Opinion of the Advocate General — ECLI:EU:C:2023:24
Date: 2023-01-12
Language of the case: Dutch
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation C-677/21 – 1 
Case C-677/21 
Request for a preliminary ruling 
Date lodged: 
11 November 2021 
Referring court: 
Vredegerecht te Antwerpen (Belgium) 
Date of the decision to refer: 
8 November 2021 
Applicant: 
Fluvius Antwerpen 
Defendant: 
MX 
  
Vredegerecht 
van het 2de kanton 
Antwerpen 
(Magistrates’ Court of the 
2nd canton of Antwerp) 
 
JUDGMENT 
… 
- Opdrachthoudende vereniging (mandated association) FLUVIUS 
ANTWERPEN …, with its registered office at … Antwerp, … 
… 
applicant 
EN 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2021 – CASE C-677/21 
 
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- MX …, residing at … Antwerp, … 
defendant 
Procedure 
… 
[Information concerning the proceedings before the referring court] 
Assessment of the claim 
1 MX was summoned by the distribution network operator, Fluvius Antwerpen 
(‘Fluvius’), to pay the sum of EUR 813.41 (inclusive of VAT), together with 
default interest in the amount of EUR 4.80 as well as statutory interest from the 
time of the summons in respect of the consumption of electricity … for the period 
from 7 May 2017 to 7 August 2019.  
That invoicing did not take place because MX was supplied with electricity by 
Fluvius pursuant the latter’s public service obligation under Article 5.2.3(1) of the 
Energiebesluit (Energy Decision). This provision stipulates that if a domestic 
customer’s contract is terminated by his or her energy supplier, for example for 
non-payment, and this customer does not enter into a new contract with another 
energy supplier, he or she will be supplied by the distribution network operator.  
This invoicing took place because MX used electricity at the address at which he 
resides … without having concluded a contract for such use with a commercial 
energy supplier and without having had a contract previously terminated by a 
(different) commercial energy supplier at that address and, as a result, was 
supplied by Fluvius on the basis of the public service obligation. In other words, 
the invoicing took place after Fluvius had established, with the passage of time, 
that actual usage, referred to as unlawful usage. Based on a comparison between 
the meter reading at the start of the unlawful usage and the meter reading at the 
end of the unlawful usage, an amount of EUR 813.41, which included 
EUR 131.45 in VAT, was invoiced for the usage over that period.  
Given the legal basis for the invoicing, namely the unlawful usage, the 
vrederechter (magistrate) asked Fluvius to take a position on the chargeability of 
VAT on the amount invoiced.  
2 … [Fluvius takes the following position]: 
• Article 5.5.1(5) of the Energiebesluit provides that, when usage takes 
place without a supply contract, that usage may be charged to the 
owner or user by the network operator.  
FLUVIUS ANTWERPEN 
 
3 
Anonymised version 
• Since the relationship between that customer and the distribution 
network operator supplying the energy is regulatory in nature, the 
unlawful usage does not constitute an unlawful act ….  
• VAT is payable on this unlawful usage pursuant to Article 10(2) of the 
BTW-Wetboek (VAT Code). According to that article, there is a 
supply subject to VAT if there is a transfer of the ownership of 
property against payment of a fee pursuant to an order made by or in 
the name of a public authority and, more generally, in pursuance of a 
law, decree, ordinance, decision or administrative regulation.  
3   
3.1 … [reference to national case-law which the referring court does not 
consider relevant] 
3.2 For the period that has been invoiced, the connection regulations of Fluvius 
… are relevant … 
Those connection regulations say nothing about the level of the fee that will be 
charged in the event of unlawful usage or about whether VAT is payable on that 
fee. … Article 7.10 … provides as follows: 
… Unlawful usage of energy and fees for regularisation Both registered and 
possibly unregistered consumption as a result of Unlawful usage will be 
subject to a charge by the DNO. … 
4 Prior to 1 May 2018, there was no regulatory text expressly stating whether or not 
VAT ought to be charged on the fee payable by a person who has used energy 
unlawfully. However, since 1 May 2018, after the amendment of the 
Energiedecreet (Energy Decree) and the Energiebesluit, rules on the matter have 
existed.  
Unlawful usage and the fee for such usage are currently regulated by Article 1.1.3, 
40° /l, in conjunction with Article 5.1.2 of the Energiedecreet and Article 4.1.2 of 
the Energiebesluit.  
Article 1.1.3, 40° /1 of the Energiedecreet defines the term ‘energy fraud’ as any 
unlawful action by any person, whether active or passive, that is accompanied by 
the gaining of an unlawful advantage. The vrederechter is of the view that the 
usage of electricity from the network without entering into a commercial 
agreement and without reporting it to the distribution network operator can be 
regarded as an unlawful action, active or passive, that is accompanied by the 
gaining of an unlawful advantage.  
Article 5.1.2 of the Energiedecreet also provides that the costs incurred by the 
network operator to remedy the energy fraud referred to in Article 1.1.3, 40° /l, 
(a), (b), (c), (d) and (g), the costs of the disconnection referred to in the previous 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2021 – CASE C-677/21 
 
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paragraph, the regularisation of the connection or of the metering installation, the 
reconnection, the unlawfully gained advantage, the costs related to the unlawfully 
gained advantage and the interest are to be borne by the relevant network user. In 
addition, the network operator or its mandated representative will recover the 
aforementioned costs as well as the unlawfully gained advantage and the interest 
directly from the network user.  
Article 4.1.2(1) of the Energiebesluit prescribes the way in which the unlawful 
advantage must be calculated and which items form part of the unlawfully gained 
advantage. The unlawfully gained advantage relates, among other things, to the 
evaded costs for the supplied energy (Article 4.1.2(1)(3), 4° of the Energiebesluit).  
Article 4.1.2(3) further provides that the fee charged for the unlawfully gained 
advantage is determined in a specific manner and includes taxes, levies and VAT.  
5 The vrederechter, however, questions whether the provision governing the 
charging of VAT is not contrary to Council Directive 2006/112/EC of 
28 November 2006 on the common system of value added tax (‘the VAT 
Directive’).  
In the first place, the vrederechter questions whether Article 2(1)(a) and 
Article 14(1) and (2)(a) of the VAT Directive allow VAT to be levied on the fee 
payable for the unlawful usage of energy.  
Article 2(1)(a) provides that the supply of goods for consideration in a Member 
State by a taxable person acting as such is subject to VAT. Article 14(1) adds that 
‘supply of goods’ means the transfer of the right to dispose of tangible property as 
owner. The following are also regarded as a supply of goods: the transfer, by order 
made by or in the name of a public authority or in pursuance of the law, of the 
ownership of property against payment of compensation (Article 14(2)(a) of the 
VAT Directive). 
Can it be inferred from these provisions that the unlawfully used energy must be 
regarded as: 
• a supply of goods, being the transfer of the right to dispose of tangible 
property as owner (Article (2)(1)(a) in conjunction with Article 14(1) 
of the VAT Directive), 
• or as the transfer of the ownership of property by order made by or in 
the name of a public authority or in pursuance of the law 
(Article 14(2)(a) of the VAT Directive)? 
In the second place, the vrederechter questions whether Article 9(1) and 
Article 13(1) of the VAT Directive allow Fluvius, as a body governed by public 
law, to claim VAT on the compensation to which it is entitled for the unlawful 
usage of energy and, consequently, whether it is a taxable person for VAT 
purposes in respect of that unlawful usage.  
FLUVIUS ANTWERPEN 
 
5 
Anonymised version 
Article 9(1) of the VAT Directive defines who a taxable person is, namely, any 
person who, independently, carries out any economic activity, whatever the 
purpose or results of that activity. The exploitation of tangible or intangible 
property for the purposes of obtaining income therefrom on a continuing basis will 
in particular be regarded as an economic activity.  
The first paragraph of Article 13(1) adds that public authorities, including bodies 
governed by public law, will not be regarded as taxable persons in respect of the 
activities or transactions in which they engage as public authorities, even where 
they collect dues, fees, contributions or payments in connection with those 
activities or transactions. The third paragraph introduces some nuance to the 
previous provision by stating that, in any event, bodies governed by public law 
will be regarded as taxable persons in respect of the activities listed in Annex I, 
provided that those activities are not carried out on such a small scale as to be 
negligible. The supply of gas and electricity is covered by this provision.  
Can it be inferred from those provisions that, if Fluvius is entitled to compensation 
for unlawfully used energy, it is to be regarded as a taxable person within the 
meaning of Article 9(1) of the VAT Directive because the unlawfully used energy 
is the result of the exploitation of tangible property for the purposes of obtaining 
income therefrom on a continuing basis?  
And if that is the case, must the first paragraph of Article 13(1) of the VAT 
Directive be understood to mean that Fluvius is a public authority and, if so, does 
it then follow from the third paragraph of Article 13(1) of the directive that the 
economic activity of Fluvius in connection with the unlawful usage of energy is 
on such a significant scale that Fluvius must be regarded as a taxable person for 
VAT purposes in connection with that usage?  
6 … 
… [decision of the referring court] 
Decision 
… [order for the payment of compensation for the unlawfully used energy] 
and before ruling on the VAT (value added tax) claimed by the mandated 
association Fluvius Antwerp, refers this case to the Court of Justice of the 
European Union with a view to obtaining answers to the following questions 
referred for a preliminary ruling to the Court of Justice of the European Union by 
the vrederechter:  
‘Must Article 2(1)(a), read in conjunction with Article 14(1) of Directive 
2006/112/EC, be interpreted as meaning that the unlawful usage of energy is 
a supply of goods, being the transfer of the right to dispose of tangible 
property as owner?’ 
REQUEST FOR A PRELIMINARY RULING OF 8. 11. 2021 – CASE C-677/21 
 
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‘If not, must Article 14(2)(a) of Directive 2006/112/EC be interpreted as 
meaning that the unlawful usage of energy is a supply of goods, being a 
transfer, by order made by or in the name of a public authority or in 
pursuance of the law, of the ownership of property against payment of 
compensation?’ 
‘Must Article 9(1) of Directive 2006/112/EC be interpreted as meaning that, 
if Fluvius Antwerpen is entitled to compensation for unlawfully used energy, 
it is to be regarded as a taxable person since the unlawful usage is the result 
of an “economic activity” of Fluvius Antwerpen, namely the exploitation of 
tangible property for the purposes of obtaining income therefrom on a 
continuing basis?’  
‘If Article 9(1) of Directive 2006/112/EC must be interpreted as meaning 
that the unlawful usage of energy constitutes an economic activity, must the 
first paragraph of Article 13(1) of Directive 2006/112/EC then be 
interpreted as meaning that Fluvius Antwerpen is a public authority and, if 
so, must the third paragraph of Article 13(1) then be interpreted as meaning 
that the unlawful usage of energy is the result of an activity of Fluvius 
Antwerpen that is not carried out on such a small scale as to be negligible?’ 
… [closing formula]