Opinion of the Advocate General — ECLI:EU:C:2002:551
Date: 2002-09-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary of the Judgment 
Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Taxable amount — Supply of goods — Option for the Member 
States to exclude a transfer of a totality of assets or part thereof — Scope 
(Council Directive 77/388, Art. 5(8)) 
I - 14393 
SUMMARY — CASE C-497/01 
Article 5(8) of Sixth Directive 77/388 must 
be interpreted as meaning that when a 
Member State has made use of the option 
in the first sentence of that paragraph to 
consider that, for the purposes of value 
added tax, no supply of goods has taken 
place in the event of a transfer of a totality 
of assets, that no-supply rule applies — 
without prejudice to use of the possibility 
of restricting its application in the circum­
stances laid down in the second sentence of 
the same paragraph — to any transfer of a 
business or an independent part of an 
undertaking, including tangible elements 
and, as the case may be, intangible elements 
which, together, constitute an undertaking 
or a part of an undertaking capable of 
carrying on an independent economic 
activity. The transferee must however 
intend to operate the business or the part 
of the undertaking transferred and not 
simply to immediately liquidate the activity 
concerned and sell the stock, if any. 
On the other hand, nothing in the provision 
cited above requires that the transferee 
pursue prior to the transfer the same type 
of economic activity as the transferor. 
Further, the restriction by a Member State 
of the application of that no-supply rule to 
transfers of a totality of assets where the 
transferee holds the authorisation for the 
pursuit of the economic activity which that 
totality enables to be carried on infringes 
that provision. 
(see paras 45-46, 55, 
operative part 1-2) 
I - 14394