Opinion of the Advocate General — ECLI:EU:T:2026:274
Date: 2026-04-22
Language of the case: Danish

Translation T-268/25 – 1 
Case T-268/25 
Request for a preliminary ruling 
Date lodged: 
1 April 2025 
Referring court: 
Østre Landsret – Nordhavn (Denmark) 
Date of the decision to refer: 
27 March 2025 
Applicant: 
Sampension Livsforsikring A/S 
Defendant: 
Skatteministeriet 
  
ØSTRE LANDSRET 
ORDER 
of 27 March 2025 
[…] 
Sampension Livsforsikring A/S 
[…] 
v 
Skatteministeriet (Ministry of Taxation, Denmark) 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 3. 2025 – CASE T-268/25 
 
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Dispute in the main proceedings and facts 
1 The case between the Ministry of Taxation and Sampension Livsforsikring A/S 
concerns the interpretation of Article 11 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (‘the VAT 
Directive’), which has been implemented in Denmark by Paragraph 47(4) of the 
momsloven (‘the Law on VAT’). 
2 Sampension Livsforsikring A/S is a customer-owned insurance company engaged 
in life-insurance and other financial activities with both labour market pensions 
and company pensions. Those activities include the supply of services which are 
exempt from VAT under Paragraph 13 of the Law on VAT, which, inter alia, 
implements Article 135 of the VAT Directive. 
3 Until 1 January 2017, Sampension Livsforsikring A/S was part of a VAT group 
(joint registration for VAT purposes) with Sampension Administrationsselskab 
A/S (‘Administrationsselskab’). 
4 Until 1 January 2017, Sampension Livsforsikring A/S owned all of the shares in 
Administrationsselskab. Sampension Livsforsikring A/S was managed by 
Administrationsselskab both before and after 1 January 2017. 
5 Prior to 2017, Administrationsselskab took care of the administrative tasks for 
Sampension Livsforsikring A/S and two pension funds which are not in the same 
group as the Sampension companies. The pension funds’ tasks include customer 
advice, actuarial functions, claims handling and legal liability for customer terms 
and conditions, management of investment portfolios, finance and 
communication, as well as executive management services and HR. 
6 Sampension Livsforsikring A/S has stated that, at the end of 2016, the company 
decided that the two pension funds managed by Administrationsselskab could 
acquire a small ownership interest in Administrationsselskab and thus share the 
risks and economies of scale associated with letting Administrationsselskab 
administer the pension funds. 
7 As a result, two pension funds each acquired 3% of the share capital in 
Administrationssselskab as of 1 January 2017. 
8 As a result of Sampension Livsforsikring A/S no longer owning 100% of 
Administrationsselskab, the VAT group ceased to exist, as the requirement of 
100% ownership laid down in Paragraph 47(4) of the Law on VAT was no longer 
met. 
9 By letter of 15 January 2019, Sampension Livsforsikring A/S submitted a request 
to the Erhvervsstyrelsen (the Danish Business Authority) for permission once 
again to be jointly registered for VAT purposes together with 
Administrationsselskab, with Sampension Livsforsikring A/S being the fiscal 
representative, as Sampension Livsforsikring A/S was of the opinion that the 
SAMPENSION LIVSFORSIKRING 
 
3 
requirement of 100% ownership under Paragraph 47(4) of the Law on VAT is not 
in accordance with EU law, including Article 11 of the VAT Directive. 
10 At the time of submitting the renewed request to establish a VAT group, 
Sampension Livsforsikring A/S owned 94% of Administrationsselskab. According 
to the information provided, that share corresponded to the part of the turnover 
that Administrationsselskab provided to Sampension Livsforsikring A/S. The 
remaining 6% was owned by the two managed pension funds. 
11 The Board of Directors of Administrationsselskab comprises 16 members, 14 of 
whom also sit on the Board of Directors of Sampension Livsforsikring A/S. The 
other two members of the Board of Directors are representatives of the pension 
funds which – in addition to Sampension Livsforsikring A/S – are co-owners of 
Administrationsselskab. 
12 By decision of 8 February 2019, the request for renewed joint registration was 
rejected by the Danish tax authorities (Skattestyrelsen (Danish Tax Agency)) on 
the ground that Sampension Livsforsikring A/S did not own 100% of the shares in 
Administrationsselskab as required under Paragraph 47(4) of the Law on VAT. 
13 On 13 December 2021, the Danish Tax Agency’s decision was upheld by the 
Landsskatteretten (National Tax Tribunal), which is the highest administrative 
appeals body in in taxation matters, on the ground that the requirement of 100% 
ownership was not met. 
14 The Landsskatteretten (National Tax Tribunal) also noted that the company could 
not rely directly on Article 11 of the VAT Directive, as the provision does not 
have direct effect: see the judgment of 16 July 2015 of the Court of Justice of the 
European Union (CJEU) in Joined Cases C-108/14 and C-109/14, 
EU:C:2015:496, Larentia + Minerva and Marenave Schiffahrts), paragraphs 50-
52. 
15 The decision of the Landsskatteretten (National Tax Tribunal) was then appealed 
to the Retten i Lyngby (Lyngby District Court, Denmark) by Sampension 
Livsforsikring A/S, which claimed that the company is entitled to joint registration 
for VAT purposes with Administrationsselskab. The Retten i Lyngby (Lyngby 
District Court) referred the case to the Østre Landsret (High Court of Eastern 
Denmark) to be heard at first instance on the ground that the case raises issues of 
principle. 
16 The owners of Sampension Administrationsselskab A/S currently comprise 
Sampension Livsforsikring A/S (88%), Pensionskassen for Teknikum- og 
Diplomingeniører (6%), Pensionskassen for Arkitekter & Designere (3%) and 
Pensionskassen for Jordbrugsakademikere & Dyrlæger (3%). 
REQUEST FOR A PRELIMINARY RULING OF 27. 3. 2025 – CASE T-268/25 
 
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EU law 
17 Article 11 of the VAT Directive provides: 
‘Article 11 
After consulting the advisory committee on value added tax (hereafter, the “VAT 
Committee”), each Member State may regard as a single taxable person any 
persons established in the territory of that Member State who, while legally 
independent, are closely bound to one another by financial, economic and 
organisational links. 
A Member State exercising the option provided for in the first paragraph, may 
adopt any measures needed to prevent tax evasion or avoidance through the use 
of this provision.’ 
18 The provision continues Article 4(4) of the Sixth VAT Directive. 
19 In a number of judgments, the CJEU has ruled on the interpretation of Article 11 
of the VAT Directive and Article 4(4) of the Sixth VAT Directive, which is 
continued therein: see, for example, judgments of the CJEU of 25 April 2013 in 
Case C-480/10, EU:C:2013:263, Commission v Sweden; and Case C-74/11, 
EU:C:2013:266, Commission v Finland; judgment of 16 July 2015 in Joined 
Cases C-108/14 and C-109/14, EU:C:2015:496, Larentia + Minerva and 
Marenave Schiffahrts; judgment of 15 April 2021 in Case C-868/19, 
EU:C:2021:285, M-GmbH; judgment of 1 December 2022 in Case C-141/20, 
EU:C:2022:943, Norddeutsche Gesellschaft für Diakonie; and, most recently, 
judgment of 11 July 2024 in Case C-184/23, EU:C:2024:599, Finanzamt T. 
Danish law 
20 Paragraph 47(4) of the Law on VAT allows for joint registration of companies for 
tax purposes, so that the companies are deemed to be a single taxable person: see 
Paragraph 3(3) of the Law on VAT. 
21 Paragraph 47(1) and (4) of the Law on VAT provides: 
‘[Subparagraph 1.] Taxable persons engaged in the supply of goods and services 
must register their business with the told- og skatteforvaltningen (Customs and 
Tax Administration). This shall not apply to 
(1) activities involving the supply of goods and services which are exempt under 
Paragraph 13 […] 
(2) […]. 
[…] 
SAMPENSION LIVSFORSIKRING 
 
5 
Subparagraph 4. Several taxable persons engaged solely in activities which are 
subject to registration may, on request, be registered together. The Customs and 
Tax Administration may allow persons engaged in activities subject to VAT 
registration to be registered together with persons engaged in activities not 
subject to registration and persons not engaged in economic activities. Permission 
can be granted only if one person (parent company, etc.), through direct or 
indirect ownership of all shares etc., owns the other person(s) (subsidiaries, sub-
subsidiaries, etc.) included in the joint registration. Joint registration may involve 
only companies, etc. established in Denmark. Requests for joint registration must 
be made no later than one month before the joint registration is to take effect.’ 
22 The second sentence of Paragraph 47(4) of the Law on VAT regulates joint 
registration for persons engaged in activities subject to registration together with 
persons engaged in activities not subject to registration and persons not engaged in 
economic activities. The activities of Sampension Livsforsikring A/S in relation to 
the supply of services exempt from VAT under Paragraph 13 of the Law on VAT 
are not subject to registration: see Paragraph 47(1) of the Law on VAT. 
Sampension [Livsforsikring A/S] is subject to registration under the Law on VAT 
for other activities. 
23 Under the third sentence of Paragraph 47(4), group registration pursuant to the 
second sentence is conditional on one company’s (parent company, etc.) directly 
or indirectly owning all shares, etc. in the other company or companies included 
in the joint registration. 
24 Joint registration of several companies engaged solely in activities subject to 
registration was originally introduced before Denmark joined the then EC by 
Paragraph 5(3) of Law No 102 of 31 March 1967 on general turnover tax (lov nr. 
102 af 31. marts 1967 om almindelig omsætningsafgift). Joint registration was not 
available to persons engaged in activities not subject to registration and persons 
not engaged in economic activities. 
25 The 1967 Law on VAT was amended by Law No 204 of 10 May 1978 as a result 
of Directive 77/388/EEC of 17 May 1977, the Sixth Council Directive on the 
harmonisation of the laws of the Member States relating to turnover taxes (‘Sixth 
VAT Directive’). The 1978 Law on VAT, which came into force on 1 October 
1978, continued Paragraph 5(3) of the 1967 Law on VAT on joint registration of 
several companies subject to registration. 
26 In accordance with Article 4(4) of the Sixth VAT Directive, Denmark consulted 
the VAT Committee on Paragraph 5(3) of the 1978 Law on VAT. The minutes of 
the meeting of the VAT Committee held on 14 and 15 June 1979 (Commission 
document No XV/197/79-EN, page 2) include the following: 
‘Consultation by Denmark under Article 4/4): the registration of different 
undertakings as a single taxable person (Doc. XV/90/79) 
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In reply to the questions put by the Chairman and a number of delegations, the 
Danish delegation confirmed that legislation in Denmark contained no criterion 
for determining the undertakings which could be registered as a single taxable 
person. However, it added that the criteria mentioned in the Sixth Directive were 
applied by the Danish tax authority either when applications submitted by 
undertakings were being vetted or when authorisation given was withdrawn. It 
also pointed out that undertakings could appeal against the tax authority’s refusal 
to grant such authorisation. 
The Danish delegation added that, as banks and insurance companies were not as 
a rule registered for VAT purposes, they had never joined such groups and that 
therefore the problems raised by several delegations (e.g. the presence within the 
same group of both taxable undertakings and banks) did therefore not arise.’ 
27 Paragraph 47(4) of the Law on VAT was introduced by Law No 375 of 18 May 
1994, which expanded eligibility for joint registration, so that companies engaged 
in activities not subject to registration could also be included in a joint 
registration. Eligibility for joint registration of such companies was made subject 
to a 100% ownership requirement in the third sentence of Paragraph 47(4) of the 
Law on VAT. 
28 Paragraph 47(4) of the Law on VAT implemented the then applicable provision in 
Article 4(4) of the Sixth VAT Directive, which provision was later continued in 
Article 11 of the VAT Directive. 
29 Prior to the adoption of the 1994 Law on VAT, in 1992 Denmark had consulted 
the VAT Committee regarding the planned extension of joint registration under 
the second subparagraph of Article 4(4) of the Sixth VAT Directive. Per the 1992 
plan, joint registration of companies engaged in activities not subject to 
registration was conditional on one company in the joint registration directly or 
indirectly owning more than 50% of the share capital with voting rights in the 
other companies in the joint registration. That ownership requirement was to be 
supplemented by additional restrictions. 
30 Commission document XXI/882/92-EN, pages 1-2, concerning the 1992 
consultation, states the following: 
‘4. The Danish authorities are currently planning to amend the Danish VAT Law 
on the basis of the second subparagraph of Article 4(4) of the sixth VAT Directive 
so as to permit joint registration for enterprises closely bound to one another by 
financial, economic and organisational links (companies belonging to the same 
group); the joint registration could then encompass both taxable and exempt 
companies. This right would be subject to the condition that an enterprise 
exercising control has a decisive influence over the company or companies 
covered by the joint registration by virtue of the fact that it holds – directly or 
indirectly – more than 50% of the company’s capital together with voting rights. 
In order to prevent any risk of tax losses and distortion of competition, the 
SAMPENSION LIVSFORSIKRING 
 
7 
extension of the right to joint registration would be subject to the following 
limitations: 
The group’s internal transactions would have to be closely linked to the principal 
exempt activity of that group. They would have to involve secondary services or 
products, and the service or product would, by its very nature, have to be intended 
almost entirely for the principal exempt activity of the group. 
The exempt enterprises would not be able to buy or make a leasing purchase of 
plant or equipment without paying VAT on the basis of the joint registration with 
a producer or retailer of goods. The joint registration would therefore permit 
exemption of intra-group supplies only if corresponding supplies are not made to 
other enterprises which are not covered by the joint registration. 
Joint registration would permit exempt supplies within the group 
(withdrawal/sale) of taxable goods or services simultaneously sold outside the 
group only if the supplies (withdrawal/sale) are for purposes that are generally 
exempt from VAT (in accordance with Article 2(3) of the Danish VAT Law; see 
Article 13 of the sixth VAT Directive). 
Goods and services used for building or construction are not included in the joint 
registration arrangements. 
The right to deduct VAT on purchases would probably be calculated in 
accordance with the general rules governing the right to partial deduction (see 
Articles 17 and 19 of the sixth VAT Directive), i.e. full deduction entitlement for 
purchases corresponding to sales in respect of which tax is due and has been 
paid, no entitlement to deduction for purchases intended for activities exempt from 
VAT, for example for “private” uses, and entitlement to partial deduction for 
purchases in-tended for mixed use. 
On the application or termination of the joint registration arrangements, the VAT 
would have to be adjusted in respect of purchases of capital goods in accordance 
with the rules applicable to sales or transfers laid down in Article 20(2) of the 
sixth Directive. 
COMMISSION COMMENTS 
The comments in the request for a consultation show that Denmark plans to take 
measures designed to prevent the tax losses and distortions of competition 
inherent in the extension of the concept of joint registration to such exempt 
companies. Unless it were accompanied by special measures, such an extension 
would give a group unjustified advantages. Firstly, it would enable the exempt 
members to acquire their goods and services from other members without having 
to pay a tax which would not be deductible or only partially so. Secondly, the 
group could thus obtain, in respect of the expenditure of its exempt sector, a 
larger deduction than that to which it would normally be entitled.’ 
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31 In the bill that was subsequently presented in 1993 ( Bill No L 124 of 8 December 
1993), the originally envisaged requirement of more than 50% ownership was 
replaced by the requirement of 100% ownership in the third sentence of 
Paragraph 47(4) of the Law on VAT. At the same time, the additional restrictions 
which, as mentioned, were intended ‘to prevent any risk of tax losses and 
distortion of competition’, were removed from the bill. 
32 In the specific comments on Paragraph 47(4) of the bill (Folketingstidende 1993-
1994, Supplement A, page 4425) the following is stated: 
‘The second sentence of the provision broadens eligibility for joint registration for 
companies in the same group. The State customs and tax authorities may 
authorise two or more taxable persons engaged in both activities which are 
subject to registration and activities which are not subject to registration to be 
registered together. Permission may be granted only if one taxable person (parent 
company, etc.), through direct or indirect ownership of all shares, etc., owns the 
other taxable person(s) (subsidiaries, sub-subsidiaries, etc.) included in the joint 
registration. However, the fourth sentence provides for an exception to the 
requirement of 100% ownership so that permission for joint registration may be 
granted even if employee shares, etc. have been issued in the subsidiaries which 
are to be included in the joint registration. Permission is subject to the condition 
that the shares, etc. may only be sold back to the issuing company. This extension 
of eligibility for joint registration is proposed in accordance with Article 4(4) of 
the Sixth VAT Directive.’ 
33 The following is also stated about the background to the new rules (part 4 of the 
bill’s general comments, Folketingstidende 1993-1994, Supplement A, pages 
4369-4370): 
‘Thus, a need has emerged to extend joint registration due to the growth of groups 
in the financial sector. That growth in the use of the group structure has meant 
that there is a significant exchange of services between the various group 
companies. Settlement for intra-group turnover generally takes the form of cost 
reimbursement. In this way, each company in the group bears its share of the joint 
costs. 
Intra-group turnover includes taxable services, such as computer processing and 
administration. As turnover takes place between independent legal entities, tax 
thereon must, by law, be paid. 
In practice, however, intra-group cost reimbursement has to a certain extent been 
possible without tax. This practice cannot be maintained in its current form, as the 
Sixth VAT Directive presupposes joint registration. 
The purpose of the proposed extension of joint registration is to adapt the rules, 
so that companies which have established a group structure are permitted to 
continue to avoid paying tax on the exchange of their own services through joint 
registration.’ 
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9 
34 The preparatory works to the 1994 Law on VAT also contain the following 
comment from the Minister for Taxation to a proposal from the FSR (Foreningen 
af Statsautoriserede Revisorer (Danish Auditors), Annex 23) to the effect that a 
general exemption from the 100% ownership requirement should be established in 
cases where there is no tax planning as a result of the relaxation of the rule (SAU, 
General Part – 1993-1994, L 124 – Annex 44): 
‘The provision is a transitional rule designed to accommodate companies which 
do not prima facie fulfil the full ownership requirement and which, under the 
previous administration of the law, have been able to avoid charging VAT on 
intra-group turnover. However, I am not in favour of a general and unlimited 
right of exemption as proposed. 
I have therefore carefully considered the exact scope of the relaxation of the rules 
for joint registration contained in Paragraph 47(4) of the proposal. Any further 
relaxation of the requirements could lead to distortion of competition and 
arbitrary demarcations. The underlying provision in the Sixth VAT Directive sets 
out the more general framework for joint registration, but leaves the detailed 
implementation to the Member States. Member States’ rules on joint registration 
vary considerably.’ 
35 The preparatory works to the 1994 Law on VAT also contain the following 
comments from the Minister for Taxation on a draft amendment from Assurandør-
Societetet (association of insurance companies) (SAU, General Part 1993-1994, L 
124 – Annex 47): 
‘The proposal includes a relaxation of the current rules on joint registration so 
that companies not subject to registration may also be jointly registered with 
companies subject to registration. However, it is proposed that the extended joint 
registration should apply only to companies in the same group where there is 
100% ownership as between the companies. 
As stated in my comments on Annex 23, a relaxation of the ownership requirement 
could, in my opinion, lead to a distortion of competition and arbitrary 
demarcations. The proposal balances various considerations. On the one hand, 
there are the concerns of the financial sector, which has requested that the current 
rules be adapted. On the other hand, there are competition considerations, that is 
to say, the consideration of other companies that have to sell the services under 
normal VAT conditions. 
The 100% ownership requirement puts companies that have completed a 
demerger on an equal footing with companies operating within the same legal 
entity. It is thus accepted that intra-group turnover may, in those cases, be 
equated with a company’s internal free ‘turnover’. With a lower ownership share, 
there is not the same parallelism with the individual company. In reality, this 
would also place groups of companies in a better VAT position than that which 
follows from the general rules of the law. In my view, there is no basis for this.’ 
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36 Paragraph 47(4) was amended by Law No 356 of 19 May 2004, whereby joint 
registration was extended so that non-taxable persons (persons not engaged in 
economic activities) were also able to be included in a joint registration with a 
taxable person. 
37 In the comments to the amending law: see Bill No L 148 of 28 January 2004, 
Paragraph 1, No 12, specific comments, part 2, inter alia the following is stated: 
‘As regards the proposal to change the rules for joint registration, Article 4(4) of 
the Sixth VAT Directive allows Member States to authorise persons not engaged 
in economic activities to be included in a joint registration with a taxable person. 
Denmark has not previously implemented this option in its Law on VAT. 
Implementing it would entail an extension of joint registration, so that persons not 
engaged in economic activities (e.g., a holding company) may also be included in 
a joint registration. It should be noted that the Sixth VAT Directive stipulates that 
only persons who can be regarded as legally independent but who are closely 
bound to one another by financial, economic and organisational links can be 
registered together. The Law on VAT therefore retains the provision to the effect 
that permission for joint registration is conditional on one person, through direct 
or indirect ownership of all shares, etc., owning the other person or persons 
included in the joint registration.’ 
Submissions of the parties 
38 Sampension Livsforsikring A/S has argued that the first paragraph of Article 11 of 
the VAT Directive does not allow Member States to impose conditions on 
economic operators other than the requirement of close connection in order to 
form a VAT group, see the CJEU’s Joined Cases C-108/14 and C-109/14, 
EU:C:2015:496, Larentia + Minerva and Marenave Schiffahrts, paragraph 38. 
39 In Case C-85/11, EU:C:2013:217, Commission v Ireland, paragraph 46, the CJEU 
ruled that the term ‘persons’ in Article 11 cannot be interpreted restrictively and 
that the term must be interpreted as meaning that non-taxable persons can also be 
included in a VAT group. The CJEU observed that it is conceivable that groups 
consisting of such persons contribute to simplification for both the group and for 
the authorities and make it possible to avoid certain abuses: see Commission v 
Ireland, paragraph 48. 
40 The concept of ‘person’ in Article 11 therefore includes any person, taxable or 
non-taxable. The fact that one or both of the persons is or are not engaged solely 
in taxable activities does not prevent the creation of a VAT group. Several persons 
can then be considered a single person when they are closely bound to one another 
by financial, economic and organisational links. 
41 The criterion of ‘closely bound’ is not to be interpreted strictly, and the provision 
is not a derogating or special provision which must be interpreted narrowly: 
C-141/20, EU:C:2022:943, Norddeutsche Gesellschaft für Diakone, paragraph 48. 
SAMPENSION LIVSFORSIKRING 
 
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Moreover, in Larentia + Minerva and Marenave Schiffahrts, paragraphs 44 and 
45, the CJEU observed that when the legislator stated that the connection must 
merely be ‘close’, the legislator did not intend to reserve joint registration for 
companies where there is a relationship of subordination. Conversely, a close 
relationship must be presumed to exist when there is a relationship of 
subordination between two persons. Nor can Member States rely only on criteria 
relating solely to certain types of legal persons to establish the existence of a close 
connection: see Case C-868/19, EU:C:2021:285, M-GmbH, paragraph 46. Either 
two persons are closely bound or they are not closely bound, irrespective of the 
type of person and activity. 
42 Sampension Livsforsikring A/S submits that it follows from settled case-law that 
the criterion ‘closely bound’ must be interpreted independently and uniformly in 
order to avoid differences between Member States, see M-GmbH, paragraph 44, 
which leads to such a uniform interpretation of ‘closely bound’, irrespective of the 
fact that it is optional for Member States to introduce a VAT grouping scheme and 
the ensuing joint registration. The CJEU’s interpretation of the term ‘closely 
bound’ is thus binding where Member States have introduced VAT groups on the 
basis of the directive. 
43 The criterion ‘closely bound’ must be interpreted uniformly across Member 
States: see C-480/10, EU:C:2013:263, Commission v Sweden, paragraph 33. The 
criterion must a fortiori be interpreted uniformly in each Member State and across 
all types of persons. The criterion is thus a single concept and – based on the 
wording of Article 11 – cannot differentiate in terms of content, depending on 
whether the person is a taxable person or a non-taxable person. An interpretation 
according to which certain persons are considered to be closely linked only if they 
are 100% owned, while other persons are considered to be closely linked based on 
a specific assessment and independently of 100% ownership, will therefore not be 
in line with Article 11 of the VAT Directive and the existing case-law of the 
CJEU. 
44 On the basis of the foregoing, Sampension Livsforsikring A/S submits that it is 
not within the discretion of Member States to implement the criterion ‘closely 
bound’ to make joint registration for some, but not all, persons subject to an 
additional requirement of 100% ownership. 
45 In its case-law, the CJEU has held that, for the application of the first paragraph of 
Article 11, the Member States, in the context of their margin of discretion, are 
entitled to make the application of the VAT group scheme subject to certain 
restrictions, provided that they fall within the objectives of the directive to prevent 
abusive practices and behaviour or to combat tax evasion or tax avoidance 
(Larentia + Minerva and Marenave Schiffahrts, paragraph 41, and in relation to 
the principle of prohibition of abuse (Case C-255/02, EU:C:2006:121, Halifax, 
paragraphs 68-70). 
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46 The background to joint registration in the directive can be found in the 
memorandum to the Commission proposal for Directive 77/338 (COM(73)950). 
The aim was to allow for the creation of VAT groups locally for the purpose of 
either administrative simplification or prevention of abuse. 
47 It follows from the case-law of the CJEU that there can be abuse only if it appears 
from objective evidence that the transactions in question were essentially intended 
to obtain a tax advantage: see Halifax, paragraph 75, and repeated in M-GmbH, 
paragraph 61. 
48 Thus, where there is objective evidence showing that the main purpose of a given 
transaction or combination of transactions was to obtain a tax advantage, local 
legislation may introduce measures to prevent such abuse. 
49 The measures must be proportionate and appropriate, however. In relation to the 
principle of proportionality, the CJEU has held previously that national legislation 
that systematically excludes certain types of persons from being included in a 
VAT group goes beyond what is necessary: see M-GmbH, paragraph 63, and the 
case-law cited therein. 
50 It should be noted that, in Commission v Ireland, paragraph 48, the CJEU stated 
that it cannot be excluded that the establishment of a VAT group involving 
persons such as those at issue in that case may constitute an administrative 
simplification for the VAT group and for the authority, and that such a group 
makes it possible to avoid certain abuses. 
51 It follows from this alone that national legislation which systematically prevents 
the creation of VAT groups involving closely connected taxable persons not 
engaged solely in taxable activities goes beyond what is necessary. 
52 Furthermore, the loss of autonomy and the right to consider oneself a single entity 
only applies to transactions between members of the VAT group and the return 
filed with the tax authorities. For transactions between all other parties not 
included in the VAT group, VAT is charged in accordance with the general 
principles of the VAT Directive. It also follows from this that the establishment of 
the VAT group in relation to non-participants does not create a constellation that 
may give rise to abuse. 
53 Moreover, the Danish government, as shown in the review of Danish law, itself 
referred to a less intrusive measure during the consultation about Paragraph 47(4) 
of the Law on VAT with the European Commission (50% ownership), and also 
introduced the possibility of dispensing with the 100% ownership requirement for 
a transitional period. 
54 For that reason, a requirement of 100% ownership also goes beyond what is 
compatible with the principle of proportionality. Since the principle of abuse can 
always be invoked by Member States, including in the context of an authorisation 
scheme where the conditions for establishing a VAT group are examined 
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13 
beforehand, it is not proportionate to exclude, a priori and without examining the 
criterion of ‘closely bound’, to rule out the establishment of VAT groups 
involving persons not solely engaged in taxable activities. 
55 Lastly, anti-abuse measures must observe the principle of equal treatment. 
56 A 100% ownership criterion would mean that groups which, for commercial, 
regulatory or historical reasons, own less than 100% of the controlled company 
(for instance, 99.9%), would be prevented – in relation to the authorities and 
internally – from obtaining the administrative simplifications, etc. which are 
granted to competing VAT groups. This is in contrast to functionally equivalent 
competitors who simply have a different group structure (100% ownership). Such 
differential treatment of functionally identical groups has been found to be 
contrary to the EU law principles of neutrality and equal treatment. 
57 Sampension Livsforsikring A/S accordingly submits that the condition of 100% 
ownership for the establishment of VAT groups for certain persons is neither a 
suitable nor appropriate measure for preventing tax evasion or avoidance under 
the second paragraph of Article 11 of the VAT Directive. 
58 The second paragraph of Article 11 of the VAT Directive lays down the general 
principle of abuse prevention. That principle applies irrespective of whether or not 
anti-abuse rules have been introduced in national law: see C-131/13, 
EU:C:2014:2455, Schoenimport Italmoda Mariano Previti and Others, 
paragraph 62. 
59 The second paragraph of Article 11 is optional in its wording, as Member States 
‘may’ adopt any measures needed. However, the CJEU has held that the general 
principle of abuse and its limits could be invoked prior to the introduction of the 
second paragraph of Article 11: see Larentia + Minerva and Marenave 
Schiffahrts, paragraph 42, and the case-law cited therein. The actual inclusion of 
the principle of abuse in Article 11 does not, therefore, add anything new to the 
state of the law, but merely clarifies that anti-abuse measures may be adopted at 
national level when provision is made for creating VAT groups. 
60 Sampension Livsforsikringsselskab A/S submits that both the principle of abuse 
and its limits can be applied and reviewed directly by the courts of the Member 
States. This also applies when an abuse provision (safeguard rule) is specifically 
written into national legislation. 
61 Thus, Member States do not achieve a better legal position by implementing a 
safeguard rule unlawfully rather than by failing to implement such a safeguard 
rule. A safeguard rule established by national law that is neither appropriate nor 
proportionate can and must, therefore, be disapplied. 
62 A rationale under which private parties, vis-à-vis the State, are prevented from 
having reviewed whether a safeguard rule is too broad simply because the 
safeguard rule also allegedly constitutes an implementing rule subject to the 
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discretion of the Member State would effectively negate the direct application of 
the general principle of abuse under EU law. 
63 If the provision on 100% ownership therefore constitutes both a provision 
implementing the first paragraph of Article 11 and the ‘closely bound’ criterion 
contained therein and a safeguard rule under the second paragraph of Article 11, 
the provision must be disapplied if, as advocated by Sampension 
Livsforsikringsselskab A/S, it is found to constitute an unlawful – and overly far-
reaching – abuse provision. 
64 It is thus the submission of Sampension Livsforsikringsselskab A/S that the 
compatibility of abuse provisions with the requirements of EU law (and thus the 
direct effect thereof) cannot be ruled out on the grounds that the provision in 
national law also constitutes a substantive implementing provision in which 
Member States are left a certain amount of discretion. 
65 If the 100% ownership requirement in the third sentence of Paragraph 47(4) of the 
Law on VAT constitutes a safeguard rule contrary to EU law, the effect is 
therefore that the national courts must disregard the requirement and thus not 
apply the third sentence of Paragraph 47(4) at all. 
66 The Ministry of Taxation has argued that the requirement of 100% ownership in 
the third sentence of Paragraph 47(4) of the Law on VAT is not incompatible with 
Article 11 of the VAT Directive. 
67 The statutory requirement of 100% ownership is a lawful and appropriate criterion 
for determining whether companies are entitled to obtain permission for group 
registration under the second sentence of Paragraph 47(4) of the Law on VAT. 
68 The 100% ownership requirement falls within the discretion of Member States to 
determine the definition of when two persons can be considered to be closely 
bound to one another by financial, economic and organisational links: see the 
relevant condition in the first paragraph of Article 11 of the directive. In cases 
where a company is wholly owned by another company, the companies will thus 
generally be closely bound to one another by financial, economic and 
organisational links, in the same way as there will be such a close relationship 
between the departments of a company organised as a single legal entity, as stated 
in the explanatory notes to the Law on VAT. The German requirement of a 
relationship of subordination referred to in the judgment of the CJEU in Joined 
Cases C-108/14 and C-109/14, Larentia + Minerva and Marenave Schiffahrts, is 
not comparable to the Danish ownership requirement. The Danish ownership 
requirement limits joint registration to those situations which fall within what, 
according to the purpose of Article 11 of the directive, is the core area thereof, 
namely administrative simplification. 
69 Furthermore, the ownership requirement constitutes a necessary and appropriate 
measure for achieving the objectives of the directive, being to prevent abusive 
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15 
practices and behaviour, and to combat tax evasion and avoidance: see the second 
paragraph of Article 11 of the VAT Directive and the case-law of the CJEU. 
70 Joint registration that includes persons engaged in VAT-exempt activities (or not 
in economic activity) entails a risk of obtaining undue VAT advantages, which 
was also highlighted in connection with Denmark’s consultation with the VAT 
Committee in 1992. That risk is lessened by not extending joint registration 
beyond situations where the companies concerned could alternatively have 
organised themselves within the same legal entity because they are 100% 
affiliated within the same group. 
71 Furthermore, the Ministry of Taxation argues that, even if the ownership 
requirement in the third sentence of Paragraph 47(4) of the Law on VAT were 
found to be contrary to the VAT Directive, Sampension Livsforsikring A/S is in 
any event not entitled to be jointly registered for VAT purposes with Sampension 
Administrationsselskab A/S. 
72 It is therefore not possible to interpret Paragraph 47(4) in such a way that the 
100% ownership requirement can be disregarded, so that, for example, 94% 
ownership (depending on the circumstances) can be deemed to fulfil the 
requirement laid down therein, or so that the second sentence of Paragraph 47(4) 
of the Law on VAT can be applied without the condition in the third sentence. On 
the contrary, such an interpretation would be contra legem. 
73 Sampension Livsforsikring A/S is not entitled to joint registration directly on the 
basis of Article 11 of the VAT Directive, as that provision does not have direct 
effect. The CJEU has held, in its judgment in Joined Cases C-108/14 and 
C-109/14 Larentia + Minerva and Marenave Schiffahrts, that the previously 
applicable provision in Article 4(4) of the Sixth VAT Directive, which has been 
continued unamended in Article 11 of the VAT Directive, does not have direct 
effect: see paragraphs 47-52 of the judgment. 
The background to the request for a preliminary ruling 
74 Under the first paragraph of Article 11 of the VAT Directive, a Member State may 
regard two or more persons established in that Member State who, while legally 
independent, are closely bound to one another by financial, economic and 
organisational links, as a single taxable person for VAT purposes. Under the 
second paragraph of Article 11, a Member State that exercises that option may 
adopt any measures needed to prevent tax evasion and avoidance. 
75 The Østre Landsret (High Court of Eastern Denmark) finds that there is such 
doubt as to how Article 11 of the VAT Directive is to be interpreted in the present 
case that a reference for a preliminary ruling should be made to the CJEU. 
76 The Østre Landsret (High Court of Eastern Denmark) thus finds that there is doubt 
as to whether the first paragraph of Article 11 of the VAT Directive, read in 
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16  
conjunction with the second paragraph thereof, must be interpreted as precluding 
the requirement of 100% direct or indirect ownership as a condition for joint 
registration, as follows from the third sentence of Paragraph 47(4) of the Law on 
VAT. 
77 This includes the question whether such an ownership requirement constitutes a 
necessary and appropriate measure for achieving the objectives of the directive, 
being to prevent abusive practices and behaviour, and to combat tax evasion and 
avoidance: see the second paragraph of Article 11 of the directive, and is therefore 
in compliance with the directive. 
78 In Joined Cases C-108/14 and C-109/14, Larentia + Minerva and Marenave 
Schiffahrts, paragraphs 47-52, the CJEU held that Article 4(4) of the Sixth VAT 
Directive did not have direct effect. Article 11 of the VAT Directive continues 
that provision unamended, but whereas in Larentia + Minerva and Marenave 
Schiffahrts the question of direct effect turned on whether the provision of the 
directive had direct effect enabling taxable persons to claim a right of deduction as 
against their Member State: see paragraphs 47 and 52 of the judgment, the present 
case concerns the question whether the taxable person is entitled to joint 
registration. 
79 Although the CJEU has previously had occasion to answer the question of the 
direct effect of the provision, the Østre Landsret (High Court of Eastern Denmark) 
finds, in the light of the foregoing and given the considerable practical 
implications of the question for the tax authorities’ administration of the scheme, 
that, in connection with the first question, there is also a basis for referring to the 
CJEU a question concerning whether Article 11 of the VAT Directive also has 
direct effect in the context of the present case. 
80 In light of the foregoing, the Østre Landsret (High Court of Eastern Denmark) 
finds that questions as set out below should be referred to the CJEU, pursuant to 
the second paragraph of Article 267 of the Treaty on the Functioning of the 
European Union. 
IT IS HEREBY ORDERED THAT: 
The Østre Landsret (High Court of Eastern Denmark) requests that the Court of 
Justice of the European Union answer the following questions referred for a 
preliminary ruling: 
(1) Is the first paragraph of Article 11 of Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax, read in conjunction 
with the second paragraph thereof, to be interpreted as precluding legislation of a 
Member State, such as that at issue in the present case, under which eligibility for 
creating a VAT group comprising persons not engaged in activity subject to 
registration or not engaged in economic activity subject to the condition that one 
person in the VAT group directly or indirectly owns 100% of the other person or 
persons in the VAT group? 
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(2) If question 1 is answered in the affirmative, does Article 11 of Council 
Directive 2006/112/EC of 28 November 2006 on the common system of value 
added tax then have direct effect in the Member States, with the result that taxable 
persons are entitled, vis-à-vis a Member State, to be registered as a VAT group in 
cases where the legislation of that Member State does not comply with that 
provision and cannot be interpreted in accordance therewith?