NLB Leasing d.o.o. v Republika Slovenija.
Date: 2015-07-02
25. It must be recalled that, in proceedings under Article 267 TFEU, the Court of Justice has no jurisdiction to apply rules of EU law to a particular case (judgment in Patriciello , C‑163/10, EU:C:2011:543, paragraph 21). In a case such as that in the main proceedings, it is for the court making the reference to carry out the legal classifications necessary to resolve the dispute in the main proceedings. On the other hand, it is for the Court of Justice to provide the national court with all necessary information with a view to offering guidance in that determination (judgment in Patriciello , C‑163/10, EU:C:2011:543, paragraph 23).
28. It is clear from the Court’s case-law that an operating lease must be distinguished from a finance lease, the nature of the latter being that substantially all the risks and rewards of legal ownership are transferred to the lessee. The fact that a transfer of ownership is provided for on the expiry of the contract or the fact that the present value of the lease payments is practically identical to the market value of the property constitute, separately or together, criteria which permit a determination of whether a contract can be categorised as a finance lease (see, to that effect, judgment in Eon Aset Menidjmunt , C‑118/11, EU:C:2012:97, paragraph 38).
30. Accordingly, where a financial leasing agreement relating to immovable property provides either that ownership of that property is to be transferred to the lessee on the expiry of that agreement or that all the essential powers attaching to ownership of that property are to be enjoyed by the lessee and, in particular, substantially all the rewards and risks incidental to legal ownership of that property are transferred to the lessee and the present value of the amount of the lease payments is practically identical to the market value of the property, the transaction resulting from that agreement must be treated as an acquisition of capital goods (see, to that effect, judgment in Eon Aset Menidjmunt , C‑118/11, paragraph 40).
35. In that regard, it must be noted that Article 90(1) of the VAT Directive, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, that person has not received part or any of the consideration. That provision embodies one of the fundamental principles of the VAT Directive, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person received (judgment in Almos Agrárkülkereskedelmi , C‑337/13, EU:C:2014:328, paragraph 22).
36. It follows from the Court’s case-law that, apart from cases of cancellation or termination of contracts, in which the parties are restored to the position which they were in before concluding the contract and the taxable person no longer has a claim, Article 90(1) of the VAT Directive applies only to those situations in which the other party to the contract fails to settle, or only settles in part, a liability for which it is, none the less, liable under that contract (see, to that effect, judgment in Almos Agrárkülkereskedelmi , C‑337/13, EU:C:2014:328, paragraphs 23 and 24).
40. In that regard, it should be recalled that it follows from the Court’s case-law that the principle of fiscal neutrality inherent in the common system of VAT precludes the taxation of a taxable person’s business activities leading to double taxation (see, to that effect, judgments in Puffer , C‑460/07, EU:C:2009:254, paragraph 45 and 46, and Klub , C‑153/11, EU:C:2012:163, paragraph 42).
41. The Court has also held that, for VAT purposes, every supply must normally be regarded as distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (judgment in BGŻ Leasing , C‑224/11, EU:C:2013:15, paragraph 29). However, in certain circumstances several formally distinct services, which could be supplied separately and thus give rise, in turn, to taxation or exemption, must be considered to be a single transaction when they are not independent (see, to that effect, judgment in RR Donnelley Global Turnkey Solutions Poland , C‑155/12, EU:C:2013:434, paragraph 20).