Opinion of the Advocate General — ECLI:EU:C:2013:254
Date: 2013-04-18
Language of the case: Dutch
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 18 July 2013 1. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Taxable person setting up a pension fund in the form of a legally and fiscally separate entity in order to safeguard the pension rights of his employees — Tax on services relating to the management and operation of funds — Right to deduction — Condition — Existence of a direct and immediate link (Council Directive 77/388, Art. 17) 2. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Management of special investment funds — Concept (Council Directive 77/388, Art. 13B(d)(6)) 1. Article 17 of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that a taxable person who has set up a pension fund in the form of a legally and fiscally separate entity in order to safeguard the pension rights of his employees and former employees is entitled to deduct the value added tax he has paid on services relating to the management and operation of that fund, provided that the existence of a direct and immediate link is apparent from all the circumstances of the transactions in question. In this respect, it must be ascertained whether, despite the fact that the fund set up by the taxable person is an entity that is legally separate from that person, the existence of such a link is apparent from all the circumstances of the transactions in question. Where the taxable person acquires those services for the purpose of the administration of his employees’ pensions and the management of the assets of the pension fund set up to safeguard those pensions, by virtue of a legal obligation imposed on him as an employer, and in so far as the costs of the services acquired by the taxable person in that connection form part of his general costs, which is for the referring court to verify, they are, as such, component parts of the price of the taxable person’s products. In those circumstances, it may be considered that the exclusive reason for the acquisition of the input services lies in the taxable person’s taxable activities, and that there is a direct and immediate link. That consideration is not called into question by the possibility of complying with the legal obligation of providing a pension scheme for the taxable person’s employees by other means than setting up a fund in the form of a legally and fiscally separate entity. (see paras 24-26, 28-29, operative part) 2. See the text of the decision. (see paras 30, 31)