Opinion of the Advocate General — ECLI:EU:C:2013:421
Date: 2013-06-20
Language of the case: Polish
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (Third Chamber), 28 November 2013 1. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Educational services provided for commercial purposes by bodies not governed by public law — Lawfulness — Exemption of all educational services, in general, without consideration of the aims pursued by the bodies not governed by public law providing those services — Unlawful (Council Directive 2006/112, Arts 132(1)(i), 133 and 134) 2. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Input supply of educational services not subject to tax as a result of an exemption provided by national law which infringes Article 132(1)(i) of that directive — Non-application of that exemption to a taxable person which does not constitute an educational body governed by public law — Recognition of the right to deduct (Council Directive 2006/112, Art. 168) 1. Point (i) of Article 132(1)(i), Article 133(1) and Article 134 of Directive 2006/112 on the common system of value added tax must be interpreted as not precluding educational services provided for commercial purposes by bodies not governed by public law from being exempt from that tax. However, point (i) of Article 132(1) of that directive precludes a general exemption of all supplies of educational services, without consideration of the objects pursued by non-public organisations providing those services. It follows that other organisations, namely, private organisations, must fulfil the condition of pursuing objects similar to those of bodies governed by public law. In that respect, in so far as point (i) of Article 132(1) of Directive 2006/112 does not specify the conditions or procedures for defining those similar objects, it is, in principle, for the national law of each Member State to lay down the rules in accordance with which that definition may be granted to such organisations. (see paras 33, 35, 37, 39, operative part 1) 2. A taxable person may not claim, in accordance with Article 168 of Directive 2006/112 on the common system of value added tax or the national provision transposing it, a right to deduct input value added tax where, as a result of an exemption provided for by national law in infringement of point (i) of Article 132(1) of that directive, the input supply of its educational services are not subject to that tax. That taxable person may, however, rely on the incompatibility of that exemption with point (i) of Article 132(1) of Directive 2006/112 so that that exemption is not applied to it where, even taking account of the discretion granted to Member States, that taxable person could not objectively be regarded as an organisation having objects similar to those of an educational body governed by public law, within the meaning of that provision, which is to be determined by the national court. In the latter case, the educational services supplied by that taxable person will be subject to value added tax and that person could then benefit from the right to deduct input value added tax. (see para. 56, operative part 2)