Judgment of the Court (Eighth Chamber) of 7 March 2013 — Efir

(Case C-19/12)

‛Value added tax — Directive 2006/112/EC — Articles 62, 63, 65, 73 and 80 — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons — Barter contract — VAT on construction services — Chargeable event — When chargeable — Whether both taxable transactions and exempt transactions are covered by the concept of a chargeable event — Payment on account of the entire consideration — Payment on account — Basis of assessment for a transaction in the event of consideration in the form of goods or services — Direct effect’

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of relevant EU law — Reformulation of the questions (Art. 267 TFEU) (see paras 26, 27)

2. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Supply of goods or services — Supply of goods or services — Establishment of a building right in order to erect a building by way of consideration for construction services of real property which are to form part of that building — Tax on those construction services chargeable as from the establishment of the building right — Lawfulness — Conditions — Verification a matter for the national court (Council Directive 2006/112, Arts 63 and 65) (see para. 40, operative part 1)

3. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Supply of goods or services — Transaction between persons having ties — Option for the Member States to use, as the taxable amount, the open market value of the transaction — Consideration for a transaction between persons not having ties being made up entirely of goods or services — National legislation providing that the taxable amount is the open market value of the goods or services supplied — Unlawful (Council Directive 2006/112, Arts 73 and 80) (see para. 46, operative part 1)

4. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Taxable amount — Supply of goods or services — Articles 63, 65 and 73 of Directive 2006/112 — Direct effect (Council Directive 2006/112, Arts 63, 65 and 73) (see para. 49, operative part 2)

Re:

Request for a preliminary ruling — Varhoven administrativen sad — Interpretation of Article 62(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Occurrence of the chargeable event — National legislation providing for the application of the concept of a chargeable event to both taxable transactions and exempt transactions — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons.

Operative part:

1. Articles 63 and 65 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, where building rights are established in favour of a company to erect a building, by way of consideration for construction services of certain real property which that company has undertaken to deliver on a turn-key basis to the persons who established those building rights, those provisions do not preclude the VAT on those construction services from becoming chargeable as from the moment when those building rights are established, that is to say, before those services are performed, provided that, at the time those rights are established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of those rights may be expressed in monetary terms, which it is for the national court to verify.

In circumstances such as those of the main proceedings, where the transactions are not completed between parties having ties within the meaning of Article 80 of Directive 2006/112, which it is for the national court to verify, Articles 73 and 80 of that directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, under which, when the consideration for a transaction is made up entirely of goods or services, the taxable amount of the transaction is the open market value of the goods or services supplied.

2. Articles 63, 65 and 73 of Directive 2006/112 have direct effect

Judgment of the Court (Eighth Chamber) of 7 March 2013 — Efir

(Case C-19/12)

‛Value added tax — Directive 2006/112/EC — Articles 62, 63, 65, 73 and 80 — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons — Barter contract — VAT on construction services — Chargeable event — When chargeable — Whether both taxable transactions and exempt transactions are covered by the concept of a chargeable event — Payment on account of the entire consideration — Payment on account — Basis of assessment for a transaction in the event of consideration in the form of goods or services — Direct effect’

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of relevant EU law — Reformulation of the questions (Art. 267 TFEU) (see paras 26, 27)

2. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Supply of goods or services — Supply of goods or services — Establishment of a building right in order to erect a building by way of consideration for construction services of real property which are to form part of that building — Tax on those construction services chargeable as from the establishment of the building right — Lawfulness — Conditions — Verification a matter for the national court (Council Directive 2006/112, Arts 63 and 65) (see para. 40, operative part 1)

3. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Supply of goods or services — Transaction between persons having ties — Option for the Member States to use, as the taxable amount, the open market value of the transaction — Consideration for a transaction between persons not having ties being made up entirely of goods or services — National legislation providing that the taxable amount is the open market value of the goods or services supplied — Unlawful (Council Directive 2006/112, Arts 73 and 80) (see para. 46, operative part 1)

4. Harmonisation of fiscal legislation — Common system of value added tax — Chargeable event and chargeability of the tax — Taxable amount — Supply of goods or services — Articles 63, 65 and 73 of Directive 2006/112 — Direct effect (Council Directive 2006/112, Arts 63, 65 and 73) (see para. 49, operative part 2)

Re:

Request for a preliminary ruling — Varhoven administrativen sad — Interpretation of Article 62(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Occurrence of the chargeable event — National legislation providing for the application of the concept of a chargeable event to both taxable transactions and exempt transactions — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons.

Operative part:

1. Articles 63 and 65 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, where building rights are established in favour of a company to erect a building, by way of consideration for construction services of certain real property which that company has undertaken to deliver on a turn-key basis to the persons who established those building rights, those provisions do not preclude the VAT on those construction services from becoming chargeable as from the moment when those building rights are established, that is to say, before those services are performed, provided that, at the time those rights are established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of those rights may be expressed in monetary terms, which it is for the national court to verify.

In circumstances such as those of the main proceedings, where the transactions are not completed between parties having ties within the meaning of Article 80 of Directive 2006/112, which it is for the national court to verify, Articles 73 and 80 of that directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, under which, when the consideration for a transaction is made up entirely of goods or services, the taxable amount of the transaction is the open market value of the goods or services supplied.