Provisional text
JUDGMENT OF THE GENERAL COURT (Chamber giving preliminary rulings)
25 February 2026 (*)
( Reference for a preliminary ruling – Taxation – Common system of VAT – Scope – Liability to tax – Body governed by public law – Articles 2, 9 and 13 of Directive 2006/112/EC – Intermunicipal cooperation – Conferral of management – Commissioning association – Provision of telematics services for the benefit of members of the association )
In Case T‑575/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), made by decision of 11 October 2024, received at the Court of Justice on 22 October 2024, in the proceedings
Belgische Staat/Federale Overheidsdienst Financiën
v
Digipolis Antwerpen AG,
District09 AG,
THE GENERAL COURT (Chamber giving preliminary rulings),
composed, at the time of the deliberations, of S. Papasavvas, President, N. Półtorak, M. Sampol Pucurull, G. Steinfatt (Rapporteur) and W. Valasidis, Judges,
Advocate General: J. Martín y Pérez de Nanclares,
Registrar: L. Ramette, Administrator,
having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 8 November 2024, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the area referred to in point (a) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure and further to the hearing on 5 September 2025,
after considering the observations submitted on behalf of:
–        the Belgian Government, by D. Carmen and F. Lambotte, acting as Agents,
–        Digipolis Antwerpen AG and District09 AG, by F. Soetaert, advocaat,
–        the European Commission, by M. Herold and W. Roels, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 22 October 2025,
gives the following
Judgment
1        The present request for a preliminary ruling concerns the interpretation of Articles 2, 9 and 13 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’) and of the principle of neutrality of value added tax (VAT).
2        The request has been made in proceedings between Belgische Staat/Federale Overheidsdienst Financiën (Belgian State/Federal Public Finance Service), and Digipolis Antwerpen AG and District09 AG, the successors in title to Digipolis, an association governed by public law, concerning services supplied by Digipolis to some of its members not being liable to VAT.
Legal framework
European Union law
3        Article 2 of the VAT Directive provides:
‘1.      The following transactions shall be subject to VAT:
(a)      the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;
…
(c)      the supply of services for consideration within the territory of a Member State by a taxable person acting as such;
…’
4        Article 9(1) of the VAT Directive states:
‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.
Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity” …’
5        Article 11 of the VAT Directive provides:
‘After consulting the advisory committee on value added tax …, each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.
…’
6        Article 13(1) of the VAT Directive is worded as follows:
‘States, regional and local government authorities and other bodies governed by public law shall not be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with those activities or transactions.
However, when they engage in such activities or transactions, they shall be regarded as taxable persons in respect of those activities or transactions where their treatment as non-taxable persons would lead to significant distortions of competition.
In any event, bodies governed by public law shall be regarded as taxable persons in respect of the activities listed in Annex I, provided that those activities are not carried out on such a small scale as to be negligible.’
7        Annex I to the VAT directive includes a list of activities referred to in the third subparagraph of Article 13(1) of that directive. Point 1 of that annex refers to ‘telecommunications services’.
Belgian law
The VAT Code
8        The request for a preliminary ruling contains references to the Wetboek van de belasting over de toegevoegde waarde (‘VAT Code’), but does not identify the version applicable to the facts of the dispute in the main proceedings or setting out the provisions referred to.
9        The order for reference nevertheless makes it possible to understand that Articles 4, 6 and 44 of the VAT Code are intended to transpose Articles 9, 13 and 132 of the VAT Directive respectively. Accordingly, Article 4 of the VAT Code defines the concept of ‘taxable person’, Article 6 of that code governs the treatment of certain bodies regulated by public law as non-taxable persons and Article 44 of that code contains exemptions for certain activities in the public interest.
Decree on intermunicipal cooperation
10      Article 10 of the decreet houdende de Intergemeentelijke samenwerking (Decree on intermunicipal cooperation) of 6 July 2001 (Belgisch Staatsblad, 31 October 2001, p. 37836) provides:
‘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 authorities, public social [welfare] centres and their associations, in so far as they consist exclusively of public legal entities, and other cooperation structures established in accordance with the provisions of this decree, shall be entitled to participate.
…’
11      Article 12 of the Decree on intermunicipal cooperation states:
‘§ 1.      The municipalities shall 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:
…
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.’
The ‘emanation’ theory
12      It is apparent both from the request for a preliminary ruling and from the reply of the Belgian State/Federal Public Finance Service to a question put at the hearing that the ‘emanation’ theory is the basis for an ‘administrative tolerance’, that is to say, a tax practice which has its origins in aanschrijving nr. 148/1971 (Circular No 148/1971) of 5 October 1971 and aanschrijving nr. 6/1975 (Circular No 6/1975) of 27 February 1975.
13      As regards the scope of that practice, the referring court reproduced the answer by the minister van Financiën (Minister for Finance, Belgium) of 25 May 2018 to parliamentary question No 2188 of 19 April 2018, which states as follows:
‘Commissioning associations are indeed treated in the same way as intermunicipal associations in terms of VAT, with member municipalities having relinquished their regulatory and management rights. … Where participants have waived [those 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 is deemed to be carried out by the participants in the commissioning association themselves.
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 which 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 in respect of the commissioning association or are exempt from VAT.
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, it 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. A self-supply of services does 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.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14      In 2003, the Stad Gent (City of Ghent, Belgium), the Openbaar centrum voor maatschappelijk welzijn Gent (Public Social Welfare Centre, Ghent, Belgium), the Stad Antwerpen (City of Antwerp, Belgium) and the Openbaar centrum voor maatschappelijk welzijn Antwerpen (Public Social Welfare Centre, Antwerp, Belgium) (together ‘the founding members’) set up Digipolis, a legal person governed by public law, in the form of a commissioning association with legal personality and conferral of management.
15      Article 2 of the articles of association of Digipolis provided that Digipolis was subject to the provisions of the Decree on intermunicipal cooperation.
16      Article 4 of the articles of association of Digipolis stated that the purpose of that association was the management, operation, development and promotion of telematics and its applications. Digipolis was to continue to act as a strategic instrument for each of its members. To that end, it was to align its policy, strategy and functioning with those of its members. In that context, the members were to aim to identify opportunities for mutual synergies, carry out joint projects and organise joint telematics services which were more optimal from a business and functional point of view than if they had organised those services separately.
17      Article 7 of the articles of association of Digipolis, as originally drafted, provided that Digipolis’ founding participants were the cities of Ghent and Antwerp and their public social welfare centres.
18      Following an amendment to Article 7 in 2010, external autonomous agencies of the founding members were able to join the association, which the Autonoom Gemeentebedrijf Stedelijk Onderwijs Antwerpen (Autonomous Municipal Education Authority of the City of Antwerp, Belgium), the Autonoom Gemeentebedrijf Kinderopvang Antwerpen (Autonomous Municipal Childcare Authority of the City of Antwerp, Belgium), the Autonoom Gemeentebedrijf voor Stadsontwikkeling Antwerpen (Autonomous Municipal Authority for Urban Development of the City of Antwerp, Belgium), the Zorgbedrijf Antwerpen (Public and Social Support Office of the City of Antwerp, Belgium) and the Aotonoom Gemeentebedrijf Stadsontwikkeling Gent (Autonomous Municipal Authority for Urban Development of the City of Ghent, Belgium) (together, ‘the non-founding members’) did.
19      Digipolis supplied telematics services and related supplies of computer equipment to its members and to third parties.
20      Following a tax inspection relating to the years 2014 to 2016, the Belgian State/Federal Public Finance Service took the view that the fees and contributions charged to the non-founding members, that is to say, to members other than those who were public bodies falling within the scope of Article 6 of the VAT Code, ought to have been subject to VAT. According to the Belgian State/Federal Public Finance Service, the non-founding members, in their capacity as autonomous external agencies, ought to be regarded as taxable persons within the meaning of Article 4 of the VAT Code.
21      A report and a supplementary report with adjusted amounts were drawn up on 15 December 2017 and 9 January 2018 respectively, by which the Belgian State/Federal Public Finance Service claimed the unpaid VAT due in respect of the years 2014 to 2016 from Digipolis, together with a fine and interest.
22      In view of the position adopted by the VAT authorities for the years 2014 to 2016, Digipolis paid VAT for the years 2017 to 2020 on the fees charged to the non-founding members and exercised the corresponding right of deduction. However, in the VAT returns for November and December 2020, Digipolis applied for a refund of the VAT paid. The Belgian State/Federal Public Finance Service rejected that application by decision of 24 February 2021.
23      Digipolis brought an action on 7 October 2020 (for the years 2014 to 2016) and another on 19 March 2021 (for the years 2017 to 2020) before the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division, Belgium) seeking, in essence, reimbursement of the sums paid in respect of those years.
24      In 2020, Digipolis transferred its business to AG Digipolis Antwerpen and AG District09. On 1 January 2021, Digipolis was dissolved and put into liquidation. The liquidation closed on 30 June 2021.
25      By judgment of 7 October 2022, the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) declared that the VAT claim for the years 2014 to 2016 was unfounded and ordered the Belgian State/Federal Public Finance Service to repay the amounts at issue, together with default interest. As regards the years 2017 to 2020, it held that the transactions carried out by Digipolis for the benefit of its members did not fall within the scope of VAT.
26      The rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) pointed out that the parties to the main proceedings did not dispute that Digipolis could be classified as a commissioning association and that the ‘emanation’ theory applied to the founding members which came within the scope of Article 6 of the VAT Code, such that the commissioning association was acting in place of those public bodies. It held that the Belgian State/Federal Public Finance Service had, accordingly, accepted that the founding members had waived their regulatory and management rights as regards the supply of telematics services and related applications. In addition, the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) indicated that it was clear from Article 10 of the Decree on intermunicipal cooperation that, in addition to municipalities and provinces, joint ventures such as autonomous municipal authorities could join a commissioning association. On that basis, that court held that, by joining Digipolis, all the members of that association had knowingly waived their regulatory and management rights as regards the supply of telematics services and related applications. Digipolis was therefore, according to that court, acting as an extension of its members and the transactions which it carried out were not taxable, with the result that there was no need to distinguish between those members according to whether or not they were subject to VAT.
27      The Belgian State/ Federal Public Finance Service brought an appeal against the judgment of 7 October 2022 before the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), which is the referring court.
28      According to the Hof van beroep te Antwerpen (Court of Appeal, Antwerp), it is common ground between the parties to the main proceedings that the ‘emanation’ theory applies to the founding members. Accordingly, in view of the fact that they waived their regulatory and management rights in matters relating to the provision of telematics services, Digipolis was acting in the place of the founding members and ought therefore to be regarded as an extension of them. The hof van beroep te Antwerpen (Court of Appeal, Antwerp) also notes that it is common ground between the parties to the main proceedings that the amounts paid by the founding members to Digipolis do not, on the same basis, constitute the price of a supply of services, but a financial contribution to management costs, with the result that they are not subject to VAT.
29      However, the dispute between the parties to the main proceedings concerns whether the services supplied by Digipolis to non-founding members must be regarded as self-supplies of services, resulting in no VAT being payable on them, or whether it is necessary, in that regard, to distinguish between the members of Digipolis who fall within the scope of Article 6 of the VAT Code and those who are taxable persons within the meaning of Article 4 of the VAT Code, such that the services supplied to non-founding members ought to be subject to VAT.
30      In those circumstances, the Hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Are Articles 2, 9 and 13 of [the VAT Directive] 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 [or] taxable transactions?
(2)      In the light of th[o]se provisions, should a distinction be made in this respect between [members of] the commissioning association for the purpose of Article 13 of [the VAT Directive] and [members] for the purpose of Articles 9 and 132 of [that directive]?’
Consideration of the questions referred
31      By its questions, which will be dealt with together, the referring court is, in essence, asking whether Articles 2, 9 and 13 of the VAT Directive and the principle of neutrality must be interpreted as precluding a legal person governed by public law organised as a commissioning association, whose activity consists of the supply of telematics services and the related supply of computer equipment to its members, in the context of a conferral of management, being regarded, taking account of Belgian tax practice under which those services are regarded as supplied to itself, as not subject to VAT in respect of the services which it supplies to its members and whether, in that regard, a distinction must be made between the members of that association on the basis of their VAT status.
32      In order to provide the referring court with a useful response, it is therefore necessary to analyse whether an association such as Digipolis must be regarded as a taxable person for the purposes of VAT and whether the application of the Belgian tax practice at issue is likely to have consequences for that classification.
33      The VAT Directive establishes a common system of VAT based, inter alia, on a uniform definition of taxable transactions (see, to that effect, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 49).
34      It is necessary, in order to ascertain whether the activities carried out by a commissioning association, such as Digipolis, for its members fall within the scope of the VAT Directive, to examine, first, whether those activities constitute a supply of goods or services for consideration, within the meaning of Article 2(1)(a) and (c) of that directive, and, second, whether they have been carried out independently in the context of an economic activity, within the meaning of Article 9(1) of that directive, with the result that that association has acted as a taxable person (see, to that effect, judgment of 30 March 2023, Gmina O., C‑612/21, EU:C:2023:279, paragraph 24). In addition, it is necessary, depending on the circumstances, to ascertain whether, by way of derogation from the general rule of taxation laid down in Article 9(1) of the VAT Directive, Article 13(1) of that directive precludes a commissioning association such as Digipolis from being a taxable person in respect of the transactions in question, since the application of the latter provision requires a prior finding that the activity in question is economic in nature (see, to that effect, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 66).
Whether there is a supply of goods or services for consideration
35      According to settled case-law, in order for such transactions to be ‘for consideration’ within the meaning of Article 2(1)(a) and (c) of the VAT Directive, there must be a direct link between the supply of goods or services, on the one hand, and the consideration actually received by the taxable person, on the other. Such a direct link is established where there is a legal relationship between the provider of the supply of goods or services, on the one hand, and the recipient, on the other, a legal relationship in which there is reciprocal performance, the remuneration received by the provider of the transactions constituting the actual consideration for the service supplied to that recipient (judgments of 30 March 2023, Gmina O., C‑612/21, EU:C:2023:279, paragraph 25, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 33). Furthermore, the criterion relating to the existence of a legal relationship in the context of which the transactions in question and the consideration for them take place must be interpreted by taking into account all of the circumstances of each individual case, such that the principle of fiscal neutrality is not disregarded, so that it must be given a broad meaning (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 31).
36      In order to be regarded as the value actually given in return for the service supplied, the remuneration must remain reasonable in relation to the service supplied in that it must not remunerate only part of the services supplied or to be supplied to the point of breaking the direct link between the services supplied and the consideration. That being said, the fact that the price paid for an economic transaction is higher or lower than the cost price and, therefore, a price higher or lower than the open market value, is irrelevant for the purpose of establishing whether it was a transaction effected ‘for consideration’. That circumstance is not such as to affect the direct link between the services supplied or to be supplied and the consideration received or to be received, the amount of which is determined in advance and according to well-established criteria (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 34 and the case-law cited).
37      The direct link between the supply of services and the consideration is broken when the remuneration is awarded in a voluntary and uncertain way so that its amount is practically impossible to determine or where its amount is difficult to quantify or the circumstances relating to its calculation are uncertain (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 36 and the case-law cited).
38      However, the fact that compensation is determined not on the basis of individualised services, but at a flat-rate, in advance and annually would not in itself be such as to affect the direct link between the supply of services made and the consideration received (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 38 and the case-law cited).
39      In the present case, it is apparent from the request for a preliminary ruling and from the observations submitted to the General Court that Digipolis received payments from its members as consideration for the supply of telematics services and related supplies of computer equipment, which enabled it to cover its costs. The legal relationship between Digipolis and its members was set out in its articles of association, which in turn had to comply with the Decree on intermunicipal cooperation.
40      As is apparent from the case-law cited in paragraphs 36 to 38 above, neither the fact that the payments made to a commissioning association such as Digipolis serve only to cover the operating costs of that association and do not enable it to make a profit, nor the fact that the members’ contributions are established in advance by reference to various allocation keys and on a flat-rate basis preclude the transactions carried out by that association for the benefit of its members from being regarded as carried out for consideration within the meaning of Article 2(1)(a) and (c) of the VAT Directive.
Whether a commissioning association such as Digipolis is liable to VAT
41      The VAT Directive attributes a very wide scope to VAT. Indeed, the terms used in Article 9(1) of the VAT Directive, in particular the term ‘any person who’, give to the notion of ‘taxable person’ a broad definition, focused on independence in the exercise of an economic activity, to the effect that all persons – natural or legal, both public and private, even entities devoid of legal personality – who, in an objective manner, satisfy the criteria set out in that provision must be regarded as being taxable persons for the purposes of VAT and to the effect that the concept of ‘economic activity’, is itself defined broadly as comprising all activities of producers, traders and persons supplying services and, in particular, the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. It is the existence of such an activity carried out independently which establishes the status as a taxable person (see, to that effect, judgment of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraphs 18 and 28 and the case-law cited).
Whether there has been a supply of goods or services in the context of an economic activity
42       ‘Economic activity’ within the meaning of Article 9(1) of the VAT Directive is an objective concept, in the sense that the activity is considered per se and without regard to its purpose and results (see judgments of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 34 and the case-law cited, and of 4 July 2024, Latvijas Informācijas un komunikācijas tehnoloģijas asociācija, C‑87/23, EU:C:2024:570, paragraph 42 and the case-law cited).
43      An activity is thus, in general, classified as economic where it is permanent and is carried out in return for remuneration which is received by the person carrying out the transaction, which implies that the remuneration itself must be regarded as having a continuing basis (see judgments of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 42 and the case-law cited, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 42 and the case-law cited).
–       The criterion of a continuing basis
44      The question whether an activity is designed to obtain income on a continuing basis is an issue of fact which must be assessed having regard to all the circumstances of the case (see judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 29 and the case-law cited).
45      The fact that an activity is carried out over a period of a number of years, determined in advance, does not preclude it from being regarded as having a continuing basis (see, to that effect, judgments of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraphs 30, 33 and 37, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 45 and the case-law cited).
46      In the present case, the fact that Digipolis was established for a period of 18 years, in accordance with its articles of association and the Decree on intermunicipal cooperation, in order to carry out telematics activities for which it received, throughout that period, payments from its members, demonstrates the continuing basis on which it carried out its activity for the purpose of the case-law cited in paragraph 43 above.
–       The criterion relating to the activity being carried out ‘for remuneration’
47      In order to determine whether a supply of services is supplied in return for remuneration, so that the activity in question is to be classified as an economic activity, all the circumstances in which it is supplied have to be examined (judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 29, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 43).
48      Comparing the circumstances in which the person concerned supplies the services in question with the circumstances in which that type of service is usually provided, that is to say, in the present case, by a private provider in the telematics sector, may therefore be one way of ascertaining whether the activity concerned is an economic activity (see, to that effect, judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 30, and of 30 March 2023, Gmina L., C‑616/21, EU:C:2023:280, paragraph 43).
49      In that context, it may be relevant to take into account whether, in the exercise of the activity in question, the person whose liability to VAT is under examination is active in the market concerned (see, to that effect, judgment of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 35).
50      Other factors, such as, inter alia, the number of customers and the amount of earnings, in particular whether they make it possible to cover the operating costs of the operator, may be taken into account along with others when that question is under consideration (judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 31, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 44).
51      In the present case, first, it is apparent from the objective nature of the concept of ‘economic activity’ that the activity is considered ‘per se’, and without regard to its purpose and results (see paragraph 42 above). It follows that both the fact that the services at issue in the main proceedings were supplied in the context of the conferral of management of Digipolis’ members’ telematics and the fact that Digipolis was supposed to carry out that activity in place of its members, so that they could achieve economies of scale and in order to optimise telematics activities from a staff and functional point of view, are irrelevant.
52      There is nothing to prevent private operators on the market from carrying out activities in the telematics sector.
53      Second, while Digipolis’ activities in the telematics sector were focused primarily on its members and while the nature of persons who may be members of a commissioning association is strictly limited by the Decree on intermunicipal cooperation, it appears that Digipolis also provided its services, on an ad hoc basis, to other customers. Indeed, the referring court stated that Digipolis also provided services to third parties.
54      Third, while the financial contributions determined annually, in advance and paid by Digipolis’ members to Digipolis were not supposed to enable it to make a profit, they were however supposed to cover its costs (see paragraph 39 above).
55      The contributions paid to Digipolis cannot therefore be treated in the same way as fees in an amount corresponding to only a small part of the costs incurred, which precludes the activity at issue in the main proceedings from being regarded as an activity carried out ‘for remuneration’ (see, to that effect, judgments of 29 October 2009, Commission v Finland, C‑246/08, EU:C:2009:671, paragraphs 37, 38, 50 and 51), and of 30 March 2023, Gmina L., C‑616/21, EU:C:2023:280, paragraph 46 and the case-law cited).
56      Fourth, as regards the fact, relied on by the defendants in the main proceedings, that Digipolis did not actively canvass the market in order to provide its services to third parties and did not advertise, it has been held that it cannot be inferred from the case-law that the fact of taking active steps to market property is a necessary condition for an activity relating to property asset management to be regarded as being carried out for the purpose of obtaining income therefrom on a continuing basis and therefore to be classified as ‘economic’ (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraphs 74 and the case-law cited). Such case-law may be transposed, mutatis mutandis, to the telematics sector.
57      Consequently, while the conditions under which Digipolis carried out its activity consisting of supplying telematics services and the related supply of computer equipment are not identical in all respects to the conditions under which such an activity is carried out by a private operator, they appear to be sufficiently similar for that activity to be classified as an activity carried out for remuneration.
Whether an economic activity is carried out independently
58      As the Advocate General observed in point 54 of his Opinion, the independence criterion must, like the concept of ‘taxable person’, be interpreted broadly.
59      The same criteria for assessing the condition of independence in the exercise of economic activities, laid down in Article 9(1) of the VAT Directive, may apply to public and private persons (judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 35).
60      In order to establish whether a commissioning association such as Digipolis independently carries out economic activities, it is necessary to ascertain whether, in the pursuit of its activities, it is in an employer-employee relationship vis-à-vis its members (see, to that effect, judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 33).
61      In that regard, in order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his or her activities in his or her own name, on his or her own behalf and under his or her own responsibility and whether he or she bears the economic risk associated with carrying out his or her activities (judgments of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 34, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 52).
62      In order to find that activities carried out by operators not integrated into the public administration are independent, the case-law has taken into account the complete absence of any employer-employee relationship between such operators and public authorities, as well as the fact that such operators acted on their own account and under their own responsibility, were free to arrange how they performed their work and themselves received the emoluments which made up their income (see judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 34 and the case-law cited). It is also apparent from the case-law that convergent economic interests between an association and the persons which make up that entity are not sufficient to support a finding that that association does not exercise its activities ‘independently’ (judgment of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 32).
63      It also follows from the case-law that the fact that the person concerned is not acting in his or her own name and on his or her own behalf (see, to that effect, judgment of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraphs 74 to 77), or that it does not assume the responsibility and economic risk entailed by the transaction in question (judgments of 18 October 2007, van der Steen, C‑355/06, EU:C:2007:615, paragraphs 23 to 26, and of 13 June 2019, IO (VAT – Activities of a member of a supervisory board), C‑420/18, EU:C:2019:490, paragraphs 42 and 43), makes it possible to rule out such a transaction having been carried out independently.
64      Admittedly, it is settled case-law that, in view of the purpose of the VAT Directive, which is intended to determine the basis of assessment for VAT in a uniform manner and in accordance with EU rules, the status of taxable person must be interpreted in a uniform manner in all the Member States and assessed exclusively on the basis of the criteria set out in Article 9(1) of the VAT Directive (see judgment of 3 April 2025,
Grzera, C‑213/24, EU:C:2025:238, paragraph 31 and the case-law cited).
65      However, taking provisions of national law into account may be useful in determining whether, in circumstances such as those in the main proceedings, the criteria for considering that an economic activity has been carried out independently are satisfied (judgment of 3 April 2025,
Grzera, C‑213/24, EU:C:2025:238, paragraph 32). While it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret national law, to determine whether the activity in question was carried out independently, the General Court, which is called upon to provide answers of use to the national court, may provide guidance, based on the file in the main proceedings and on the observations submitted to it, which may enable the national court to give judgment in the specific case before it (see, to that effect, judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 32, and of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraph 33).
66      In the present case, even if Digipolis carried on its activities by virtue of a transfer of powers authorised by its members, who held the entirety of its share capital, and if its management bodies were made up of representatives of its members, which, in fact, limited its autonomy, it was a legal person governed by public law which was independent of its members, and had its own articles of association, registered office, bodies, capital, assets, budget and employees. Accordingly, it would seem to be clear from those circumstances that it was not an internal structure of its members and that it was not integrated into them, but that it had sufficient organisational freedom in terms of human and material resources when it carried out its activities.
67      It was also Digipolis, and not its members, which took part in the procedure before the tax authorities and brought legal proceedings in order to protect its rights (see paragraphs 20 to 24 above).
68      It is therefore for the referring court to ascertain whether Digipolis acted in its own name and on its own behalf, as appears to be apparent from the factors referred to in paragraphs 66 and 67 above.
69      Moreover, having regard to its legal personality, assets and share capital, it appears that Digipolis carried out its activities under its own responsibility and that it bore the economic risk associated with carrying out those activities, which, however, it is also for the referring court to ascertain.
70      In those circumstances, it appears that Digipolis carried out its activities independently, such that it satisfied the conditions to be classified as a taxable person.
The absence of liability to tax arising from transactions being engaged by a body governed by public law as a public authority
71      Under the first and second paragraphs of Article 13(1) of the VAT Directive, States, regional and local government authorities and other bodies governed by public law are not to be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities, unless treatment as non-taxable persons would lead to significant distortions of competition.
72      As a derogation from the general rule that any activity of an economic nature is subject to VAT, that provision must be interpreted strictly (judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 77).
73      According to settled case-law, it follows from the very wording of that provision that, in order for the rule of treatment as a non-taxable person to apply, two cumulative conditions must be satisfied: the activities in question must be carried out by a body governed by public law and that body must act as a public authority (judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 78).
74      In the first place, as regards the first of the conditions referred to in paragraph 73 above, it is apparent from Article 10 of the Decree on intermunicipal cooperation that two or more municipalities may establish a joint venture with legal personality to achieve objectives belonging to one or more substantively related policy areas. Also, it is apparent from the request for a preliminary ruling and from the extract from Digipolis’ registration in the Belgisch Staatsblad
that Digipolis was a legal person governed by public law in the form of a commissioning association. Accordingly, a body such as Digipolis appears to meet the definition of a body governed by public law, as provided for in the first subparagraph of Article 13(1) of the VAT Directive, which it is for the referring court to ascertain.
75      Furthermore, it has already been held that a commissioning association under Belgian law, such as Digipolis, appeared to fall within the definition of a body governed by public law within the meaning of Article 13(1) of the VAT Directive (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraphs 18 and 50).
76      However, it must be ensured that the second condition laid down in the first subparagraph of Article 13(1) of the VAT Directive is satisfied. Only activities engaged in by a body governed by public law acting as a public authority are exempt from VAT.
77      As regards the second condition referred to in paragraph 76 above, it is the manner in which the activities at issue are carried out that determines the scope of the treatment of bodies governed by public law as non-taxable persons. Thus, activities carried out as public authorities for the purposes of the first subparagraph of Article 13(1) of the VAT Directive are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private traders (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 78 and the case-law cited).
78      It has also been held that the subject matter or purpose of the activity is in that regard irrelevant and that the fact that the pursuit of the activity in question involves the use of powers conferred by public law shows that that activity is subject to a public law regime (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 79 and the case-law cited).
79      In the present case, there is nothing in the file to suggest that, in the context of the activity in question vis-à-vis its members, Digipolis made use of the powers of a public authority. On the contrary, Digipolis appears to have performed its activities under the same conditions as private economic operators, which it is for the referring court to ascertain.
80      In the second place, since private operators may supply telematics services, to make commissioning associations which provide such services, such as the association in the main proceedings, not liable to tax could lead to significant distortions of competition, which it is for the referring court to ascertain. Those associations would then have to be regarded as taxable persons, pursuant to the second subparagraph of Article 13(1) of the VAT Directive.
81      In the third place, as the Advocate General correctly maintains in point 68 of his Opinion, in accordance with the third subparagraph of Article 13(1) of the VAT Directive, bodies governed by public law are regarded as taxable persons when they carry out, to a non-negligible extent, activities listed in Annex I to that directive. Those activities include telecommunications services. It is common ground that telematics combines information technology with telecommunications. In their observations submitted to the General Court, Digipolis’ successors in title also assert that ‘telematics’ refers to telecommunications and information technology activities. In the present case, given that those services were provided over a prolonged period to Digipolis’ members or to third parties, and that they constituted Digipolis’ main activity, they cannot be regarded as negligible.
82      Accordingly, the first subparagraph of Article 13(1) of the VAT Directive does not appear to be applicable to the activities carried out by Digipolis vis-à-vis its members.
83      Furthermore, it must be stated that the question referred for a preliminary ruling mentions Article 13 of the VAT Directive as a whole, which also includes paragraph 2 under which Member States may regard the activities of bodies governed by public law as activities in which those bodies engage as public authorities where those bodies are exempt under certain provisions of that directive, which it lists. However, it may follow from the second and third subparagraphs of Article 13(1) that a commissioning association such as Digipolis must be regarded as a taxable person irrespective of the fact that its activities may be classified as activities engaged in as a public authority as provided for in the first subparagraph of Article 13(1) of that directive (see paragraphs 80 and 81 above).
Whether the status of the members of the commissioning association, such as Digipolis, has any influence in relation to VAT
84      First, as Digipolis correctly maintains, in accordance with Article 2(1) of the VAT Directive, only the supply of goods and services within the territory of a Member State ‘by’ a taxable person acting as such is subject to VAT. It is the status and activity of the person performing the transactions in question, and not the status of the recipients of those supplies or services, which are decisive in order to determine whether those transactions are subject to VAT, as the Advocate General observed in points 75 and 76 of his Opinion.
85      Second, it is apparent from the case-law cited in paragraph 77 above that it is the manner in which the activities at issue are carried out which determine the scope of the treatment of bodies governed by public law as non-taxable persons.
86      In the present case, it is therefore necessary to assess whether Digipolis satisfies the second condition laid down in the first subparagraph of Article 13(1) of the VAT Directive in the light of the supply of telematics services and related supplies of computer equipment.
87      First, as stated in paragraph 79 above and subject to the assessment to be carried out by the referring court, there is nothing to suggest that activities consisting, for a body governed by public law, in providing telematics services and supplying computer equipment involved the use of powers of a public authority. Second, not only could the fact of Digipolis not being liable to VAT lead to significant distortions of competition, but those activities in themselves appear to preclude the body governed by public law which carries them out from being not liable to tax (see paragraphs 80 and 81 above).
Interpretation of the principle of neutrality of VAT
88      The principle of fiscal neutrality was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment. It precludes in particular treating economic operators carrying out the same transactions differently for VAT purposes (judgment of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 88).
89      In the light of the foregoing analysis, it is not necessary to answer the question regarding Digipolis’ liability to VAT from the point of view of the principle of neutrality of VAT.
The possible consequences of the ‘emanation’ theory for the liability to tax of a commissioning association such as Digipolis
90      As the Advocate General observed, in essence, in points 57 to 61 of his Opinion, the effect of the ‘emanation’ theory in Belgian law, in so far as it introduces a legal fiction under which a supply of services by a commissioning association to its members is regarded as a self-supply of services to itself by those members and is therefore not subject to VAT, is to establish a situation which falls outside the scope of tax and which is not laid down in the VAT Directive, in particular Articles 11 and 13 thereof.
91      In that regard, since it is apparent from the documents before the Court, which must be reviewed by the referring court, that Digipolis provides services for consideration and independently carries out an economic activity, it must, in principle, be regarded as a taxable person for the purposes of the VAT Directive. The application of the ‘emanation’ theory cannot call into question that status which arises from the VAT Directive or have the effect of exempting those services from taxation.
92      Taking account of the foregoing, the answer to the questions submitted for a preliminary ruling is that Articles 2, 9 and 13 of the VAT Directive must be interpreted as meaning that:
–        a legal person governed by public law organised as a commissioning association, whose activity consists in supplying telematics services and making related supplies of computer equipment to its members in the context of a conferral of management, must be regarded as liable to VAT, there being no need, in that regard, to distinguish between its members according to their status for VAT purposes, provided that those services are supplied for consideration and that that association carries out, independently, an economic activity;
–        a national tax practice leading to those supplies of services being analysed as self-supplies of services performed by the members of the commissioning association is not such as to call into question that association’s liability to VAT.
Costs
93      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the General Court, other than the costs of those parties, are not recoverable.
On those grounds,
THE GENERAL COURT (Chamber giving preliminary rulings)
hereby rules:
Articles 2, 9 and 13 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
must be interpreted as meaning that:
–        a legal person governed by public law organised as a commissioning association, whose activity consists in supplying telematics services and making related supplies of computer equipment to its members in the context of a conferral of management, must be regarded as liable to value added tax (VAT), there being no need, in that regard, to distinguish between its members according to their status for VAT purposes, provided that those services are supplied for consideration and that the association carries out, independently, an economic activity;
–        a national tax practice leading to those supplies of services being analysed as self-supplies of services performed by the members of the commissioning association is not such as to call into question that association’s liability to VAT.
Papasavvas
Półtorak
Sampol Pucurull
Steinfatt
Valasidis
Delivered in open court in Luxembourg on 25 February 2026.
[Signatures]
*      Language of the case: Dutch.