Opinion of the Advocate General — ECLI:EU:C:2015:327
Date: 2015-05-20
Language of the case: Dutch
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fifth Chamber), 9 December 2015 1. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Management of special investment funds — Meaning of special investment funds — Investment companies established by investors for the purpose of investing in immovable property — Included — Condition — Such companies having been made subject to State supervision (Council Directive 77/388, as amended by Directive 91/680, Art. 13B(d)(6)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Management of special investment funds — Meaning — Actual management of the immovable property of a special investment fund — Excluded (Council Directive 77/388, as amended by Directive 91/680, Art. 13B(d)(6)) 1. Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, must be interpreted as meaning that investment companies in which capital is pooled by several investors who bear the risk connected with the management of the assets assembled in those companies with a view to purchasing, owning, managing and selling immovable property in order to derive a profit therefrom which will be distributed to all unit-holders in the form of a dividend, those unit-holders benefiting also from an increase in the value of their holding, may be regarded as special investment funds within the meaning of that provision, provided that the Member State concerned has made those companies subject to specific State supervision. In that regard, in so far as investments, whether composed of transferable securities or immovable property, are subject to comparable specific State supervision, there is direct competition between those forms of investment. In both cases, what matters for the investor is the interest he derives from those investments. The principle of fiscal neutrality precludes treating similar supplies of services, which are thus in competition with each other, differently for value added tax purposes. (see paras 63, 64, operative part 1) 2. Article 13B(d)(6) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 91/680, must be interpreted as meaning that the term management which appears in that provision does not cover the actual management of the immovable property of a special investment fund. The specific activity of a special investment fund consists in the collective investment of capital raised. Thus, where the assets of such a fund consist of immovable property, its specific activity includes, on the one hand, activities relating to the selection, purchase and sale of immovable property and, on the other, administration and accounting tasks. By contrast, the actual management of properties is not specific to the management of a special investment fund in that it goes beyond the various activities connected with the collective investment of capital raised. In so far as the actual management of immovable property is intended to preserve and build up the assets invested, its objective is not specific to the activity of a special investment fund but is inherent in any type of investment. (see paras 77-79, operative part 2)