Opinion of the Advocate General — ECLI:EU:C:2024:222
Date: 2024-03-07
Language of the case: Latvian
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Latvia

Translation C-87/23 – 1 
Case C-87/23 
Request for a preliminary ruling 
Date lodged: 
15 February 2023 
Referring court: 
Administratīvā apgabaltiesa 
Date of the decision to refer: 
14 February 2023 
Applicant: 
Biedrība ‘Latvijas Informācijas un komunikācijas tehnoloģijas 
asociācija’ 
Defendant: 
Valsts ieņēmumu dienests 
  
ADMINISTRATĪVĀ APGABALTIESA (REGIONAL ADMINISTRATIVE 
COURT, LATVIA) 
[…] 
DECISION 
Riga,        14 February 2023 
The Administratīvā apgabaltiesa (Regional Administrative Court), […] 
[composition of the court], 
in the administrative proceedings brought before it […], 
has determined 
Facts 
[1] In 2016, the applicant association, Latvijas Informācijas un komunikācijas 
tehnoloģijas asociācija (‘the Association’), was awarded contracts to implement 
two projects financed by EU funds, namely, Project No 1.2.2.1/16/A/003 ‘IKT 
EN 
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profesionāļu apmācības inovāciju veicināšanai un nozares attīstībai’ (Training of 
ICT professionals for the promotion of innovation and development of industry; 
‘the ICT Project’) and Project No 1.2.2.3/16/1/002 ‘Mazo un mikro komersantu 
apmācības inovāciju un digitālo tehnoloģiju attīstībai Latvijā’ (Training of micro 
and small enterprises for the development of innovation and digital technologies 
in Latvia; ‘the MSE Project’). 
In connection with the implementation of the ICT Project, the Association 
concluded Contract No 1.2.2.1/16/A/003 with the Centrālā finanšu un līgumu 
aģentūra (Central Finance and Contracting Agency, ‘the CFLA’) on 13 June 2016, 
while, for the purposes of implementing the MSE Project, the Association 
concluded Contract No 1.2.2.3/16/1/002 with the CFLA on 5 December 2016. 
[2] The implementing provisions for the ICT Project are laid down in Ministru 
kabineta 2015.gada 27.oktobra noteikumi Nr. 617 «Darbības programmas 
“Izaugsme un nodarbinātība” 1.2.2.specifiskā atbalsta mērķa “Veicināt inovāciju 
ieviešanu komersantos” 1.2.2.1.pasākuma “Atbalsts nodarbināto apmācībām” 
pirmās projektu iesniegumu atlases kārtas īstenošanas noteikumi» (pamata 
redakcijā) (Decree of the Council of Ministers No 617 of 27 October 2015 laying 
down ‘Implementing provisions for the first stage of the project selection process 
of the operational programme “Growth and Employment”, specific aid objective 
1.2.2. “Promoting the integration of innovation in undertakings”, measure 1.2.2.1. 
“Support for employee training”’ (original wording); ‘Decree No 617’). It 
provides that a project may be proposed by an association which complies with 
the additional conditions laid down in that decree (paragraph 10). Funding is 
granted under the project for the training of employees of undertakings in the 
areas specified in the annex to that decree (paragraph 18). In addition, the training 
provider is any legal or natural person who complies with the conditions laid 
down in that decree (paragraph 20). The recipient of funding to implement the 
project purchases the necessary goods and services in accordance with the 
legislation on tendering procedures (paragraph 29). Aid is granted under that 
project in the form of a subsidy (paragraph 42). 
[3] The provisions for implementation of the MSE Project are laid down in 
Ministru kabineta 2016.gada 14.jūnija noteikumi Nr. 365 «Darbības programmas 
“Izaugsme un nodarbinātība” 1.2.2. specifiskā atbalsta mērķa “Veicināt inovāciju 
ieviešanu komersantos” 1.2.2.3.pasākuma “Atbalsts IKT un netehnoloģiskām 
apmācībām, kā arī apmācībām, lai sekmētu investoru piesaisti” īstenošanas 
noteikumi» (pamata redakcijā) (Decree of the Council of Ministers No 365 of 
14 June 2016 laying down ‘Implementing provisions for the operational 
programme “Growth and Employment”, specific aid objective 1.2.2. “Promoting 
the integration of innovation in undertakings”, measure 1.2.2.3. “Support for ICT 
and non-technological training and training for attracting investors”’ (original 
wording); ‘Decree No 365’). 
In accordance with that decree, the entity which proposes the project may be any 
association or authority of the direct administration which complies with the 
LATVIJAS INFORMĀCIJAS UN KOMUNIKĀCIJAS TEHNOLOĢIJAS ASOCIĀCIJA 
 
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additional conditions laid down in that decree (paragraph 13). Support is provided 
under that project for the necessary training to ensure that innovation in matters 
relating to products, processes, marketing and organisation is integrated in the 
undertaking (paragraph 3). The funding recipient uses external suppliers of 
(training) services to carry out the eligible actions set out in that decree 
(paragraph 27). Under that measure, aid is granted to final beneficiaries in the 
form of a subsidy. The subsidy is granted indirectly by way of the provision of 
training (paragraph 56). The funding recipient delivers the aid to the final 
beneficiaries (paragraph 57). 
[4] As part of the ICT Project, the Association concluded a number of contracts 
with companies to supply it with training services. The contracts stipulate that the 
Association will make payment to the undertaking supplying the training services 
once the training recipients have paid in full for the training course received, the 
necessary project documents have been submitted and a record of acceptance and 
delivery has been signed. 
In connection with the project, the Association also concluded contracts with the 
recipients of the training services. In accordance with those contracts, the recipient 
of the training service or the final beneficiary of the aid undertakes to pay the 
Association the costs of the training course and value added tax (‘VAT’) in 
accordance with the invoices issued by the Association. In certain cases, the final 
beneficiary also undertakes, under the contract, to pay the Association an 
‘administration fee’ of 5% or 10% of the amount of aid granted, plus VAT. For its 
part, the Association undertakes to transfer the amount of the aid to the final 
beneficiary in accordance with the decision on the grant of State aid and the 
intensity of the aid within 10 days of receipt of the amount of the aid from the 
CFLA. 
In accordance with the contracts included in the case file and the explanations 
provided by the Association, under the ICT Project, the Association invoiced the 
training recipients for the training courses, including VAT, and declared those 
courses as taxable transactions in its VAT returns. The training recipients paid the 
Association. Once the training finished, the supplier of training services invoiced 
the Association for the total cost of the training service supplied, inclusive of 
VAT, which the Association paid and declared as input tax. After the project 
ended, the Association transferred the funding received from the CFLA to the 
recipients of the training services based on the intensity of the aid and also issued 
tax invoices to those recipients for administration of the ICT Project in the amount 
of 5% or 10% of the amount of the aid. 
 
 
 
 
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ICT Project 
 
[5] In connection with the MSE Project, the Association also concluded a 
contract with an undertaking for the provision of training services to micro and 
small enterprises. The contract provides that the Association is to pay the selected 
undertaking for the training services supplied in accordance with invoices issued 
by that undertaking, on which VAT is also to be included. Under that project, a 
three-party contract was also concluded between the Association, the supplier of 
the training service and the undertaking in receipt of the training service. Under 
that contract, the training recipient undertakes to fund the training jointly, while 
the training provider undertakes to transfer the amount of the joint payment to the 
Association. 
The invoice flows and payment for the MSE Project are shown schematically in 
the following diagram. 
3.  
After the training course, 
invoice for the full amount 
of the course, including 
VAT 
SUPPLIER OF 
THE TRAINING 
SERVICE 
6.  
Payment of 30%-
70% of the aid 
excluding VAT 
CFLA 
5.  
Reports on 
execution of 
the project 
1. Invoice for the training 
course including VAT 
2. Payment for the training 
course including VAT 
7. Payment of 30%-70% of the 
aid without VAT 
8. Invoice for administration of 
the project in the amount of 
5%-10% of the amount of the 
aid including VAT 
9. Payment for 
administration of the 
project 
ASSOCIATION 
RECIPIENT OF 
THE TRAINING 
SERVICE 
4. 
Payment for the 
course including 
VAT 
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MSE Project 
 
 
[6] During an audit, the State tax administration (‘the Administration’) adopted 
a total of eight decisions in 2019 and 2021, pursuant to which it issued the 
Association, for the period from January to October 2018, with a notice of 
additional assessment in the amount of EUR 87 299.37 in respect of VAT, plus 
default interest of EUR 7 707.52 and a fine of EUR 611.96; it also refused to 
reimburse the overpaid VAT for the months of July, September, October, 
November and December 2018 and the months of February, March, May and 
December 2019 in the total amount of EUR 101 363.24. 
The Administration stated in its decisions that, in accordance with Decrees No 
365 and No 617, the ICT and MSE projects could be carried out by an association 
or an administrative authority but not by an undertaking. In its view, since the 
Association was created to achieve the objectives set out in its statutes, which 
have a not-for-profit purpose, and since, also, it was not envisaged that any profit 
would be made from the implementation of the projects, those projects were not 
carried out as part of the Association’s economic activity. According to the 
CFLA TRAINING 
RECIPIENT 
SUPPLIER OF THE 
TRAINING 
SERVICE 
7.  
Payment of 
70% of the 
aid 
excluding 
VAT 
6. 
Reports on 
execution of 
the project 
1.  
Payment of 30% of 
the cost of the 
training course 
including VAT 
2. Invoice for the amount of 
30% of the cost of the course 
including VAT 
3. Payment of the amount of 
30% of the cost of the course 
including VAT 
4. When the course has finished, 
invoice for the full amount 
including VAT 
5. Payment of the full amount 
including VAT 
ASSOCIATION 
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Administration, in practice, the Association dealt with project management and 
administered the flow of aid payments from EU funds. The Association itself did 
not supply training services; those services were supplied by undertakings 
contractually linked to the Association. Accordingly, in its view, the Association 
is not entitled to deduct the input tax. 
[7] The Association submitted that its status as an association does not affect its 
right to deduct input tax. It states that it is registered as a taxable person liable for 
VAT and, while implementing the ICT and MSE projects, it supplied training 
services as an intermediary. It maintains that training is a transaction subject to 
VAT. Accordingly, it was required to issue tax invoices and, consequently, it is 
entitled to deduct the input tax. 
[8] The forms of order sought by the applicant were upheld by judgments of the 
Administratīvā rajona tiesa (District Administrative Court, Latvia). The 
Administration appealed against those judgments. All the cases were joined in a 
single set of proceedings before the Administratīvā apgabaltiesa (Regional 
Administrative Court). 
Applicable legislation 
European Union law 
[9] Council Directive 2006/112/EC of 28 November 2006 on the common 
system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’). 
Article 2(1)(c) of the VAT Directive provides that the supply of services for 
consideration within the territory of a Member State by a taxable person acting as 
such is to be subject to VAT. 
Pursuant to Article 9(1) of the VAT Directive, ‘taxable person’ means any person 
who, independently, carries out in any place any economic activity, whatever the 
purpose or results of that activity. 
Under Article 24(1) of the VAT Directive, ‘supply of services’ means any 
transaction which does not constitute a supply of goods. 
Article 28 of the VAT Directive provides that, where a taxable person acting in 
his own name but on behalf of another person takes part in a supply of services, he 
shall be deemed to have received and supplied those services himself. 
Article 73 of the VAT Directive provides that, in respect of the supply of goods or 
services, other than as referred to in Articles 74 to 77, the taxable amount is to 
include everything which constitutes consideration obtained or to be obtained by 
the supplier, in return for the supply, from the customer or a third party, including 
subsidies directly linked to the price of the supply. 
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For its part, in accordance with Article 168(a) of the VAT Directive, in so far as 
the goods and services are used for the purposes of the taxed transactions of a 
taxable person, the taxable person is to be entitled, in the Member State in which 
he carries out these transactions, to deduct, from the VAT which he is liable to 
pay, VAT due or paid in that Member State in respect of supplies to him of goods 
or services, carried out or to be carried out by another taxable person. 
National law 
[10] The VAT Directive was transposed into Latvian law by the Pievienotās 
vērtības nodokļa likums (Law on Value Added Tax), adopted on 29 November 
2012 (Latvijas Vēstnesis, 2012, No 197) (‘the Law on VAT’). 
In accordance with Article 5(1)(2) of that Law, VAT is to be levied on the supply 
of services for consideration in the context of an economic activity. 
In accordance with Article 4(1) of the Law on VAT, ‘economic activity’ means 
any systematic, independent activity carried out for consideration (including any 
activity of producers, traders or persons supplying services, including agricultural 
activities). 
Article 1(2) of the Law on VAT provides that consideration is the monetary value 
of the goods and services which the supplier of goods or services receives or 
should receive from the recipient of the goods or services or from another person 
for the supply of goods or services, excluding VAT, irrespective of whether 
payment is made in full or in part. 
Article 1(14)(c) of the Law on VAT provides that the supply of services is a 
transaction which does not constitute a supply of goods and that, for the purposes 
of that Law, the leasing of goods is also to be deemed to be a supply of services. 
Article 6(3) of the Law on VAT provides that, where a taxable person acting in his 
own name but on behalf of another person takes part in a supply of services, he is 
to be deemed to have received and supplied those services himself. 
For its part, Article 92(1)(1) of the Law on VAT provides that, where goods are 
purchased and services are received for the purpose of carrying out taxable 
transaction or transactions effected in other countries, which would be taxable if 
they were carried out on national territory, the input tax will comprise the amounts 
of tax included on the tax invoices which, in respect of goods purchased or 
services received, are received from other registered taxable persons. 
[11] The Biedrību un nodibinājumu likums (Law on Associations and 
Foundations) was adopted on 30 October 2003 (Latvijas Vēstnesis, 2003, No 161). 
Article 2(1) of the Law on Associations and Foundations provides that 
associations are voluntary unions of persons set up to achieve the not-for-profit 
objectives laid down in their statutes. 
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In accordance with Article 7(1) of that Law, associations and foundations are 
entitled to pursue, on an ancillary basis, an economic activity related to the 
maintenance or exploitation of their assets and also to pursue another economic 
activity for the purpose of achieving the objectives of the association or 
foundation. 
Reasons why uncertainties exist regarding the interpretation of the EU legislation 
[12] According to the case-law of the Court of Justice of the European Union 
(‘the Court of Justice’), the right to deduct VAT is a fundamental principle of the 
common system of VAT and in principle may not be limited. That right is 
exercisable immediately in respect of all the taxes charged on input transactions. 
The deduction system is intended to relieve the trader entirely of the burden of the 
VAT payable or paid in the course of all his economic activities. The common 
system of VAT consequently ensures neutrality of taxation of all economic 
activities, whatever their purpose or results, provided that they are themselves 
subject, in principle, to VAT (judgment of the Court of Justice in Marle 
Participations, C-320/17, EU:C:2018:537, paragraphs 24 to 25 and the case-law 
cited). 
[13] However, under Article 168(a) of the VAT Directive, in order to have a right 
of deduction, two conditions must be fulfilled. First, the person concerned must be 
a ‘taxable person’, within the meaning of that directive. Second, the goods or 
services relied on to confer entitlement to that right must be used by the taxable 
person for the purposes of his taxed output transactions, and, as inputs, those 
goods or services must be supplied by another taxable person (judgment of the 
Court of Justice in The Chancellor, Masters and Scholars of the University of 
Cambridge, C-316/18, EU:C:2019:559, paragraph 23 and the case-law cited). 
[14] As regards the first condition, in accordance with Article 9 of the VAT 
Directive, ‘taxable person’ means any person who, independently, carries out in 
any place any economic activity, whatever the purpose or results of that activity. 
An activity is, as a general rule, categorised as ‘economic’ where it is permanent 
and is carried out in return for remuneration which is received by the person 
carrying out the activity. For its part, in order to classify a supply of goods or 
services as a transaction for consideration, there must be a direct link between the 
goods or service provided and the consideration received (judgment of the Court 
of Justice in The Chancellor, Masters and Scholars of the University of 
Cambridge, C-316/18, EU:C:2019:559, paragraphs 20 and 21, and judgment of 
the Court of Justice in Marle Participations, C-320/17, EU:C:2018:537, 
paragraphs 19 and 23). 
[15] Regarding the second condition, it follows from the case-law of the Court of 
Justice that the right to deduct input tax requires the goods and services obtained 
by the taxable person to be used for the purposes of his or her taxed transactions. 
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Before the taxable person is entitled to deduct input VAT, the existence of a direct 
and immediate link between a particular input transaction and a particular output 
transaction or transactions giving rise to the right to deduct is, in principle, 
necessary. The right to deduct VAT charged on the acquisition of input goods or 
services presupposes that the expenditure incurred in acquiring them is a 
component of the price of the output transactions giving rise to the right to deduct 
(judgment of the Court of Justice in Sonaecom, C-42/19, EU:C:2020:913, 
paragraph 41 and the case-law cited). 
On the other hand, where goods or services acquired by a taxable person are used 
for purposes of transactions that are exempt or do not fall within the scope of 
VAT, no output tax can be collected or input tax deducted (judgment of the Court 
of Justice in Ryanair, C-249/17, EU:C:2018:834, paragraph 29 and the case-law 
cited). 
[16] In the present case, the dispute concerns the right of the Association, as a 
not-for-profit organisation, to deduct input tax paid on services acquired in the 
context of a project to implement a State aid scheme financed by the European 
Regional Development Fund. 
[17] The implementing provisions for the ICT and MSE projects are laid down in 
Decrees No 617 and No 365. In accordance with paragraph 10 of Decree No 617 
and paragraph 13 of Decree No 365, only an association or authority of the direct 
administration may propose a project. It follows that the State has restricted the 
subjective scope of persons authorised to implement the projects in question, by 
excluding undertakings from that scope. 
In accordance with Article 2(1) of the Law on Associations and Foundations, 
associations are voluntary unions of persons set up to achieve the objectives laid 
down in their statutes; those objectives are not-for-profit. In addition, associations 
are not prohibited from carrying on an economic activity, in addition to their main 
activity (which is to achieve the objectives laid down in their statutes), provided 
that that economic activity is related to the maintenance and exploitation of the 
association’s assets or is otherwise directed at the achievement of the objectives 
set out in its statutes (in other words, it is aimed at generating revenue which is 
used to achieve the association’s aims) (judgment SKA-234/2019 of the Senāts 
(Supreme Court, Latvia) of 31 January 2019 
(LV:AT:2019:0131.A420299315.2.S), paragraph 6). 
The Court of Justice has held that the fact that a person may engage in commercial 
activities only on an ancillary basis and the fact that the activity is for profit are 
not decisive for the purposes of finding that they are engaging in an economic 
activity (judgment of the Court of Justice in Case C-263/[15], EU:C:2016:392, 
paragraph 35). 
Accordingly, the fact, pointed out by the Administration, that the applicant in the 
present case is an association, that is to say, a not-for-profit organisation, and the 
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fact that an association is entitled to pursue an economic activity only on an 
ancillary basis, are not decisive when it comes to ruling on the question of 
whether the applicant is entitled to deduct input tax. 
At the same time, in the opinion of this Regional Administrative Court, the fact 
that undertakings are precluded from implementing the projects concerned could 
be relevant for the purposes of assessing whether the activity in question is 
economic in nature, since, although the VAT Directive gives a very wide scope to 
VAT, only activities of an economic nature are covered by that tax (judgment of 
the Court of Justice in The Chancellor, Masters and Scholars of the University of 
Cambridge, C-316/18, EU:C:2019:559, paragraph 20). 
[18] In accordance with Decrees No 617 and No 365, which lay down 
implementing provisions for the ICT and MSE projects respectively, the objective 
of those projects is to provide training to business operators in specific fields, by 
proving them with the necessary aid from the European Regional Development 
Fund. 
Pursuant to Decrees No 617 and No 365 and in accordance with the contracts 
concluded with the CFLA, the Association itself does not supply training services 
under those projects and instead acquires those services from commercial 
companies which in turn provide training to the aid recipients. Thus, in the present 
case, the Association’s activities do not generate any added value in relation to the 
training services supplied or any additional income derived directly from the 
provision of training services. In accordance with Decrees No 617 and No 365, 
the Association’s income from the implementation of the ICT and MSE projects 
consists of the payment of aid from the European Regional Development Fund for 
management of the project. Furthermore, VAT is not applicable to that 
consideration. 
Accordingly, it is possible to conclude that, in connection with the projects, the 
Association receives funding from the CFLA for European Regional Development 
Fund projects, is responsible for selecting the recipients of the aid and the 
suppliers of training service, and ensures the proper conduct and supervision of 
the process of training and distributing aid to the final beneficiaries. Those 
circumstances suggest that the Association’s activities in relation to the 
implementation of the ICT and MSE projects are, in practice, focused on 
administering funding from the European Regional Development Fund and 
managing those projects. 
In the light of those circumstances, there are doubts as to whether such activities 
are of an economic nature, which is a prerequisite for finding that, in 
implementing the projects concerned, the Association may be treated as a taxable 
person for the purposes of Article 9(1) of the VAT Directive. 
[19] In this case, the Association has stated, as an additional argument aimed at 
characterising its activities as activities of an economic nature, that the ICT 
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project issued invoices itself to the recipients of the training services for 
administration of the project, in the amount of between 5% and 10% of the 
amount of State aid funding. That is confirmed by the documents in the case file. 
However, in the opinion of this Regional Administrative Court, the fact that, in 
some instances, the Association issued tax invoices to the aid recipients for 
administration of the project does not, in itself, make the applicant’s activity 
economic in nature. Moreover, in accordance with the contract concluded with the 
CFLA, the administration costs of the ICT Project are included in that project as 
eligible costs whereas, under paragraph 2.1.13 of Annex 1 to that contract, double 
financing of the project is not permitted. 
[20] It is common ground in this case that, in implementing the ICT and MSE 
projects, the Association acquired training services from undertakings and 
declared the VAT included on the tax invoices from those undertakings as input 
tax. It is also common ground that the Association itself did not supply training 
services to the aid recipients. 
Article 28 of the VAT Directive provides that where a taxable person acting in his 
own name but on behalf of another person takes part in a supply of services, he 
shall be deemed to have received and supplied those services himself. 
This Regional Administrative Court believes that it is important to clarify 
whether, in the circumstances of this case and taking into account the fact that the 
Association does not actually supply training services, it is possible to treat it as a 
supplier of services within the meaning of Article 28 of the VAT Directive. 
[21] If the view is taken that the Association supplied training services to the aid 
recipients, it will be necessary to clarify the question of what would be the taxable 
amount in accordance with Article 73 of the VAT Directive. 
It is apparent from the documents in the case file that, under the MSE Project, the 
Association issued tax invoices to the aid recipients for the training services, on 
which only 30% of the cost of the service was included. However, the tax invoices 
of the undertakings which actually carried out the training services stated the full 
cost of the services. That created a situation in which the Association paid VAT 
on an amount constituting 30% of the actual cost of the services but deducted the 
input tax on the total cost of the training services. 
Accordingly, it is important to clarify whether, under the MSE Project, only that 
amount (30%) which the Association received from the aid recipients in 
accordance with the tax invoices issued should be regarded as taxable 
consideration or also the amount which the association received from the CFLA 
for provision of the training services in the form of payment of the aid. 
In the light of the foregoing considerations and pursuant to Article 267 of the 
Treaty on the Functioning of the European Union […] [reference to national 
procedural provisions], the Administratīvā apgabaltiesa (Regional Administrative 
Court) 
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decides 
To refer the following questions to the Court of Justice for a preliminary ruling: 
(1) Must Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax be interpreted as meaning that a not-
for-profit organisation whose activity is aimed at implementing State aid schemes 
financed by the European Regional Development Fund is to be treated as a taxable 
person who carries out an economic activity? 
(2) Must Article 28 of Council Directive 2006/112/EC of 28 November 2006 on 
the common system of value added tax be interpreted as meaning that an 
association which does not actually supply training services is nevertheless to be 
equated with a supplier of services where the services were acquired from another 
economic operator in order to ensure the implementation of a State aid project 
financed by the European Regional Development Fund? 
(3) Pursuant to Article 73 of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax, if a supplier of services receives 
only partial consideration from the recipient of the service for the service supplied 
(30%) but the remaining cost of the service is covered by an aid payment from the 
European Regional Development Fund, is the taxable consideration the total 
amount received by the supplier of services from both the recipient of the service 
and a third party in the form of an aid payment? 
To stay proceedings until the Court of Justice issues a decision. 
This decision is not open to appeal. 
[…] [signatures and formalities] […]