Opinion of the Advocate General — ECLI:EU:C:2015:464
Date: 2015-07-09
Language of the case: French
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fifth Chamber), 21 January 2016 1. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption of services linked to welfare and social security work that are supplied by bodies governed by public law or by other organisations recognised as charitable — Organisations recognised as charitable — Criteria (Council Directives 77/388, Art. 13A(1)(g) and 2006/112, Art. 132(1)(g)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Exemption of services linked to welfare and social security work that are supplied by bodies governed by public law or by other organisations recognised as charitable — Provision by serviced residences of dwellings adapted for elderly persons — Included — Other services provided by those serviced residences — Included — Conditions — Financial support from public authorities — No effect (Council Directives 77/388, Art. 13A(1)(g) and 2006/112, Art. 132(1)(g)) 1. Article 13A(1)(g) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes grants the Member States a discretion to recognise as charitable certain organisations not governed by public law. When considering whether to recognise as charitable organisations other than those governed by public law, it is for the national authorities, in accordance with EU law and subject to review by the national courts, to take various factors into account. They include the existence of specific provisions, be they national or regional, legislative or administrative, or tax or social security provisions; the public interest nature of the activities of the taxable person concerned; the fact that other taxable persons carrying on the same activities already enjoy similar recognition; and the fact that the costs of the supplies in question may be largely met by health insurance schemes or other social security bodies. In addition, first, since the word ‘organisation’ is in principle sufficiently broad to encompass private entities carrying out activities with a view to profit, the fact that the organisation concerned carries out its activities for such a purpose in no way precludes its classification as an ‘other organisation recognised as charitable by the Member State concerned’ within the meaning of Article 13A(1)(g) of the Sixth Directive. Secondly, although the fact that the cost of the supplies provided may be largely borne by health insurance schemes or by social security bodies may be one of the factors to be taken into consideration in order to determine whether the organisation concerned is charitable, that fact is only one factor among others. Therefore, the lack of public financial support does not in itself exclude such recognition, since that must be assessed in the light of all the relevant factors of the present case. (see paras 34, 35, 39) 2. Article 13A(1)(g) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that, among the services provided by a serviced residence, whose charitable nature must be assessed by the referring court, those consisting of the provision of dwellings adapted for elderly persons may benefit from the exemption referred to in that provision. The other services provided by that serviced residence may also benefit from that exemption, provided in particular that the services which serviced residences are obliged to offer pursuant to the relevant national legislation are intended to achieve the support and care of elderly persons and correspond to the services which old people’s homes are also obliged to offer in accordance with national legislation. It is irrelevant in this respect whether or not the operator of a serviced residence receives a subsidy or any other form of advantage or financial support from public authorities. The wording of Article 13A(1)(g) of the Sixth Directive expressly mentions the supply of services by old people’s homes among the supply of services and of goods closely linked to welfare and social security work, which thus come under the exemption provided for by that provision. In that regard, it should be noted that old people’s homes, like serviced residences, provide persons aged 60 or over with a dwelling with various support and care services. First, the same treatment with regard to value added tax should be given to the service consisting of the provision of dwellings, whether those dwellings are provided by an old people’s home or whether they are provided by a serviced residence. Secondly, in so far as those support and care services which serviced residences are obliged to offer, pursuant to the relevant national legislation, correspond to those which old people’s homes must provide in accordance with that legislation, they should be given the same treatment with regard to value added tax. Furthermore, the exemptions provided for in Article 13A(1) of the Sixth Directive are autonomous concepts of EU law and they must therefore be given an EU definition. However, to define the services referred to in Article 13A(1)(g) of the Sixth Directive by reference to the existence of public financial support in favour of the operator or the taking of responsibility for the costs of the services by social security bodies would make that concept dependent on the specific features of the relevant legislation of the Member States. In addition, in accordance with the first indent of Article 13A(2)(b) of the Sixth Directive, the Member States are not to exempt the supply of services envisaged, inter alia, in Article 13A(1)(g) if they are not essential to the transactions exempted. That provision, which is binding on the Member States, lays down conditions which must be taken into account for the interpretation of the various exemptions referred to therein, which, like that provided for in Article 13A(1)(g), concern the supply of services or goods which are closely related or closely linked to an activity in the public interest. (see paras 42, 43, 47, 52, 55, operative part)