Judgment;Summary — ECLI:EU:C:2024:942
Date: 2024-11-07
Language of the case: Danish
Court formation: Seventh Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
26 September 2023 
Referring court:  
Vestre Landsret (Denmark) 
Date of the decision to refer:  
20 September 2023 
Appellant:  
Skatteministeriet (Danish Ministry of Taxation) 
Respondents:  
Lomoco Development ApS 
Holm Invest Aalborg A/S 
I/S Nordre Strandvej Sæby 
Strandkanten Sæby ApS 
  
Subject matter of the main proceedings 
The dispute in the main proceedings has been brought against the decision of the 
Landsskatteret (National Tax Tribunal, Denmark), by which it held that the 
supplies of land at issue in the main proceedings are not supplies of building land 
and thus are not transactions subject to VAT under Article 135(1)(j), and 
Article 12(1)(a) and (2), on the one hand, and under Article 135(1)(k), and 
Article 12(1)(b) and (3), on the other, of the VAT Directive. The appeal in the 
main proceedings challenging that decision has been brought by the 
Skatteministeriet, which claims that the land concerned is building land and that 
the supply is for that reason subject to VAT. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-594/23 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of the term ‘building land’ (see Article 135(1)(j), and 
Article 12(1)(a) and (2); Article 135(1)(k), and Article 12(1)(b) and (3)); 
The reference is made pursuant to Article 267 TFEU 
Question referred for a preliminary ruling 
Is it compatible with Article 135(1)(j), and Article 12(1)(a) and (2), on the one 
hand, and with Article 135(1)(k), and Article 12(1)(b) and (3), on the other, of 
Directive 2006/112 for a Member State, in circumstances such as those in the 
main proceedings, to consider a supply of land on which, at the time of supply, a 
pre-cast foundation has been constructed and on which a residential building is 
only subsequently constructed by other owners to be a sale of building land 
subject to VAT? 
Provisions of EU law cited 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (OJ 2006 L 347, p. 1) 
Treaty on the Functioning of the European Union, Article 267. 
C-349/96, Card Protection Plan, (EU:C:1999:93) 
C-400/98, Breitsohl, (EU:C:2000:304, paragraphs 46 and 54) 
C-315/00, Rudolf Maierhofer, (EU:C:2003:23) 
C-308/16, Kozuba Premium Selection, (EU:C:2017:869, paragraph 31) 
C-71/18, KPC Herning, (EU:C:2019:660, paragraph 54) 
C-299/20, Icade Promotion, (EU:C:2021:783), paragraphs 34, 35, 51, 57 and 58 
Provisions of national law cited 
1 The Law on VAT; Consolidated Law No 966 of 14 October 2005, as subsequently 
amended: Paragraph 13(1)(9)(a) and (b), and Paragraph 13(3) 
2 Regulation No 814 of 24 June 2013: Paragraphs 57 and 59 
3 Regulation No 808 of 30 June 2015: Paragraphs 54 and 56, and Paragraph134(3) 
and (4) 
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4 Paragraph 13(1)(9) of the Law on VAT (Consolidated Law No 966 of 14 October 
2005, as subsequently amended), in the version applicable at the time when the 
foundations of the building land at issue in the main proceedings were cast, 
exempted supplies of immovable property from tax. That provision of the Law on 
VAT was based on the standstill provision in Article 371 of the VAT Directive, in 
conjunction with Annex X, Part B, point 9, thereto, which continued 
Article 28(3)(b) of the Sixth Directive, in conjunction with Annex F, point 16, 
thereto. 
5 That VAT exemption was partially repealed on 1 January 2011 by Law No 520 of 
12 June 2009, which inserted an amendment in Paragraph 13 of the Law on VAT, 
which also authorised the skatteminister (Minister for Taxation) to issue a VAT 
regulation on the further definition and delimitation of immovable property. From 
that time onwards, paragraph 13 stipulated that the VAT exemption for supplies of 
immovable property does not include the supply of building land, regardless of 
whether it has been developed, and the separate supply of land which has been 
built on. The amending law came into force on 1 January 2011. 
6 According to the explanatory notes to that law, no transitional provisions were 
proposed, as it was stated that the law would apply only to new properties where 
the construction or extension/conversion starts after the entry into force of the law. 
The time at which new construction is considered to start is when the casting of 
foundations begins. 
7 The skatteminister subsequently issued a VAT regulation on the definition of 
immovable property. Two different versions of the VAT regulation applied at the 
time of the transfer of the building plots at issue in the main proceedings: the 
regulation of 24 June 2013 (in respect of the transfers that took place on 15 June 
2015) and the regulation of 30 June 2015 (in respect of the other supplies in the 
form of non-cash contributions on 25 August 2015). 
8 It is apparent from Paragraph 54(1) of the 2015 regulation that the term ‘building’ 
in Paragraph 13(1)(9)(a) of the Law on VAT is to be understood as meaning 
structures fixed to or in the ground that have been completed for their intended 
purpose. According to Paragraph 56(1) of that regulation, the term ‘building land’ 
is to be understood as meaning an area which has not been built on which is 
designated for purposes that enable the construction of buildings. It is also 
apparent from Paragraph 134(3) and (4) of that regulation that the liability to VAT 
provided for in Paragraph 13(1)(9)(a) of the Law on VAT, as amended, applies to 
new buildings and new buildings and the land on which they stand, where 
construction began on or after 1 January 2011. 
9 The case-law of the Landsskatteret 
10 On 29 September 2017, the Landsskatteret ruled in a case in which the issue was 
similar to that in the present case. In its decision, the Landsskatteret held that a 
plot of land with a foundation built before 1 January 2011 could be sold free of 
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VAT on the ground that construction had begun prior to 1 January 2011, at a time 
when the rules prior to Law No 520 of 12 June 2009 applied. The 
Skatteministeriet did not challenge that decision before the courts. 
11 On 14 February 2022, the Landsskatteret ruled in another case in which the issue 
was similar to that in the present one. In its decision, the Landsskatteret ruled that 
four plots of land with foundations, where the construction of the foundations had 
begun before 1 January 2011, could be sold free of VAT on the ground that 
construction had begun before 1 January 2011, when the rules prior to Law 
No 520 of 12 June 2009 applied. The Skatteministeriet lodged an appeal against 
that decision of 14 February 2022. According to the information provided by the 
Skatteministeriet, proceedings in that case have been stayed pending the answer of 
the Court of Justice of the European Union to the question referred for a 
preliminary ruling in the present case. 
Brief summary of the facts and procedure 
12 The case concerns whether the transfer by I/S Nordre Strandvej Sæbys 
(‘Interessentskabet’) (the Partnership) of 16 plots of land on which foundations for 
residential buildings had been cast on the respective dates of supply in 2015 
constitutes either supplies of ‘building land’ which are subject to VAT or supplies, 
before first occupation, of buildings or parts of buildings and of the land on which 
the buildings stand, which, if the latter, are covered by the VAT exemption 
applicable until 1 January 2011, because the casting of the foundations was in all 
cases started and completed before 1 January 2011. 
13 In 2006, the Interessentskab acquired land which had previously been used as a 
campsite in a coastal area. In 2008, the Interessentskab subdivided a number of 
plots of land from this land. Several of the subdivided plots were developed in 
January 2009 with the establishment of connections for electricity, water, heating 
and sewerage. 
14 In the autumn of 2010, on the basis of building permits which the Interessentskab 
had obtained from the municipal building authority, foundations were cast on 
some of the subdivided plots. The casting of the foundations began and was 
completed before 1 January 2011. 
15 The Interessentskab transferred 16 plots of land with pre-cast foundations to a 
private limited company by way of a non-cash contribution on 1 January 2015. 
Subsequently, plots have been sold by the successors of that limited liability 
company to private individuals. 
16 By contracts of sale signed on 15 June 2015 and 26 October 2015 respectively, the 
Interessentskab also sold two plots of land with foundations to individuals. The 
Interessentskab sold another plot of land with a foundation to a private individual 
in respect of which there is no signed contract of sale, but which, according to the 
contract of sale, was sold by part-exchange on 1 October 2015. It is apparent from 
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the contracts of sale that the purchasers took on the properties with a building 
project in progress whereby, at the time of the conclusion of the contracts of sale, 
a plinth had been established for the building project in progress, and that the 
purchasers, as part of the overall transaction, received a sketch project showing 
the completed construction of the property. 
17 In respect of five of the plots in question, residential buildings have been 
constructed on foundations cast in 2010 after the supply by the Interessentskab in 
2015. In respect of eight plots of land, residential buildings have been built on the 
land, but the buildings were not constructed on foundations cast in 2010; 
foundations were on the land in 2015 when the Interessentskab made the supply. 
As regards the remaining three plots, the foundations cast in 2010 are still in 
place, but residential buildings have not yet been constructed on them. 
18 By decision of 28 September 2017, SKAT (the Danish tax authority) increased the 
VAT payable by the Interessentskab, making it liable inter alia for VAT on the 16 
plots. SKAT was of the opinion that the supply of the 16 plots with foundations 
constituted a supply of ‘building land’ subject to VAT pursuant to 
Paragraph 13(1)(9)(b) of the Law on VAT. That decision was challenged before 
the Landsskatteret. In its decision of 1 September 2021, the Landsskatteret found 
that the supply of those 16 plots of land were not transactions subject to VAT 
under Paragraph 13(9)(b) of the Law on VAT and Paragraph 4(b) of the Law on 
VAT, but rather transactions exempt from VAT under Paragraph 13(1)(9) of the 
Law on VAT previously in force, which exempted from VAT all supplies of 
immovable property. 
19 In its decision, the Landsskatteret took the view that it was established that the 
Interessentskab had started casting the foundations of the 16 plots before 
1 January 2011 and that the plots in question were acquired before the submission 
of Draft Law No 203 of 22 April 2009, which proposed the introduction of VAT 
on supplies of immovable property, and that the planning had begun before that 
draft law was submitted. 
20 By application of 1 December 2021, the Skatteministeriet brought an action 
challenging the Landsskatteretten’s decision before the Retten i Aalborg (Aalborg 
District Court), which referred the case to the Vestre Landsret (High Court of 
Western Denmark) in view of the principles at issue in the case. 
21 By order of 23 November 2022, the Vestre Landsret decided to refer a question to 
the Court of Justice of the European Union for a preliminary ruling under 
Article 267 TFEU. 
Principal arguments of the parties in the main proceedings 
22 The Skatteministeriet submits that the case in the main proceedings concerns 
building land which is subject to VAT and that the fact that foundations have been 
built on that land does not change that situation. According to the 
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Skatteministeriet, it follows from Article 2(1)(a) of the VAT Directive that the 
supply of goods for consideration within the territory of a Member State by a 
taxable person acting as such is subject to VAT. That directive also allows 
Member States to exempt the supply of land ‘which has not been built on’ other 
than the supply of ‘building land’ as referred to in point (b) of Article 12(1). The 
Skatteministeriet also emphasises that the definition of which land is to be 
regarded as ‘building land’ requires Member States to comply with the objective 
of Article 135(1)(k) of the VAT Directive, the sole purpose of which is to exempt 
from VAT supplies of land which has not been built on and is not intended to 
support a building, and it follows from this, in conjunction with Article 2(1)(a) of 
that directive, that any supply of building land made for consideration by a taxable 
person acting as such must, in principle, be subject to VAT. 
23 Member States’ discretion with regard to the definition of the term ‘building land’ 
is limited by the scope of the term ‘building’, which has been defined very 
broadly by the EU legislature in the first subparagraph of Article 12(2) of the 
VAT Directive as including ‘any structure fixed to or in the ground’. However, 
not every object is to be regarded as a ‘building’ within the meaning of the VAT 
Directive simply because it is fixed to the ground. 
24 According to a common linguistic understanding, the Danish word ‘konstruktion’ 
includes, for example, a building. Such a common linguistic understanding is also 
common to the term ‘structure’ in the English version of the VAT Directive and to 
the term ‘construction’ in the French version. The same is true of the term 
‘Bauwerk’ in the German version, which is used as the defining word for 
‘Gebäude’. A structure in the form of a ‘building’ is thus, according to a common 
linguistic understanding, characterised by the fact that it is built and composed of 
various individual parts (building parts), which together form a structure intended 
for a purpose. 
25 Moreover, a foundation for a residential building cannot be regarded as ‘parts of a 
building’ within the meaning of the VAT Directive, since a supply of ‘parts of a 
building’ can be considered to exist only if the part of the building supplied can be 
occupied (put into use) and is thus completed, which in practice is the case when 
there is a phased supply of, for example, apartments in a residential building. 
26 The Interessentskab submits that the land supplied consists of buildings or parts 
of buildings and the land on which they stand, within the meaning of the VAT 
Directive, which are exempt from VAT. 
27 The Interessentskab has asserted that the land on which it cast and completed 
foundations before 1 January 2011 changed its nature for VAT purposes from 
building land to buildings and the land on which they stand. That change occurred 
at the time when the casting of foundations on the land in question began, which 
was in autumn 2010. In any event, the change occurred at the latest at the time 
when the foundations were completed, which was before 1 January 2011. 
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28 The Interessentskab is also of the opinion that there is no VAT liability in respect 
of the 16 building plots, as the construction, namely the casting of the foundations, 
had started before 31 December 2010. 
29 The supplies of plots of land with pre-cast foundations made by the 
Interessentskab in 2015 must therefore be regarded for VAT purposes as buildings 
or parts of buildings and the land on which they stand. The foundations of the 16 
plots were fully functional at the time of supply in 2015, as the parties agree. 
Since VAT is payable only in respect of buildings or parts of buildings and the 
land on which they stand where construction began after 31 December 2010, the 
supplies are exempt from VAT. Under Danish law, the starting date for new 
construction is the date on which casting of the foundations begins. As pre-cast 
foundations had been constructed on the land in question which is the subject of 
the main proceedings before 1 January 2011, there is therefore no legal basis for 
charging VAT on the supplies, as structures fixed to or in the ground had been 
established on the land before 1 January 2011. 
30 The first sentence of Article 12(2) of the VAT Directive defines what is to be 
understood by a building for VAT purposes. The term building is defined in the 
first sentence of Article 12(2) as ‘any structure fixed to or in the ground’. Pre-cast 
foundations meet the definition in the first sentence of Article 12(2) of the VAT 
Directive. A pre-cast foundation is, first of all, a ‘structure’. Second, a pre-cast 
foundation is ‘fixed to or in the ground’ because it cannot be moved immediately. 
Third, a pre-cast foundation is covered by the broad scope of the term building, 
which specifically covers ‘any’ structure fixed to or in the ground. 
31 A foundation is a structure fixed to or in the ground and is therefore a building for 
VAT purposes pursuant to the first sentence of Article 12(2) of the Directive. The 
fact that the Danish implementation of this provision (see the VAT Regulation) 
contains additional conditions stating that structures fixed to or in the ground must 
also be completed for the purpose for which they are intended before they can be 
classified as buildings for VAT purposes does not mean that they should not be 
regarded as buildings for VAT purposes. 
Brief summary of the basis for the request for a preliminary ruling 
32 The Court of Justice has held that the Member States’ discretion with regard to the 
definition of the term ‘building land’ is limited by the scope of the term 
‘building’, which, according to the Court, has been defined very broadly by the 
EU legislature in Article 12(2) of the VAT Directive as including ‘any structure 
fixed to or in the ground’ (see the judgment in KPC Herning, paragraph 54, and 
the judgment in Icade Promotion, paragraph 51). 
33 The parties agree on the need to refer to the Court of Justice of the European 
Union a question on how the term ‘building land’ in Article 12(1)(b) of the VAT 
Directive is to be delimited in relation to the term ‘building’ and the land on 
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which the building stands under Article 12(1)(a) and the first sentence of 
Article 12(2) of the VAT Directive. 
34 The Vestre Landsret takes the view that the case-law of the Court of Justice has 
not yet clarified the criteria and elements of interpretation that must be taken into 
account when assessing whether a ‘building’ can be considered to exist, including 
whether a plot of land with a pre-cast foundation is to be regarded as building land 
under Article 12(3) of the VAT Directive or as a building or part of a building and 
the land on which the building stands before first occupation under Article 12(2) 
of the VAT Directive, that would enable it – without a reference for a preliminary 
ruling – to decide whether a plot of land which, at the time of supply, is provided 
with a pre-cast foundation for a residential building, and on which a residential 
building is also subsequently constructed, is to be regarded as ‘building land’ 
within the meaning of the VAT Directive or as ‘a building or parts of a building 
and … the land on which it stands’, within the meaning of the Directive. 
35 For those reasons, the Vestre Landsret has referred the above question to the Court 
of Justice for a preliminary ruling. The main proceedings are stayed pending the 
answer of the Court of Justice.