Opinion of the Advocate General — ECLI:EU:T:2025:973
Date: 2025-10-22
Language of the case: Dutch

Translation  T-575/24 – 1 
Case T-575/24 
Request for a preliminary ruling 
Date lodged:  
22 October 2024 
Referring court:  
Hof van beroep te Antwerpen (Belgium) 
Date of the decision to refer:  
11 October 2024 
Applicant:  
Belgian State v Federal Public Service Finance 
Defendants:  
Digipolis Antwerpen AG 
District09 AG 
  
Hof van beroep (Court of Appeal) 
Antwerp 
Judgment 
Chamber B6M 
Civil Matters 
BELGIAN STATE – FPS FINANCE […], in the person of the Minister for 
Finance, […] acting on behalf of: 
1) the GENERAL ADMINISTRATION OF TAX COLLECTION AND 
RECOVERY, REPRESENTED BY THE COLLECTION-RECOVERY 
ADVISOR OF THE ANTWERP 1 RECOVERY FROM LEGAL ENTITIES 
ANTWERP 1 TEAM, […] and of the GENERAL ADMINISTRATION OF 
THE SPECIAL TAX INSPECTORATE (AABI), REPRESENTED BY THE 
ADVISOR-GENERAL OF THE AABI ANTWERP, […] plaintiff on appeal, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 10. 2024 – CASE T-575/24 
 
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2) the GENERAL ADMINISTRATION OF TAXES, ADMINISTRATION 
OF LARGE ENTERPRISES, ACTING ON BEHALF OF THE ADVISOR-
GENERAL – DIRECTOR OF THE ANTWERP CENTRE FOR LARGE 
ENTERPRISES, […] 
plaintiff on appeal, […] 
against the judgment of Chamber AFi1 of the Rechtbank van eerste aanleg 
Antwerpen (Court of First Instance, Antwerp), Antwerp Division of 7 October 
2022, […] against 
1. AG DIGIPOLIS ANTWERPEN (as legal successor to DIGIPOLIS), 
[…] 
2. AG DISTRICT09 (as legal successor to DIGIPOLIS), […] 
respondents, 
[…] [Or. 2] 
***** 
[…] [Remarks on national procedural law] 
I. Facts 
1 In 2003, the City of Ghent, OCMW Ghent, City of Antwerp and OCMW Antwerp 
set up a public legal entity in the form of a commissioning association called 
Digipolis, being a form of cooperation with legal personality and conferral of 
management. 
The Articles of Association stipulated that Digipolis was subject to the provisions 
of the Decreet van Intergemeentelijke Samenwerking (Decree on Intermunicipal 
Cooperation) of 6 July 2001 (Article 2). 
Article 4 of the Articles of Association stipulated: 
‘The social objective of the commissioning association is the management, 
operation, development and promotion of telematics and its applications. 
The association will continue to act as a strategic instrument for each of its 
participants. To that end, it will align its policy, strategy and operation with 
those of the participants. The participants hereby aim to identify 
opportunities for mutual synergies, carry out joint projects and organise 
joint telematics services that are more optimal from a business and 
functional point of view for each of the individual participants than if they 
were organised separately by the participants.’ 
DIGIPOLIS 
 
3 
Article 7 of the Articles of Association stipulated that the founding participants of 
the association were the cities of Ghent and Antwerp and the public social welfare 
centres (OCMWs) of the cities of Ghent and Antwerp. 
The City of Ghent received 200 shares, the City of Antwerp 100. The OCMWs 
were not given any shares. 
2 In 2010, there was an amendment to the Articles of Association. 
Article 7 of the Articles of Association was amended as follows: 
‘The association consists of founding participants and, where appropriate, 
participants that join the association. The founding participants are those 
that [Or. 3] established the association, in particular the cities of Ghent and 
Antwerp and the public social welfare centres of the cities of Ghent and 
Antwerp. Participants that could potentially join are the externally 
autonomous agencies of the founding participants, inasmuch as they can 
join under the Decree on Intermunicipal Cooperation.’ 
In the register of participants, the following joining participants were listed, 
without allotment of shares: 
- AG Stedelijk Onderwijs Antwerpen 
- AG Kinderopvang Antwerpen 
- Zorgbedrijf Antwerpen 
- AG Stadsontwikkeling Gent 
3 Digipolis provided ICT services and related supplies of computer equipment to 
members and non-members. 
4 A VAT audit for the years 2014, 2015 and 2016 was conducted in 2017. 
The Belgian State considered that the fees and contributions charged to Digipolis 
members not envisaged by Article 6 of the btw-wetboek (VAT Code) should be 
subject to VAT. According to the Belgian State, those legal entities were to be 
considered as externally independent agencies and had to be regarded as subject to 
Article 4 and Article 44 §2, 2° of the VAT Code. 
An official report was issued on 15 December 2017. The following amounts were 
claimed from Digipolis: 
- EUR 6 090 547 in VAT 
- EUR 1 218 100 by way of a fine (20%) 
- Plus interest. 
REQUEST FOR A PRELIMINARY RULING OF 11. 10. 2024 – CASE T-575/24 
 
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These amounts were included in VAT enforcement order No 500/1901/47254. 
On 9 January 2018, a further official report was issued taking into account 
adjusted figures, and the following amounts were claimed from Digipolis: 
- EUR 5 644 297 in VAT 
- EUR 1 128 800 by way of a fine (20%) 
- Plus interest. 
5 In view of the position taken by the VAT administration for the previous years, 
for the financial years 2017, 2018, 2019 and 2020, Digipolis paid VAT on the fees 
charged to its members, not envisaged by Article 6 of the VAT Code, and 
exercised the right of deduction attached thereto. In the November and December 
2020 VAT returns, [Or. 4] Digipolis corrected this and reclaimed the VAT paid 
(VAT paid on fees was included in schedule 62, VAT deductions made were 
regularised through schedule 61). The Belgian State disputed this and refused the 
refund by decision dated 24 February 2021. 
6 On 7 October 2020 (for calendar years 2014, 2015 and 2016) and 19 March 2021 
(for calendar years 2017, 2018, 2019 and 2020), Digipolis filed a petition with the 
Antwerp Court of First Instance, Antwerp Division. 
7 In 2020, Digipolis transferred its business to AG Digipolis Antwerpen on the one 
hand and to AG District09 on the other. On 1 January 2021, Digipolis was 
dissolved and put into liquidation, with the liquidation closing on 30 June 2021. 
II. Claims at first instance and contested judgment 
1 Before the first judge, the respondents requested, in respect of calendar years 
2014, 2015 and 2016, that the contested enforcement order dated 18 December 
2017 and the contested official reports dated 15 December 2017 and 9 January 
2018 be set aside, or at least declared unfounded. As a minimum, they sought a 
ruling that the amounts claimed in the contested enforcement order and official 
reports were not due. They requested that the Belgian State be ordered to 
reimburse the sums wrongly paid plus moratorium interest. In the alternative, they 
requested that it at least be assumed that Digipolis qualifies as an ‘independent 
grouping of persons’, at least for the services that frame its social objectives. They 
requested, where appropriate, […]. 
In respect of calendar years 2017, 2018, 2019 and 2020, they requested that the 
contested decision dated 24 February 2021 be set aside, or at least declared 
unfounded. They requested as a minimum a ruling that the amounts of VAT 
claimed back through schedule 62 of the VAT returns for the months of 
November and December 2020 complied with what was included in Article 77 of 
the VAT Code, and also that said refunds were legal and lawful. They requested 
DIGIPOLIS 
 
5 
that the Belgian State be ordered to reimburse any amounts withheld plus 
moratorium interest. In the alternative, they requested that it at least be assumed 
that Digipolis qualifies as an ‘independent grouping of persons’, at least for the 
services that frame its social objectives.[…]. Strictly In the further alternative, 
they sought the reimbursement of the sums included in schedule 61 of the returns 
for the months of November and December 2020, amounting to 
EUR 7 176 894.79. [Or. 5] 
[…] 
2 The plaintiff on appeal sought a declaration that the defendants’ appeal 
claim was admissible but unfounded in respect of the financial years 2014, 2015 
and 2016 and that the defendants’ appeal claim was inadmissible and unfounded 
in respect of the financial years 2017, 2018, 2019 and 2020 […]. 
In respect of the calendar years 2017, 2018, 2019 and 2020, the plaintiff on appeal 
sought a declaration that the refunds as included in schedule 62 were inadmissible 
and that the refunds should be reversed plus interest. It requested that the 
‘emanation theory’, considering services provided to members of the 
commissioning association that do not fall within the scope of Article 6 of the 
VAT Code as not subject to VAT, be declared unlawful and that it be ruled that no 
legitimate expectations were created by the administration. 
It argued in in the alternative with respect to calendar years 2017, 2018, 2019 and 
2020 that the retroactive application of the old Article 44 §2, 1a of the VAT Code 
could not be allowed.[…] 
In the utmost alternative, it argued that the adjustments made in the November and 
December 2020 VAT returns should be reversed […]. 
3 The first judge declared the VAT claim, principal, fine and interest included 
and as contained in the contested official reports dated 15 December 2017 and 
9 January 2018 and the contested enforcement order No 500/1901/47254 in 
respect of the 2014, 2015 and 2016 financial years to be unfounded. She ordered 
the plaintiff on appeal to reimburse the amounts wrongfully withheld or paid plus 
moratorium interest. She reopened the debates to allow the parties to submit the 
necessary explanations, documents and calculations regarding the refund claim for 
the financial years 2017, 2018, 2019 and 2020 and to take a position in that 
regard.  
The first judge pointed out that the parties did not dispute that Digipolis qualified 
as a commissioning association and that the emanation theory applied to the 
participating public bodies within the meaning of Article 6 of the VAT Code, 
specifically that the commissioning association was acting in place of these public 
bodies. The court noted that the plaintiff on appeal thus accepted, on the basis of 
the Articles of Association submitted, that the four founding participants had 
waived their regulatory and management rights in respect of the telematics 
services and related applications. Furthermore, the first judge pointed out that 
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Article 10 of [Or. 6] the Decree of 6 July 2001 and VAT decision No ET.111.703 
dated 6 September 2006 made it clear that, in addition to municipalities and 
provinces, joint ventures such as autonomous municipal companies could also join 
the commissioning association. On that basis, the first judge ruled that by joining 
to the commissioning association Digipolis, which the participants had 
consciously chosen with knowledge of the applicable provisions, all participants 
had relinquished their regulatory and management rights with regard to the 
telematics services and related applications. Digipolis therefore performed the 
transactions as an extension of the participating members and those transactions 
did not constitute consideration for taxable transactions. There was therefore no 
need to make distinctions based on the VAT status of members. In that regard, the 
first judge referred to the reply of the Minister for Finance of 25 May 2018 to a 
parliamentary question that confirmed this. 
With regard to the financial years 2017, 2018, 2019 and 2020, the court ruled that 
the transactions carried out by Digipolis for its members did not fall within the 
scope of VAT application.[…] 
The plaintiff on appeal lodged an […] appeal against this judgment. 
III. Claims on appeal 
1 The Belgian State requests that the appeal be declared admissible and well 
founded and that the contested judgment be varied. It requests that the 
respondents’ claims be declared admissible but unfounded […]. 
It argues in the alternative with respect to calendar years 2014, 2015 and 2016 that 
the retroactive application of the former Article 44 §2, 1a of the VAT Code cannot 
be allowed. […]  
In respect of calendar years 2017, 2018, 2019 and 2020, it argues that the refunds 
as included in schedule 62 are without object, should be declared illegal and 
reimbursed to the state plus interest. It argues that the respondents should be 
ordered to declare and pay the VAT due on transactions to participating members 
for the years 2017, 2018, 2019 and 2020 plus interest. [Or. 7] 
It argues in the alternative with respect to calendar years 2017, 2018, 2019 and 
2020 that the retroactive application of the former Article 44 §2, 1a of the VAT 
Code cannot be allowed. […]  
In the utmost alternative, it argues that the adjustments made in the November and 
December 2020 VAT returns should be reversed […]. 
2 The respondents request that the appeal be declared admissible but 
unfounded and that the contested judgment be confirmed. 
DIGIPOLIS 
 
7 
They request in respect of calendar years 2014, 2015 and 2016 that the contested 
enforcement order dated 18 December 2017 and the contested official reports 
dated 15 December 2017 and 9 January 2018 be set aside, or at least declared 
unfounded. As a minimum, they seek a ruling that the VAT sums and incidentals 
claimed in the contested enforcement order and official reports are not due, and at 
least that any fine be accompanied by a deferral or at least substantially mitigated. 
They request that the Belgian State be ordered to reimburse the sums wrongly 
paid plus moratorium interest from 18 January 2018. Strictly in the alternative, 
they request that it at least be assumed that Digipolis qualifies as an ‘independent 
grouping of persons’, at least for the services that frame its social objectives. […]. 
In respect of calendar years 2017, 2018, 2019 and 2020, they request principally 
that the contested decision dated 24 February 2021 be set aside, or at least 
declared unfounded. They request as a minimum a ruling that the amounts of VAT 
claimed back through schedule 62 of the VAT returns for the months of 
November and December 2020 comply with what was included in Article 77 of 
the VAT Code, and also that said refunds are legal and lawful. They request that 
the Belgian State be ordered to reimburse any amounts withheld plus moratorium 
interest. Strictly in the alternative, they request that it at least be assumed that 
Digipolis qualifies as an ‘independent grouping of persons’, at least for the 
services that frame its social objectives. […]. Strictly in the alternative, in so far as 
the Court of Appeal considers that, or to the extent that, the amounts of VAT 
claimed back through schedule 62 of the VAT returns for the months of [Or. 8] 
November and December 2020 do not comply with what was included in 
Article 77 et seq. of the VAT Code or that they are not legal or lawful, they 
request repayment of the sums included in schedule 61 of the returns for the 
months of November and December 2020 under Article 77 et seq. of the VAT 
Code plus moratorium interest. 
[…] [Request that the plaintiff on appeal be ordered to pay costs.] 
IV. Assessment 
1 […] [Points on which the parties agree.] 
The dispute between the parties concerns whether the services provided by the 
commissioning association Digipolis to its members, other than the cities and 
OCMWs, namely Autonoom Gemeentebedrijf Stedelijk Onderwijs Antwerpen, 
Autonoom Gemeentebedrijf Kinderopvang Antwerpen, Autonoom 
Gemeentebedrijf voor Stadsontwikkeling Antwerpen, Zorgbedrijf Antwerpen and 
Autonoom Gemeentebedrijf Stadsontwikkeling Gent, are subject to VAT. 
2 Digipolis as established in 2003 qualifies as a commissioning association, 
being a form of cooperation with legal personality and conferral of management. 
Article 2 of its Articles of Association stipulated that it is subject to the provisions 
of the Decree on Intermunicipal Cooperation of 6 July 2001. 
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Article 10 of the Decree on Intermunicipal Cooperation of 6 July 2001 stipulated: 
‘Two or more municipalities may establish a joint venture with legal 
personality to achieve objectives belonging to one or more substantively 
related policy areas. Without prejudice to decree provisions to the contrary, 
in addition to municipalities and provinces, only autonomous municipal 
companies, public social welfare centres and their associations, in so far as 
they consist [Or. 9] exclusively of public legal entities, and other joint 
ventures, established in accordance with the provisions of this decree, may 
participate.’ 
It follows from Article 10 of the Decree on Intermunicipal Cooperation of 6 July 
2001 that, in addition to municipalities and provinces, other joint ventures such as 
autonomous municipal companies could join the commissioning association. 
Article 12 of the Decree on Intermunicipal Cooperation of 6 July 2001 stipulated: 
‘§1 
The municipalities decide on the conferral of management in accordance 
with the Articles of Association of the joint venture. 
Conferral of management means the entrusting by the participating 
municipalities to the joint venture of the implementation of decisions taken 
by them within the framework of its objectives, in the sense that the 
participating municipalities deny themselves the right to carry out the same 
task independently or jointly with third parties. 
§2 
There are three forms of joint venture with legal personality: 
1° project association: a joint venture without conferral of management that 
aims to plan, implement and control a clearly defined project; 
2° service-oriented association: a joint venture without conferral of 
management that aims to provide a clearly defined support service to the 
participating municipalities, possibly for different policy areas; 
3° commissioning association: a joint venture with conferral of management 
to which the participating municipalities entrust the implementation of one 
or more clearly defined competences relating to one or more functionally 
related policy areas.’ 
3 There is no dispute between the parties that the emanation theory applies to 
the participating public bodies, being the four founding members, namely the City 
of Ghent, OCMW Ghent, City of Antwerp and OCMW Antwerp. This theory 
implies that, given that the founding members have relinquished their regulatory 
DIGIPOLIS 
 
9 
and management rights in respect of telematics services (conferral of 
management), the commissioning association acts in place of these public bodies 
and should be considered as an extension of these public bodies. The parties agree 
that the sums paid by the founding members to the commissioning association do 
not therefore represent the price of a service but a financial contribution to the 
management costs and are therefore not subject to VAT. [Or. 10] 
The plaintiff on appeal points out that the emanation theory is an administrative 
tolerance created by Order No 148/1971 of 5 October 1971 and Order No 6/1975 
of 27 February 1975 and is reflected in the provisions applicable to 
commissioning associations in accordance with published decision No 
E.T.111.703 of 6 September 2006. It argues that this theory only applies to 
members targeted by Article 6 of the VAT Code. It contends that this theory does 
not apply to members subject to Article 4 and Article 44 § 2, 2° of the VAT Code 
such as autonomous municipal companies, namely associations governed by 
public law that are established by way of association and not by way of 
foundation. It points out that if this emanation theory were also to apply to 
members not targeted by Article 6 of the VAT Code, this would violate the 
principle of equality and would also violate the principle of neutrality and lead to 
distortion of competition, as they would then obtain a substantial VAT advantage 
over private competitors operating in the same market. This is because members 
who are exempt taxpayers would obtain their supplies and services free of VAT, 
whereas private operators have to pay Belgian VAT for their ICT services and, as 
exempt taxpayers, cannot reclaim it. 
The respondents are of the view that the emanation theory should be applied to all 
members of Digipolis. They argue that all participants have waived their 
regulatory and management rights (conferral of management). They maintain that, 
as a result, the fees and contributions charged by Digipolis should not be regarded 
as consideration for a taxable transaction but rather as a financial contribution to 
the management costs of Digipolis and are therefore not subject to VAT. They 
argue that the VAT status of the participants is thus irrelevant, since internal 
transactions do not fall within the scope of VAT, regardless of whether the 
participant qualifies as a public body under Article 6 of the VAT Code or as an 
ordinary taxable person under Article 4 of the VAT Code. They also refer to the 
reply of the Minister for Finance dated 25 May 2018 to Parliamentary Question 
No 2188 of 19 April 2018: 
‘Commissioning associations are indeed treated in the same way as 
intermunicipal companies in terms of VAT, with member municipalities 
having relinquished their regulatory and management rights. These 
provisions are explained in Orders No 148 of 5 October 1971 and No 6 of 
27 February 1975. Where participants have waived their regulatory and 
management rights, the “emanation theory” applies. 
The emanation theory involves ignoring the fact that the activity is carried 
out by the commissioning association. From a VAT perspective, the activity 
REQUEST FOR A PRELIMINARY RULING OF 11. 10. 2024 – CASE T-575/24 
 
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is deemed to be carried out by the participants in the commissioning 
association themselves. [Or. 11] 
This means that the activities (with conferral of management) performed by 
the commissioning association in relation to third parties are not subject to 
VAT where those activities, if performed by the participants themselves, 
would also not be subject to VAT. 
Where the commissioning association performs activities for third parties 
that would fall outside the scope of VAT or would be exempt from VAT if 
performed by the participants themselves, those activities are also not 
subject to VAT or exempt from VAT in respect of the commissioning 
association. 
By contrast, the activities carried out by the commissioning association for 
third parties are subject to VAT if they would also be subject to VAT if 
carried out by the participants themselves. The VAT status of the participant 
is therefore relevant here, since it has to be considered whether or not the 
participant itself would have to charge VAT when applying Article 4, 
Article 6 and/or Article 44 of the VAT Code. 
The fact that, under the emanation theory, the fact is ignored that the 
activity is carried out by the association and for VAT purposes the activity is 
deemed to be carried out by the participants themselves also has 
implications for the services performed by the commissioning association 
for the participants. Services performed by a commissioning association for 
its participants are deemed to be services to itself. 
For the purposes of the conferral of management, the commissioning 
association is deemed to be acting “in place of” and not “on behalf of” its 
participants. Services as such do not in principle fall within the scope of 
VAT, which means that in the relationship between the commissioning 
association and its participants, there are in principle no services subject to 
VAT either. 
The VAT status of the participants is not relevant here, since internal 
operations do not fall within the scope of VAT, irrespective of whether the 
participant qualifies as a public body under Article 6 of the VAT Code or a 
normal VAT taxable person under Article 4 of the VAT Code.’ 
4 The dispute between the parties concerns whether the services provided by 
the commissioning association Digipolis to its members, other than 
cities/municipalities and OCMWs, are subject to VAT. There is a disagreement 
between the parties as to whether the services provided by Digipolis to its 
members, other than cities/municipalities and OCMWs, should be considered as 
services as such, as a result of which no VAT would be due on them (in case of 
conferral of management), or whether a distinction should be made in that respect 
[Or. 12] between members who are targeted by Article 6 of the VAT Code and 
DIGIPOLIS 
 
11 
members who are subject to Article 4 of the VAT Code, as a result of which the 
services are indeed subject to VAT with regard to members other than 
cities/municipalities and OCMWs. 
In view of the dispute between the parties, the Court of Appeal considers it 
necessary, before giving a judgment on the merits and subject to the rights of the 
parties, in application of Article 267 TFEU, to refer the questions for a 
preliminary ruling to the European Court of Justice, as set out in the operative 
part. In applying national law, the national court must, as far as possible, interpret 
it in the light of the wording and purpose of the VAT Directive in order to achieve 
the result sought by the directive and thus comply with the directive. 
In the meantime, the Court of Appeal is placing the case on the cause list. 
V. Decision 
The Court of Appeal makes its ruling after hearing the parties. 
[…] 
Before giving judgment, the following questions are referred to the Court of 
Justice of the European Union for a preliminary ruling in accordance with 
Article 267 TFEU: 
Are Articles 2, 9 and 13 of […] Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax and the principle of neutrality 
infringed if those provisions are interpreted as meaning that, by joining a 
commissioning association, participants who have made a conferral of 
management are not liable for VAT when they avail themselves of the services of 
the commissioning association since, in the context of the conferral of 
management, the latter is deemed to be acting in place of its members, with the 
result that services provided by the commissioning association to the participants 
are deemed to be services provided to itself and thus there is no participation in 
trade/taxable transactions? In the light of these provisions, should a distinction be 
made in this respect between participants in the commissioning association for the 
purpose of Article 13 of […] Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax and participants for the purpose of 
Articles 9 and 132 of […] Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax? 
[…] [Or. 13] 
[…] [Or. 14] 
[Closing formulas and signatures]