49. 24 Article 446 ter of the Belgian Judicial Code. 25 See the website of the Ordre des barreaux francophones et germanophone, http://www.avocats.be/fr/combien-ça-coûte. 26 Thus, the Study on the Transparency of Costs of Civil Judicial Proceedings in the European Union completed for the European Commission in December 2007 indicates that average hourly pre-tax rates for lawyers’ fees in Belgium were between EUR 100 and EUR 250 (see https://e-justice.europa.eu/content_costs_of_proceedings-37-en.do). In 2015, consultation of a number of lawyers’ websites indicates basic hourly rates outside Brussels which appear to vary between at least EUR 80 and EUR 150, while a recent news item concerning a Brussels law firm employed by the Belgian Government indicated that the firm’s rates were between EUR 225 and EUR 600 per hour, after discounts but before tax (see http://www.rtbf.be/info/belgique/detail_la-ministre-galant-appelee-a-s-expliquer-a-la-chambre-sur-ses-frais-d-avocats?id= 9120926). 27 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40); see footnote 6 above. The fifth paragraph of Article 10a requires procedures to be ‘fair, equitable, timely and not prohibitively expensive’. 28 Judgment in Edwards and Pallikaropoulos, C‑260/11, EU:C:2013:221, paragraph 36 et seq. and operative part. 29 Judgment in Commission v United Kingdom, C‑530/11, EU:C:2014:67, paragraph 55. 30 See, for example, judgment in Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraphs 54 and 55 and the case-law cited. 31 See, for example, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, no. 14448/88, § 33, Series A no. 274; Ankerl v. Switzerland, 23 October 1996, § 38, Reports of Judgments and Decisions 1996-V; Kress v. France [GC], no. 39594/98, § 72, ECHR 2001; and Komanický v. Slovakia, no. 32106/96, § 45, 4 June 2002. In its analysis of the principle of equality of arms, the Court of Justice has adopted an identical position: see judgments in Otis and Others, C‑199/11, EU:C:2012:684, paragraph 71, and Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 31. 32 For example, where: one party’s appeal was not served on the other party (Beer v. Austria, no. 30428/96, § 19, 6 February 2001); time had ceased to run against one of the parties only (Platakou v. Greece, no. 38460/97, § 48, ECHR 2001-I; Wynen v. Belgium, no. 32576/96, § 32, ECHR 2002-VIII); only one of the two key witnesses was permitted to be heard (Dombo Beheer B.V. v. the Netherlands, 27 October 1993, no. 14448/88, §§ 34 and 35, Series A no. 274); one party enjoyed significant advantages as regards access to relevant information, occupied a dominant position in the proceedings and wielded considerable influence with regard to the court’s assessment (Yvon v. France, no. 44962/98, § 37, ECHR 2003-V); or one of the parties held positions or functions which put them at an advantage and the court made it difficult for the other party to challenge them seriously by not allowing it to adduce relevant documentary or witness evidence (De Haes and Gijsels v. Belgium, 24 February 1997, no. 19983/92, §§ 54 and 58, Reports of Judgments and Decisions 1997-I). 33 Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59 to 72, ECHR 2005-II. 34 Although the defendants met the general financial criteria for the grant of legal aid, defamation proceedings were in principle excluded from the legal aid system and a discretionary power to grant such aid in exceptional cases was not exercised. 35 See, for a recent example, judgment in Jetair and BTW-eenheid BTWE Travel4you, C‑599/12, EU:C:2014:144, paragraph 53. 36 See point 52 above. 37 C‑434/05 and C‑445/05, EU:C:2007:149, point 64. 38 See, in that regard, judgment in Marks & Spencer, C‑309/06, EU:C:2008:211, paragraph 49, where the Court observed that ‘although infringement of the principle of fiscal neutrality may be envisaged only as between competing traders … infringement of the general principle of equal treatment may be established, in matters relating to tax, by other kinds of discrimination which affect traders who are not necessarily in competition with each other but who are nevertheless in a similar situation in other respects’. 39 See point 52 above.