Opinion of the Advocate General — ECLI:EU:T:2026:263
Date: 2026-04-15
Language of the case: Dutch

Summary T-397/25 – 1 
Case T-397/25 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 June 2025 
Referring court: 
Hof van Cassatie (Belgium) 
Date of the decision to refer: 
23 May 2025 
Applicant: 
A&P Deco 
Defendant: 
Belgische Staat 
  
Subject matter of the main proceedings 
Tax dispute in which the claimant has appealed against the tax administration’s 
decision to adjust the VAT originally deducted on a building, since its activity 
changed from an operation subject to VAT (garden centre) to a letting exempt 
from VAT within the meaning of Article 44(3)(2) of the Wetboek van de belasting 
over de toegevoegde waarde (WBTW). Appeal in cassation against the judgment 
of the hof van beroep te Antwerpen (Court of Appeal, Antwerp) of 21 September 
2021, by which that court ruled in favour of the tax administration. 
Subject matter and legal basis of the request for a preliminary ruling 
The Hof van Cassatie (Court of Cassation, Belgium) requests the Court of Justice 
to interpret Articles 14, 19, 24 and 29 of Directive 2006/112/EC (VAT Directive), 
and Articles 184 to 190 thereof, as well as the neutrality principle laid down in 
Article 1(2) of that directive, in the context of the adjustment of the deduction of 
VAT by the transferor of a business which does not transfer the immovable 
property relating thereto but leases it to the transferee. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-397/25 
 
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Questions referred for a preliminary ruling 
Must Articles 14, 19, 24 and 29 and Articles 184 to 190 of the VAT Directive 
2006/112/EC, as well as the principle of neutrality laid down in Article 1(2) of the 
same directive, be interpreted as meaning that, where the possession of 
immovable property is made available by a commercial lease following the 
transfer of the business, no adjustment must be made to the transferor of the 
business, which is also the lessor of the immovable property, in respect of the 
deduction of the VAT charged on the acquisition, construction, renovation or 
improvement of the parts of the business premises leased to the transferee and 
further used by the transferee for the carrying on of the taxable activity taken 
over? 
Provisions of EU law cited 
1. Directive 2006/112/EC (VAT Directive): 
Article 1(2) (principle of neutrality of the VAT system) 
Article 14(1) (definition of supply of goods: transfer of the right to dispose of 
tangible property as owner) 
Article 19 (transfer of a totality of assets or part thereof – no supply if the 
transferee succeeds the transferor) 
Article 24(1) (definition of a service: any transaction which does not constitute a 
supply of goods) 
Article 29 (application of Article 19 to services) 
Articles 184 to 190 (rules on adjustment of VAT deduction) 
2. General principle of law: 
Primacy of EU law 
Provisions of national law cited 
1. Wet van 3 july 1969 tot invoering van het Wetboek van de belasting over de 
toegevoegde waarde (Law of 3 July 1969 introducing the Value Added Tax Code; 
‘WBTW’): 
Article 9 (definition of ‘goods’ for VAT purposes, including rights in rem) 
Article 10(1) (definition of ‘supply of goods’: transfer of the right to dispose as 
owner) 
A&P DECO 
 
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Article 11 (fiction of non-supply in the event of transfer of a totality of goods or a 
business department where the transferee could deduct VAT; the transferee is 
deemed to succeed the rights and obligations of the transferor) 
Article 18(1) (definition of ‘service’: any transaction which is not a supply of 
goods) 
2. Koninklijk besluit nr. 3 van 10 december 1969 betreffende de regeling inzake 
de aftrek van de belasting over de toegevoegde waarde (Royal Decree No 3 of 
10 December 1969 on the value added tax deduction scheme; ‘Royal Decree 
No 3’):  
Article 10 (change of use and adjustment of value added tax deductions) 
Brief summary of the facts and the procedure in the main proceedings 
1 A&P Deco NV, a VAT taxpayer which was operating a garden centre, transferred, 
on 23 January 2013, its business to WR Woestijnroos BV pursuant to Article 11 
WBTW, which does not regard the transfer of a totality of assets subject to 
conditions as a supply. On the same day, A&P Deco NV also leased the business 
premises to WR Woestijnroos BV by means of a commercial lease, so that it 
could continue to operate. 
2 During an inspection, the VAT administration adjusted the VAT originally 
deducted on the building, on the ground that there was a change of use: the 
activity of leasing the building is exempt from VAT (Article 44(3)(2) WBTW), 
with the result that there is no longer a right to deduct VAT. The adjustment 
resulted in four correction notices and four injunctions against A&P Deco NV. 
3 A&P Deco NV lodged an objection. 
4 The rechtbank van eerste aanleg Limburg (Court of First Instance, Limburg) 
declared the objection unfounded by decision of 13 February 2020. 
5 The hof van beroep Antwerpen (Court of Appeal, Antwerp) upheld that decision 
by judgment of 21 September 2021. 
6 A&P Deco NV lodged an appeal in cassation, arguing that the building was part 
of the transferred undertaking, given that its use was necessary for the 
continuation of the activity, and that the lease agreement was sufficient to transfer 
possession. In doing so, it relied, inter alia, on the Court of Justice’s autonomous 
interpretation of the concept of ‘transfer of a totality of assets’, referring to the 
judgments of 10 November 2011, Schriever, C-444/10, EU:C:2011:724, and of 
19 December 2018, Mailat, C-17/18, EU:C:2018:1038. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-397/25 
 
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Principal arguments of the parties in the main proceedings 
7 A&P Deco NV submits that the transfer of its business to WR Woestijnroos BV 
falls within Article 11 WBTW, which is based on Article 19 of the VAT 
Directive. Article 11 WBTW provides that the transferee is deemed to be 
continuing the economic activity of the transferor, so that there is no supply of 
goods or services within the meaning of the directive. 
8 Although the right of ownership of the building was not transferred, its possession 
was made available to the transferee by means of a commercial lease. According 
to A&P Deco NV, that is sufficient for the building to be regarded as belonging to 
the totality of assets transferred, in view of the Schriever and Mailat judgments of 
the Court of Justice. 
9 A&P Deco NV submits that, as long as it is used for the same activity subject to 
VAT, the building does not undergo any change of use. Consequently, any 
obligation to repay the deducted VAT lies with the transferee and not with the 
transferor. 
10 According to A&P Deco NV, the judgment of the hof van beroep infringes the 
primacy of EU law, the VAT Directive, the principle of neutrality and Article 149 
of the Belgian Constitution. 
11 According to the hof van beroep, the building was merely leased and not 
transferred, meaning that it was not part of the totality of assets transferred. The 
building remained the property of A&P Deco NV, which thereby carried on an 
exempted property letting activity. 
12 Since A&P Deco NV has retained the right of ownership of the building and only 
transferred the right to use it to the transferee through a commercial lease, the 
building remains in its assets as a business asset. 
13 By no longer using the building for a taxable activity but for an exempt letting, a 
change of use occurs in the hands of the transferor. According to Article 10 of 
Royal Decree No 3, in such a case the VAT originally deducted must be adjusted. 
14 The tax fiction of Article 11 WBTW, whereby the transferee continues the 
personality of the transferor, does not extend to property which has not been 
transferred, such as the building in this case. 
Brief summary of the basis for the reference 
In the present case, the building of which the transferor has remained the owner 
was leased to the transferee for use in the context of the continued operation of the 
business taken over. According to the hof van beroep, the change of use of the 
building must be assessed on the side of the transferor, since a right of lease grants 
a personal right of use to the lessee, so that the property remains an asset for the 
A&P DECO 
 
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lessor. The transferor no longer uses the property for its activity – and thus for the 
performance of taxable transactions – but for a letting activity which is exempt 
under Article 44(3)(2) WBTW. This leads to an adjustment of VAT. In contrast, 
the claimant submits that, in view of the fiction of Article 19 of the VAT 
Directive, under which the person to whom the goods are transferred is to be 
treated as the successor to the transferor, the obligation to repay on adjustment 
passes to the transferee as long as it continues the taxable activity. According to 
the referring court, the dispute thus raised can be resolved only by interpreting the 
scope of Article 19 of the VAT Directive.