62024TC0575
OPINION OF ADVOCATE GENERAL
MARTÍN y PÉREZ DE NANCLARES
delivered on 22 October 2025 (
1
)
Case T‑575/24
Belgische Staat / Federale Overheidsdienst Financiën
v
Digipolis Antwerpen AG,
District09 AG
(Request for a preliminary ruling from the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium))
(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(c) – Taxable transactions – Articles 9 to 13 – Concept of ‘taxable person’ – Intermunicipal cooperation – Provision of services by an association to its members for remuneration – Belgian administrative tolerance which allows the association and its members to be regarded as a single taxable person)
I. Introduction
1.
This request for a preliminary ruling, made by the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), requires the Court to interpret Directive 2006/112/EC, (
2
) in particular Article 9 thereof, which contains the definition of the concept of ‘taxable person’, based on the independent exercise of an economic activity.
2.
In the main proceedings, the Belgian tax authorities and the successors to a public legal entity, established as an association, are in dispute as to whether the services provided by the latter to some of its members must be subject to value added tax (VAT), in that those services were supplied independently by a taxable person or, on the contrary, whether they must be classified as internal transactions, which therefore fall outside the scope of Directive 2006/112.
3.
The dispute between the parties to the main proceedings arises from Belgian law and, more specifically, from an administrative tolerance based on a legal theory known as ‘the emanation theory’. That theory allows a ‘commissioning’ association to be regarded as acting as an extension of its members, with the result that its services to its members constitute internal self-supplies and are therefore non-taxable.
4.
The referring court has doubts as to whether that tolerance is compatible with Directive 2006/112.
II. Legal framework
A.
European Union law
5.
In accordance with Article 2(1)(c) of Directive 2006/112, ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such’ is subject to VAT.
6.
The first subparagraph of Article 9(1) of that directive provides:
‘“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.’
7.
The first paragraph of Article 11 of that directive provides:
‘… 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.’
8.
Article 13(1) of that directive is worded as follows:
‘… 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 …
However, … 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.’
9.
Article 132 of Directive 2006/112 lays down exemptions for certain activities in the public interest. Paragraph 1(f) thereof provides:
‘Member States shall exempt the following transactions:
…
(f)
the supply of services by independent groups of persons, who are carrying on an activity which is exempt from VAT or in relation to which they are not taxable persons, for the purpose of rendering their members the services directly necessary for the exercise of that activity …’
10.
Annex I to that directive sets out 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’.
B.
Belgian law
1. The Belgian VAT Code
11.
The request for a preliminary ruling contains references to the Belgian VAT Code, without identifying the applicable version and without reproducing the provisions referred to.
12.
The order for reference nevertheless makes it possible to understand that Articles 4, 6 and 44 of that code are intended to transpose Articles 9, 13 and 132 of Directive 2006/112 respectively. Accordingly, Article 4 of the Belgian 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.
2. The Decree on intermunicipal cooperation
13.
In the version applicable to the dispute in the main proceedings, the Decreet van Intergemeentelijke Samenwerking (Decree on intermunicipal cooperation) of 6 July 2001 (Belgisch Staatsblad, 31 October 2001, p. 37836) provided in Article 10 thereof:
‘Two or more municipalities may establish a joint venture with legal personality to achieve objectives belonging to one or more substantively related policy areas. …’
14.
Under Article 12(1) of that decree:
‘1.   The municipalities 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.’
15.
Paragraph 2 of that article provided that there are three forms of joint venture with legal personality, including the ‘commissioning association’, defined as ‘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’.
3. The emanation theory
16.
It is apparent from the request for a preliminary ruling that the emanation theory is the basis for an ‘administrative tolerance’ which has its origins in Orders No 148/1971 of 5 October 1971 and No 6/1975 of 27 February 1975 (‘Orders No 148/1971 and No 6/1975’).
17.
With regard to the scope of that theory, the referring court reproduced the reply of the minister van Financiën (Minister for Finance) of 25 May 2018 to parliamentary question No 2188 of 19 April 2018 (‘the ministerial reply to parliamentary question No 2188’), which states as follows:
‘Commissioning associations are indeed treated in the same way as intermunicipal companies in terms of VAT, with member municipalities having relinquished their regulatory and management rights. … Where participants have waived their regulatory and management 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.
…
[That] fact … 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 [Belgian] VAT Code or a normal VAT taxable person under Article 4 of the [Belgian] VAT Code.’
III. The facts giving rise to the dispute and the request for a preliminary ruling
18.
The dispute in the main proceedings is between the Belgische Staat/Federale Overheidsdienst Financiën (Belgian State/Federal Public Finance Service) (‘the tax authorities’) and Digipolis Antwerpen AG and AG District 09 (‘the successors to Digipolis’).
19.
In 2020, those companies took over the activities of a public legal entity established in 2003 in the form of a ‘commissioning’ association called ‘Digipolis’.
20.
The founding members of Digipolis included Belgian cities. In 2010, other public legal entities engaged in activities in the public interest, such as childcare and community development, joined that association (‘the non-founding members’).
21.
Digipolis provided information and communication technology services, including, in particular, telematics services, to its members and third parties.
22.
Following a tax audit carried out in 2017, the tax authorities found that the services provided to the non-founding members during the years 2014 to 2016 should have been subject to VAT. Consequently, they claimed from Digipolis the VAT that would have been due for those years.
23.
For the years 2017 to 2020, Digipolis paid VAT on the services provided to the non-founding members, while requesting a correction and refund of that tax. That request was rejected by the tax authorities.
24.
According to the first instance court, before which proceedings were brought by the successors to Digipolis, the tax authorities wrongly found that the services in question were subject to VAT.
25.
The tax authorities appealed against that judgment before the referring court, arguing that the services provided by Digipolis to the non-founding members were subject to VAT. The position would be different only if the emanation theory applied. However, only the members of Digipolis which are regarded as non-taxable public bodies for the purposes of Article 6 of the Belgian VAT Code could benefit from VAT exemption on the basis of that theory. The non-founding members regarded as ordinary taxable persons for the purposes of Article 4 of that code would be excluded from that benefit.
26.
The successors to Digipolis take the view, by contrast, that it follows from the ministerial reply to parliamentary question No 2188 that the emanation theory applies to services provided by a commissioning association to its non-founding members. Accordingly, those services are deemed to be self-supplies, carried out within a single taxable person and therefore do not fall within the scope of VAT.
27.
Taking the view that, in order to resolve that dispute, it is necessary to interpret Directive 2006/112 and the principle of fiscal neutrality, the hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and, under the procedure provided for in Article 267 TFEU, to refer for a preliminary ruling the following question, which comprises two parts:
‘Are Articles 2, 9 and 13 of […] Council Directive [2006/112] 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? In the light of these provisions, should a distinction be made in this respect between participants in the commissioning association for the purpose of Article 13 of [Directive 2006/112] and participants for the purpose of Articles 9 and 132 of [Directive 2006/112]?’
IV. The procedure before the Court of Justice and the General Court
28.
This request for a preliminary ruling was lodged at the Registry of the Court of Justice on 22 October 2024. Pursuant to Article 50b of the Statute of the Court of Justice of the European Union, the request was transferred to the General Court.
29.
The parties to the main proceedings and the European Commission submitted written observations and participated at the hearing held on 5 September 2025.
V. Legal assessment
30.
In the light of the particularly brief statement of grounds which, according to the referring court, justified its decision to refer the matter, the meaning and scope of the question referred cannot be determined clearly. I therefore consider it necessary, first, to identify the premisses on which that question is actually based (A), which will enable me, secondly, to carry out the legal analysis of that question (B), leaving to one side the points of law which, in the present case, do not require the Court’s interpretation.
A.
The scope of the question referred
31.
In the well-known procedural context of the preliminary ruling procedure, (
3
) it is for the General Court to provide the national court with an answer which will be of use to it and enable it to determine the case before it, by reformulating, where necessary, the questions referred to it. (
4
) Reformulation is often a delicate question and requires a careful examination of the request for a preliminary ruling. In that connection, it is necessary to extract from all the information provided by the national court the points of EU law which actually require interpretation, having regard to the subject matter of the dispute. (
5
)
32.
According to my reading of the request for a preliminary ruling, it is apparent that the referring court is uncertain, in essence, as to the compatibility of the emanation theory with EU law (1). However, contrary to what is stated in the written observations submitted to the Court, the referring court does not ask whether Digipolis fulfils the conditions for the application of Articles 2, 9 and 13 of Directive 2006/112 (2). An analysis of the subject matter of the main proceedings and the questions submitted by the referring court will enable me to draw conclusions as to the scope of the question referred (3).
1. The questions from the referring court
33.
In the present case, in order to justify the question referred for a preliminary ruling, the referring court simply refers to the ‘dispute between the parties’.
34.
In my view, the parties to the main proceedings disagree as to whether the emanation theory should be applied in order to determine whether the services in question, provided by Digipolis to its non-founding members, are subject to VAT.
35.
In that regard, it is apparent from the request for a preliminary ruling that the emanation theory was developed by the tax authorities in Orders No 148/1971 and No 6/1975 and that its purpose was set out in detail in the ministerial reply to parliamentary question No 2188.
36.
It is also apparent that that theory is the basis for an administrative tolerance, (
6
) which applies to the tax treatment of services provided by ‘commissioning associations’. These are public law entities entrusted by their members with providing certain services under a ‘conferral of management’, which means that those members waive their right to provide those services themselves. (
7
) In so far as those conditions are satisfied, the commissioning association and its members are deemed to form a single taxable person for the purposes of VAT liability.
37.
At the hearing, the Belgian State essentially confirmed that interpretation, while noting that the emanation theory consists of two aspects, one external and the other internal. The first aspect reflects the historical purpose of that theory, namely the outsourcing to a third party of powers legally conferred on municipalities. That entity then exercises those powers in the name and on behalf of the participating municipalities, for the benefit of citizens. In that situation, the commissioning association should be regarded as an extension of its members. The second aspect of that theory covers a situation which is ‘atypical’ by comparison with the historical purpose of the emanation theory, namely that of services provided by a commissioning association to its members, which are deemed to be self-supplies.
38.
It is that second aspect which is at issue in the main proceedings. In that regard, the parties to the main proceedings disagree as to whether, in the light of the scope of the emanation theory, its benefits are available exclusively to the municipalities which participate in a commissioning association, such as Digipolis, or whether those benefits may be extended to other members, which are typically public law entities operating in the municipal sphere, such as the non-founding members in the present case.
39.
At the hearing, the parties explained at length their disagreements on that subject. However, I consider that the question whether certain public law entities can benefit from the emanation theory requires an interpretation of the scope of that theory. This is a question of Belgian law, the resolution of which does not fall within the jurisdiction of the Court. According to its case-law, the Court is bound by the assessment of the referring court. (
8
)
40.
In my view, the referring court implicitly but necessarily starts from the premiss that the services in question are likely to fall within the scope of the emanation theory, irrespective of the status of the non-founding members. (
9
) Moreover, the information contained in the request for a preliminary ruling does not suggest that the application of that theory is limited to services to municipalities. On the contrary, the ministerial reply to parliamentary question No 2188, reproduced in that request, expressly refers to the application of that theory to all the members of a commissioning association, irrespective of whether they are taxable persons or non-taxable persons within the meaning of Articles 4 and 6 of the Belgian VAT Code.
41.
If the referring court is asking the Court to rule on the applicability of the emanation theory, it is exclusively in the light of EU law. In my view, it follows that, by its question, the referring court seeks to determine whether that theory is compatible with the requirements arising from Directive 2006/112 and the principle of fiscal neutrality.
2. The absence of a question on the liability of Digipolis for VAT
42.
As already indicated, contrary to what is stated in the written observations submitted to the Court, I consider that the referring court is not seeking to ascertain whether, in the present case, Digipolis fulfils the conditions for the application of Articles 2, 9 and 13 of Directive 2006/112, even though it expressly referred to those provisions in the question referred. It seems to me that the request for a preliminary ruling is based on two premisses. First, pursuant to Article 9 of Directive 2006/112, Digipolis must be regarded as a taxable person, on the ground that it independently carries out an economic activity, namely the provision of telematics services to its members and third parties. Secondly, since those services are provided for remuneration, they fall within the scope of that directive, as defined in Article 2(1)(c) thereof. They are therefore subject to VAT, unless the emanation theory allows the opposite result to be achieved. (
10
)
43.
For the purposes of the present reference for a preliminary ruling, it must therefore be considered that, under Articles 2 and 9 of Directive 2006/112, the services in question are, in principle, subject to VAT.
44.
Several grounds may be relied on in support of that interpretation of the order for reference.
45.
On the one hand, I consider that the referring court notes that the emanation theory establishes a legal fiction through the use of the term ‘deemed’ (in Flemish: ‘geacht’) to describe the effects of that theory. This therefore leads to a situation in which the services in question, provided by Digipolis, ‘are deemed to be services provided to itself’, by way of derogation, in particular, from the criterion of independence laid down in Article 9 of Directive 2006/112.
46.
On the other hand, it seems unlikely to me that the purpose of the request for a preliminary ruling could be to determine the applicability of Article 9 of Directive 2006/112 to the present case. First of all, I tend to the view that the account of the facts set out in the request for a preliminary ruling is not such as to enable the Court to provide further clarification in that regard. Next, when requested to give a preliminary ruling, the Court does not have jurisdiction to apply the rules of law to a specific situation. (
11
) Finally, in my view, the relevant case-law contains useful elements for the practical application of Article 9 of Directive 2006/112 in the present case, such as guidance on assessing the relationship between an association and its members in the light of the criterion of independence laid down in that article. (
12
)
3. Conclusions on the scope of the question referred
47.
All of the foregoing considerations lead me to conclude that, by the first part of the question referred, the referring court seeks to ascertain whether Directive 2006/112 and the principle of fiscal neutrality must be interpreted as precluding the application of national legislation or of a national administrative practice under which services provided by an association to its members, for remuneration, are deemed to be internal transactions, with the result that they fall outside the scope of that directive, although that association, acting independently, must be regarded as a taxable person within the meaning of Article 9 of that directive.
48.
I consider that it is in that context that it is necessary to address the second part of the question referred, which seeks to ascertain whether the Court’s answer might vary if the non-founding members of Digipolis – as recipients of the services in question – are regarded not as taxable persons within the meaning of Article 9 of Directive 2006/112, but as non-taxable public bodies for the purposes of Article 13 of that directive.
B.
Analysis of the question referred
49.
As I have just explained, the referring court appears to consider that the emanation theory, in so far as it allows for a derogation from the criterion of independence laid down in Article 9 of Directive 2006/112, could be contrary to that directive. It is therefore for the Court to examine whether that directive, and in particular Article 9 thereof, leaves Member States with a margin of discretion which allows the tax authorities to preclude the applicability of that directive under the conditions set out by the emanation theory.
50.
It is to that end that I shall analyse, in turn, the requirements arising from Article 9 of Directive 2006/112 (1) and from Articles 11 and 13 of that directive (2), with a view to determining the compatibility of the emanation theory with those provisions. Finally, I shall address the referring court’s questions concerning the possible effect which the status of the recipients of the services could have on the compatibility of that theory with EU law (3).
1. The compatibility of the emanation theory with Article 9 of Directive 2006/112
51.
It is clear from settled case-law that Directive 2006/112 attributes, through the concept of ‘taxable person’, a very wide scope to VAT. (
13
) That concept is the subject matter of the provisions of Title III of that directive, namely Articles 9 to 13.
52.
In that regard, it seems useful to recall that, in order to ensure the uniform application of that directive, the concept of ‘taxable person’ must be interpreted autonomously, regardless of the purpose and results of the transactions concerned. (
14
) I consider, in particular, that it is exclusively on the basis of the criteria laid down in Article 9 of Directive 2006/112, which must be interpreted in the light of the other provisions of Title III thereof, that a person’s status as a taxable person must be assessed. It follows that all persons – natural or legal, both public and private, even entities devoid of legal personality – which, in an objective manner, satisfy the criteria set out in Article 9(1) of that directive are regarded as being taxable persons for the purposes of VAT. (
15
)
53.
As set out in Article 9(1) of that directive, ‘“taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity’. The terms used in that provision, in particular the term ‘any person who’, give the notion of ‘taxable person’ a broad definition focused on independence in the pursuit of an economic activity. (
16
)
54.
As Advocate General Cosmas has already pointed out with regard to Article 4(4) of the Sixth VAT Directive, it follows from a systematic analysis of Title III of Directive 2006/112 that the term ‘independently’ must also be interpreted broadly. That assessment is supported by Articles 10 and 11, which come under Title III and contain negative definitions of that word. (
17
) Article 10 provides examples of working relationships in which there is typically a relationship of employer and employee, excluding the independent exercise of an economic activity. (
18
) Article 11 allows any persons who, while legally independent, are closely bound to one another by financial, economic and organisational links to be regarded as a single taxable person. (
19
)
55.
It is in that regulatory context that the Court of Justice has developed criteria for assessing whether, in addition to the situation referred to in Article 11 of Directive 2006/112, legally separate persons may be regarded as not being independent. (
20
)
56.
Thus, in order to establish whether a person independently carries out an economic activity, for the purposes of Article 9 of Directive 2006/112, it is necessary to ascertain whether there is an employer-employee relationship in the pursuit of that activity. This is ascertained on the basis of a typological description, involving an examination of all the conditions under which the activity is carried out, on a case-by-case basis. In that context, 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 those activities. (
21
) With regard in particular to the independence of legal entities from the persons comprising them or from their members, it seems appropriate to me to point out that the Court of Justice has found that convergent economic interests are not sufficient to support a finding that such an entity does not exercise its activities ‘independently’. (
22
)
57.
I consider that the emanation theory, as presented by the referring court, disregards the criterion of independence laid down in Article 9 of Directive 2006/112. It establishes a legal fiction which allows a service provider and a service recipient to be considered to constitute a single taxable person, whereas, in the light of Article 9 of Directive 2006/112, the former provides those services independently of the latter.
58.
That assessment of the emanation theory is supported both by the legal framework on which it is based, namely Orders No 148/1971 and No 6/1975, and by the description of it in the ministerial reply to parliamentary question No 2188. Unless I am mistaken, those texts make no reference to the criterion of independence referred to in Article 9 of Directive 2006/112.
59.
Moreover, to my knowledge, nor does the Decree on intermunicipal cooperation address the criterion of independence. that decree defines concepts central to the emanation theory, namely those of ‘conferral of management’ and ‘commissioning association’, without, however, requiring the existence of an employer-employee relationship, for the purposes of the case-law cited in point 56 of this Opinion, between the persons or entities which make such a conferral and the association with conferral of management.
60.
I therefore concur with the Commission, which, during the hearing, rightly pointed out that the emanation theory is a purely Belgian concept which finds no support in Directive 2006/112.
61.
I conclude that the emanation theory is, in principle, contrary to Article 9 of Directive 2006/112, to its binding nature and to the objective of harmonisation pursued by that directive, inter alia on the basis of the definition of the concept of ‘taxable person’. In particular, national legislation or a national practice, implementing the emanation theory, cannot limit the scope of Directive 2006/112 by derogating from the criteria laid down in Article 9(1) thereof. (
23
)
62.
That theory might nonetheless be compatible with Article 9 of Directive 2006/112 if it constituted the implementation of one of the derogations from that provision provided for in Articles 11 and 13 of Directive 2006/112.
2. The compatibility of the emanation theory with Articles 11 and 13 of Directive 2006/112
63.
As regards, in the first place, Article 11 of Directive 2006/112, I would recall that it lays down the conditions under which several persons, ‘while legally independent’, may be regarded as forming part of a group that is treated as a single taxable person. The members of such a ‘VAT group’ cannot be regarded as independent taxable persons, with the result that services provided for consideration between them are not subject to VAT. (
24
)
64.
As the Commission stated at the hearing, there is nothing in the file before the Court to suggest that Digipolis and its members form a group for the purposes of Article 11 of Directive 2006/112. (
25
) In my view, the application of that provision was never contemplated in the present case, as evidenced, moreover, by the response of the successors to Digipolis to a question that I asked at the hearing. They maintained, in essence, that there was no need to raise the question of the applicability of that article, on the ground that the emanation theory already allowed the services in question to be classified as internal services not subject to VAT.
65.
Furthermore, I tend to the view that the omission of any reference to Article 11 of Directive 2006/112, in particular in the request for a preliminary ruling, could arise from the inapplicability of that provision. In particular, I do not have the impression that the members of Digipolis or Digipolis itself have ceased to submit VAT declarations separately and ceased to be identified, within and outside their group, as individual taxable persons, as required by the case-law relating to Article 11. (
26
)
66.
In the second place, as regards Article 13 of Directive 2006/112, service providers falling within the scope of the first subparagraph of paragraph 1 thereof are not to be regarded as taxable persons, even though they ‘independently’ carry out an economic activity. (
27
)
67.
During the hearing, it was established that, in the present case, there is no question of applying that provision. Its application is subject to two conditions, that is to say, first, the activities in question must be carried out by a body governed by public law and, second, that body must act as a public authority. (
28
) It is true that, according to the information contained in the order for reference, it seems to have been established that Digipolis is such a body. However, the parties to the main proceedings make no claim that the provision of telematics services to the members of that association falls within the powers of a public authority. To the contrary, the Belgian State has confirmed that such services do not constitute powers which Belgian law reserves to municipalities. (
29
)
68.
I consider that the application of Article 13(1) of Directive 2006/112 is also excluded on a different ground. In accordance with that provision, 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. These include telecommunications, which, in my understanding, form an integral part of the telematics services in question in this case. (
30
) Moreover, in the present case, those services were provided over a prolonged period of time and also to third parties. It appears to me that those circumstances indicate that, in all likelihood, Digipolis’ activity was not of a minimal scale and thus entailed a risk of significant distortions of competition. (
31
)
69.
Beyond the present case, I consider that the emanation theory has no connection with Articles 11 and 13 of Directive 2006/112. In particular, it concerns neither the designation of VAT groups nor the classification of bodies governed by public law as taxable persons, and its application is in no way subject to the conditions laid down in Articles 11 and 13 of Directive 2006/112.
70.
It seems to me that that assessment is supported by the fact that Orders No 148/1971 and No 6/1975, which form the legal basis for the emanation theory, make no reference whatsoever to the provisions of the ‘Second VAT Directive’, in force at the time, which corresponded, in essence, to what are now Articles 11 and 13 of Directive 2006/112. (
32
) Moreover, to my knowledge, it is only since 1992 that the Belgian VAT Code has included a provision on VAT groups. (
33
) That provision requires the adoption of national transposition measures, which are contained in a Royal Decree of 2007. (
34
)
71.
In my view, it follows from the foregoing considerations that the emanation theory does not comply with the requirements laid down, respectively, in Articles 11 and 13 of Directive 2006/112. Its application would therefore result in the creation of an additional derogation from Article 9 of that directive, which is not provided for therein. In my view, the introduction of such a derogation is contrary to the objective of harmonisation pursued by that directive.
3. The relevance of the status of the recipients of the services
72.
By the second part of the question referred, the referring court asks whether the emanation theory could be compatible with Directive 2006/112 if the non-founding members of Digipolis – which were the recipients of the services in question – were not taxable persons within the meaning of Article 9 of that directive, but non-taxable bodies governed by public law for the purposes of Article 13 thereof.
73.
I note that, at the hearing, the Belgian State sought to reframe that question by arguing that, in the light, inter alia, of their specific status within commissioning associations, only municipalities, which fall within Article 13 of Directive 2006/112, could benefit from the application of the emanation theory. Other members, such as municipal companies, are excluded.
74.
However, as already stated, (
35
) the referring court does not seem to me to share that assessment and, in any event, it does not ask the Court about the scope of the emanation theory. In my view, the second part of the question referred is based on the idea that the status of the recipient of services as a taxable person or as a non-taxable person could affect the tax status of the provider of those services.
75.
In my view that idea must be rejected. It already conflicts with the wording of Article 9 of Directive 2006/112, which does not refer to the recipients of supplies of goods or services. The criteria set out in paragraph 1 of that provision focus on the pursuit of economic activities for the supply of goods or services. They therefore refer to suppliers and providers. (
36
)
76.
I consider that whether or not the recipient of the goods or services is a taxable person is irrelevant in that regard. In particular, whether or not a service provider carries on an economic activity cannot depend on whether the recipient uses those services for the purposes of its taxed transactions. (
37
) Similarly, as stated by the successors to Digipolis in their written observations and by the Commission at the hearing, under Article 2(1)(c) of Directive 2006/112, the taxable nature of a service depends exclusively on whether the supplier is a taxable person.
77.
In conclusion, neither the nature of the activities carried out by the recipient of a service nor whether it is a taxable or non-taxable person is relevant for the purpose of answering the question whether that service falls within the scope of Directive 2006/112.
78.
By contrast, those elements do make it possible to determine whether the VAT exemption provided for in Article 132(1)(f) of that directive applies. That provision lays down an exemption for ‘independent groups of persons’, provided, inter alia, that those persons themselves carry on an activity which is exempt from VAT or are not taxable persons. (
38
)
79.
In the main proceedings, that exemption was relied on, in the alternative, by the successors to Digipolis. At the hearing, they stated that some non-founding members of that association carry on activities which are exempt from VAT not under the various situations referred to in Article 132 of Directive 2006/112, but under Article 135 of that directive. It seems to me that that fact precludes the application of Article 132(1)(f) of that directive. Only services which contribute directly to the exercise of activities in the public interest referred to in that article come under the exemption provided for therein. (
39
)
80.
Moreover, in the light of the proposed interpretation of Article 9 of Directive 2006/112, I consider that it is no longer necessary to examine, in isolation, the principle of fiscal neutrality.
VI. Conclusion
81.
In the light of the foregoing considerations, I propose to respond to the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) as follows:
Article 9 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in the version applicable to the years at issue from 2014 to 2020, as most recently amended by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community,
must be interpreted as precluding the application of national legislation or of a national administrative practice under which services provided by an association to its members, for remuneration, are deemed to be internal transactions, with the result that they fall outside the scope of that directive, although that association, acting independently, must be regarded as a taxable person within the meaning of Article 9 of that directive and does not fall within the scope of Articles 11 or 13 thereof.
José Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 22 October 2025.
[Signatures]
(
1
)	Original language: French.
(
2
)	Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), in the version applicable to the years at issue, 2014 to 2020, as last amended by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21) (‘Directive 2006/112’).
(
3
)	Judgments of 13 June 2024, Adient (C‑533/22, EU:C:2024:501, paragraph 33), and of 12 May 2022, U. I. (Indirect customs representative) (C‑714/20, EU:C:2022:374, paragraph 33).
(
4
)	Judgment of 5 March 2020, X (Exemption of VAT for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 35).
(
5
)	See judgments of 20 March 1986, Tissier (35/85, EU:C:1986:143, paragraph 9), and of 5 December 2024, Modexel (C‑680/23, EU:C:2024:1000, paragraph 17 and the case-law cited).
(
6
)	The Court of Justice has already had occasion to assess Belgian administrative tolerance in the case which gave rise to the judgment of 24 February 2022, Pharmacie populaire – La Sauvegarde and Pharma Santé – Réseau Solidaris (C‑52/21 and C‑53/21, EU:C:2022:127). See also Grabias, F., La tolérance administrative, Dalloz, Paris, 2018, pp. 22 and 26, which defines administrative tolerance as ‘an unlawful choice made by the administration in favour of an unlawful act committed by a citizen’, having ‘the effect of setting aside the rule of law to which that citizen is normally subject’.
(
7
)	See Article 12(1) and (2) of the Decree on intermunicipal cooperation.
(
8
)	As regards the jurisdiction of the Court of Justice, see judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 40 and the case-law cited). As regards the jurisdiction of the referring court to interpret national law, see judgment of 28 October 2021, X-Beteiligungsgesellschaft (VAT – Successive payments) (C‑324/20, EU:C:2021:880, paragraph 31 and the case-law cited).
(
9
)	As explained in point 48 of this Opinion, the referring court, by contrast, raises the issue of whether the status of the non-founding members can have a bearing on the compatibility of the emanation theory with EU law, which is a different issue.
(
10
)	I would point out that the referring court does not address the question whether the services in question could benefit from a VAT exemption if they fell within the scope of Directive 2006/112. However, the exemption under Article 132(1)(f) of that directive was relied on, in the alternative, by the successors to Digipolis before that court (see below, point 79 of this Opinion).
(
11
)	See, by analogy, judgment of 18 June 2015, Martin Meat (C‑586/13, EU:C:2015:405, paragraph 31), and order of 12 February 2025, Pegazus Busz (C‑262/24, not published, EU:C:2025:107, paragraph 22).
(
12
)	See, in particular, judgment of 17 December 2020, WEG Tevesstraße (C‑449/19, EU:C:2020:1038, paragraph 32). See, in detail, point 56 of this Opinion.
(
13
)	See judgment of 3 April 2025, Grzera (C‑213/24, EU:C:2025:238, paragraph 18 and the case-law cited).
(
14
)	See judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 26 and the case-law cited).
(
15
)	See, by analogy, judgment of 21 October 2004, BBL (C‑8/03, EU:C:2004:650, paragraph 37 and the case-law cited), which concerns Article 4 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), and judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 28). See also Opinion of Advocate General Jääskinen in Gmina Wrocław (C‑276/14, EU:C:2015:431, point 34) and the analysis of the judgment in that case in Grube, F., ‘EuGH: Wirtschaftlich tätige „kommunale Einrichtungen“ mangels Selbständigkeit keine Unternehmer im umsatzsteuerrechtlichen Sinne – Gmina Wrocław’, Mehrwertsteuerrecht, No 23, 2015, pp. 926 to 930 (929 to 930).
(
16
)	Judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraphs 27 and 28).
(
17
)	See Opinion of Advocate General Cosmas in Heerma (C‑23/98, EU:C:1999:259, points 18 and 19). For an overview of the case, see Berlin, D., ‘Chronique de jurisprudence fiscale européenne’, Revue trimestrielle de droit européen, No 4, 2002, pp. 725 to 788 (731 to 734). It should be noted that the broad interpretation of the criteria laid down in Article 9(1) of Directive 2006/112 does not mean that Article 11 must be interpreted narrowly (judgment of 1 December 2022, Finanzamt T (Internal supplies within a VAT group), C‑269/20, EU:C:2022:944, paragraph 42).
(
18
)	See Opinion of Advocate General Kokott in Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:590, point 29), and 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 50), in which the Court of Justice clarified that the relationship of employer and employee referred to in Article 10 of Directive 2006/112 is only one relevant criterion for the purpose of applying Article 9(1) of that directive. It should also be noted that Article 5 of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1) expressly provides for a situation in which an entity, namely a European Economic Interest Grouping, must be regarded as a taxable person separate from its members.
(
19
)	With regard to Article 11 of Directive 2006/112, see in detail below, point 63 of this Opinion.
(
20
)	That issue must be distinguished from the issue of the application and use of goods by the taxable person for himself or herself, which is governed by Articles 16 and 26 of Directive 2006/112. See, in that regard, Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 32).
(
21
)	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, paragraphs 51 and 52), and Opinion of Advocate General Kokott in Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:590, points 26, 27 and 29). With respect to non-taxable internal transactions within an undertaking, in particular in the specific case of fixed establishments, see Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 35).
(
22
)	See, in particular, judgment of 17 December 2020, WEG Tevesstraße (C‑449/19, EU:C:2020:1038, paragraph 32). With regard to the relationship between a legal entity and its members, see also judgment of 27 January 2000, Heerma (C‑23/98, EU:C:2000:46, paragraph 18), and judgment of 12 October 2016, Nigl and Others (C‑340/15, EU:C:2016:764, paragraphs 30 to 34).
(
23
)	I would point out that the Court of Justice found a similar solution as regards the right to deduct in the judgment of 15 December 2011, Commission v France (C‑624/10, not published, EU:C:2011:849, paragraphs 45 and 48).
(
24
)	Judgment of 11 July 2024, Finanzamt T II (C‑184/23, EU:C:2024:599, paragraphs 38 to 41 and 47). See also Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 33): Article 11 of Directive 2006/112 ‘enables the Member States, under certain conditions, to treat two (or more) persons together as
a single taxable person, in order to avoid the existence of a transaction between those persons inter se. That serves to confer a certain “organisational neutrality”’. For an overview of the development of the case-law of the Court of Justice, see Korn, C., ‘UStG § 2 Unternehmer, Unternehmen. Unionsrechtliche Grundlage und Unterschiede zu § 2 Abs. 2 Nr. 2’, in Bunjes (ed.), Umsatzsteuergesetz, 24th ed., C.H. Beck, Munich, 2025, paragraphs 170 to 177 (170 to 172).
(
25
)	Unless I am mistaken, that provision, the implementation of which is optional, was in fact transposed into Belgian law by Royal Decree No 55 of 9 March 2007 on the regime for taxable persons forming a VAT group, which implements Article 4(2) of the Belgian VAT Code. See, in that regard, Hanssens, S., ‘Unité TVA’, in Bourgeois (ed.), TVA – questions choisies, Larcier, Brussels, 2021, pp. 181 to 202 (182 and 183).
(
26
)	Judgment of 11 July 2024, Finanzamt T II (C‑184/23, EU:C:2024:599, paragraphs 39 and 40).
(
27
)	In point 36 of his Opinion in Gmina Wrocław (C‑276/14, EU:C:2015:431), Advocate General Jääskinen points out that Article 13 of Directive 2006/112 can be applied only where there is a taxable person within the meaning of Article 9 of that directive, that is to say a person who ‘independently’ carries out an economic activity; it is therefore necessary to confirm the independent nature of the economic activity before examining the applicability of Article 13 of that directive.
(
28
)	Judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:2021:132, paragraphs 78 and 79). It should be noted that the Court of Justice has already examined the public nature of a commissioning association, such as Digipolis, and concluded that it was a body governed by public law for the purposes of Article 13(1) of Directive 2006/112 (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 50).
(
29
)	The Commission emphasised that point at the hearing.
(
30
)	Telematics refers to the combined use of telecommunications and information technology: Amory, B., Poullet, Y., ‘Le droit de la preuve face à l’informatique et à la télématique’, Revue internationale de droit comparé, No 37-2, 1985, pp. 331 to 352 (332). In their observations submitted to the Court, the successors to Digipolis also assert that the concept of ‘telematics’ refers to telecommunications and information technology activities.
(
31
)	See judgment of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraph 55): ‘… that activity is not subject to VAT only if it is possible to regard the activity referred to in Annex I to Directive 2006/112, carried out by a body governed by public law acting as a public authority, as being of such minimal scale in space or time and, consequently, of such a slight economic impact that the distortions of competition likely to result are liable to be, if not nil, at the very least insignificant.’
(
32
)	Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition: Series I Volume 1967, p. 16). The fourth paragraph of point 2 of Annex A to that directive provided: ‘the expression “independently” … also makes it possible for each Member State not to consider as separate taxable persons, but as one single taxable person, persons who, although independent from the legal point of view, are, however, organically linked to one another by economic, financial or organisational relationships. Any Member State intending to adopt such a system shall enter into the consultations mentioned in Article 16’. The fifth paragraph of point 2 of Annex A provided: ‘States, regional and local government bodies and other public corporate bodies shall not as a general rule be considered as taxable persons in respect of activities which they pursue in their official capacity as official authorities.’
(
33
)	See, in that regard, Hanssens, S., ‘Unité TVA’, in Bourgeois (ed.), TVA – questions choisies, Larcier, Brussels, 2021, pp. 181 to 202 (183).
(
34
)	Royal Decree No 55 of 9 March 2007 on the regime for taxable persons forming a VAT group. See also point 64 of this Opinion.
(
35
)	See points 39 and 40 of this Opinion.
(
36
)	See judgments of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 28), and of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 47 and the case-law cited), and Opinion of Advocate General Kokott in Latvijas Informācijas un komunikācijas tehnoloģijas asociācija (C‑87/23, EU:C:2024:222, points 56 and 57). See also point 53 of this Opinion.
(
37
)	See Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 31) according to which ‘a taxable transaction within the meaning of Article 2(1)(a) and (c) of … [Directive 2006/112] always presupposes the existence of two persons, at least one of whom – the supplier – must be a taxable person’.
(
38
)	Judgment of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 38).
(
39
)	Judgment of 21 September 2017, DNB Banka (C‑326/15, EU:C:2017:719, paragraphs 33 to 37).