Judgment — ECLI:EU:C:2013:20
Date: 2013-01-17
Language of the case: Dutch
Court formation: Eighth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Eighth Chamber), 17 January 2013 1. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Restrictive interpretation — Limits (Council Directive 2006/112, Art. 135) 2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption of the supplies of land which has not been built on other than the supply of building land — Concept of ‘building land’ — Supply of land which has not been built on but intended to be built on — Included — Assessment by the national court (Council Directive 2006/112, Arts 12(1) and (3) and 135(1)(k)) 3. Harmonisation of fiscal legislation — Common system of value added tax — Taxable transactions — Criteria for assessment — Parties’ intention concerning the tax liability of a transaction — Obligation to carry out an overall assessment of the transaction concerned 1. See the text of the decision. (see para. 25) 2. The Member States, when defining what land is to be regarded as being ‘building land’, must have regard to the objective pursued by Article 135(1)(k) of Directive 2006/112 on the common system of value added tax (VAT), which seeks to exempt from VAT only supplies of land which has not been built on and is not intended to support a building. Thus, Article 135(1)(k) of Directive 2006/112, read in conjunction with Article 12(1) and (3) therein, must be interpreted as meaning that the exemption from VAT provided for in Article 135(1)(k) does not cover the supply of land which has not been built on following the demolition of the building situated on it, even where, at the time of that supply, improvement works on the land, apart from that demolition, had not been carried out, where it is apparent from an overall assessment of the factual circumstances surrounding that transaction and prevailing at the time of supply, including the intention of the parties when it is supported by objective evidence, that, at that time, the land at issue was in fact intended to be built on, a matter which is for the referring court to determine. (see paras 30, 36, operative part) 3. The declared intention of the parties concerning the VAT liability of a transaction must be taken into consideration in the course of an overall assessment of the circumstances of a transaction, provided that it is supported by objective evidence. In addition to the extent to which the transformation work carried out by the vendor had advanced at the time of supply, the completion before the time of supply, by the vendor, of demolition work for the purposes of a future construction, or the vendor’s understanding to carry out such demolition work with a view to future construction, can also form part of such evidence. (see paras 32, 33)