Balkan and Sea Properties ADSITS and Provadinvest OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite.
Date: 2012-04-26
40. If those structures and the ground on which they stand cannot be classified as ‘buildings’ within the meaning of the first subparagraph of Article 12(2) of the VAT Directive, a distinction must be drawn depending on whether there are distinct supplies of land and of other elements or one single transaction consisting primarily of the supply of land (see, to that effect, Case C‑461/08 Don Bosco Onroerend Goed  [2009] ECR I‑11079, paragraphs 35 to 38). It should also be ascertained whether the land in question falls within the definition of ‘building land’ in Article 12(3) of the VAT Directive. If so, the supplies would be taxable. If not, the supplies would be exempt in accordance with Article 135(1)(k) of the directive, subject to a possible right to opt for taxation.
41. Such assessments of fact are within the jurisdiction of the referring court in the procedure established in Article 267 TFEU (see, to that effect, Case 104/77 Oehlschläger  [1978] ECR 791, paragraph 4; Case C‑30/93 AC‑ATEL Electronics Vertriebs  [1994] ECR I‑2305, paragraphs 16 and 17; and Case C‑318/98 Fornasar and Others  [2000] ECR I‑4785, paragraphs 31 and 32).
Questions 1 to 4 in Case C‑621/10 and Questions 1 to 5 in Case C‑129/11
43. In accordance with the general rule set out in Article 73 of the VAT Directive, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria (see, to that effect, Case 154/80 Coöperatieve Aardappelenbewaarplaats  [1981] ECR 445, paragraph 13; Case C‑412/03 Hotel Scandic Gåsabäck  [2005] ECR I‑743, paragraph 21; and Case C‑285/10 Campsa Estaciones de Servicio  [2011] ECR I‑5059, paragraph 28).
44. Article 73 of the VAT Directive is the expression of a fundamental principle, the corollary of which is that the tax authorities may not collect as VAT an amount exceeding the tax paid to the taxable person (see, to that effect, Case C‑330/95 Goldsmiths  [1997] ECR I‑3801, paragraph 15).
45. By allowing the taxable amount to be taken as the open market value of the transaction in certain cases, Article 80(1) of the VAT Directive lays down an exception to the general rule stated in Article 73 of the directive, which must as such be interpreted strictly (see Case C‑453/05 Ludwig  [2007] ECR I‑5083, paragraph 21, and Case C‑41/09 Commission  v Netherlands  [2011] ECR I‑831, paragraph 58 and the case‑law cited).
51. It follows from the foregoing that the conditions of application laid down in Article 80(1) of the VAT Directive are exhaustive and, consequently, that national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of the transaction in cases other than those listed in that provision, in particular where the supplier or acquirer has a full right of deduction of VAT.
52. The answer to Questions 1 to 4 in Case C‑621/10 and Questions 1 to 5 in Case C‑129/11 is therefore that Article 80(1) of the VAT Directive must be interpreted as meaning that the conditions of application it sets out are exhaustive and, consequently, that national legislation cannot on the basis of that provision provide that the taxable amount is to be the open market value of the transaction in cases other than those listed in that provision, in particular where the taxable person has a full right of deduction of VAT, which is for the national court to ascertain.
Question 5 in Case C‑621/10 and Question 6 in Case C‑129/11
54. It is for the referring court, to the full extent of its discretion under national law, to interpret and apply national law in conformity with the requirements of European Union law and, where such an interpretation is not possible, to disapply any provision of domestic law that would be contrary to those requirements (see, to that effect, Case C‑357/06 Frigerio Luigi & C.  [2007] ECR I‑12311, paragraph 28, and Joined Cases C‑395/08 and C‑396/08 Bruno and Others  [2010] ECR I‑5119, paragraph 74).
56. According to settled case‑law of the Court, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the State has failed to transpose the directive into national law within the time-limit or has transposed it incorrectly (see Case C‑226/07 Flughafen Köln-Bonn  [2008] ECR I‑5999, paragraph 23, and Case C‑203/10 Auto Nikolovi  [2011] ECR I‑1083, paragraph 61).
57. It also follows from the Court’s case‑law that the fact that a provision of a directive gives Member States a choice does not necessarily render it impossible to determine with sufficient precision, on the basis of the provisions of the directive alone, the content of the rights thus conferred on individuals (see Flughafen Köln-Bonn , paragraph 30, and Case C‑138/07 Cobelfret  [2009] ECR I‑731, paragraph 61).
61. That would have the consequence that Article 73 of the VAT Directive would be applicable in order to establish that, subject to the exceptions provided for by that directive, the taxable amount of the transactions at issue in the main proceedings is the consideration actually received. As the Court has held with respect to Article 11(A)(1)(a) of the Sixth Directive 77/388, as amended by Directive 2006/69, which became Article 73 of the VAT Directive, that provision has direct effect (see, to that effect, Case C‑62/93 BP Soupergaz  [1995] ECR I‑1883, paragraphs 34 to 36, and Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 47).