Gemeente Borsele v Staatssecretaris van Financiën and Staatssecretaris van Financiën v Gemeente Borsele.
Date: 2016-05-12
24


In that regard, it should be noted that, according to settled case-law, a supply of services is effected ‘for consideration’, within the meaning of Article 2(1)(c) of the VAT Directive, and is therefore taxable, only if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (see, inter alia, judgments of 3 March 1994 in TolsmaC‑16/93, EU:C:1994:80, paragraph 14; 5 June 1997 in SDC, C‑2/95, EU:C:1997:278, paragraph 45; and 26 June 2003 in MKG-Kraftfahrzeuge-Factoring, C‑305/01, EU:C:2003:377, paragraph 47).
26


However, the fact that the price paid for an economic transaction is higher or lower than the cost price is irrelevant to the question whether a transaction is to be regarded as a ‘transaction effected for consideration’. The latter concept requires only that there be a direct link between the supply of goods or the provision of services and the consideration actually received by the taxable person (see, to that effect, judgments of 8 March 1988 in Apple and Pear Development Council, 102/86, EU:C:1988:120, paragraph 12, and 20 January 2005 in Hotel Scandic Gåsabäck, C‑412/03, EU:C:2005:47, paragraph 22).
29


In that regard, according to the Court’s case-law, in order to determine whether a service is supplied ‘in return for remuneration’, so that the activity in question is to be classified as an economic activity (see, to that effect, the judgment of 26 March 1987 in Commission v Netherlands, 235/85, EU:C:1987:161, paragraph 15), all the circumstances in which it is supplied have to be examined (see, to that effect, judgment of 26 September 1996 in Enkler, C‑230/94, EU:C:1996:352, paragraph 27).
30


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 may therefore be one way of ascertaining whether the activity concerned is an economic activity (see, by analogy, judgment of 26 September 1996 in Enkler, C‑230/94, EU:C:1996:352, paragraph 28).
33


In that regard, it should be noted, first, that the municipality of Borsele recovers, through the contributions that it receives, only a small part of the costs incurred. The contributions at issue in the main proceedings are not payable by each user and were paid by only a third of the users, with the result that they account for only 3% of the overall transport costs, the balance being financed by public funds. Such a difference between the operating costs and the sums received in return for the services offered suggests that the parental contribution must be regarded more as a fee than as consideration (see, by analogy, judgment of 29 October 2009 in Commission v Finland, C‑246/08, EU:C:2009:671, paragraph 50).
34


It therefore follows from that lack of symmetry that there is no genuine link between the amount paid and the services supplied. Hence, it does not appear that the link between the transport service provided by the municipality in question and the payment to be made by parents is sufficiently direct for that payment to be regarded as consideration for that service and, accordingly, for that service to be regarded as an economic activity within the meaning of Article 9(1) of the VAT Directive (see, by analogy, judgment of 29 October 2009 in Commission v Finland, C‑246/08, EU:C:2009:671, paragraph 51).