Turn- und Sportunion Waldburg v Finanzlandesdirektion für Oberösterreich.
Date: 2006-01-12
20. In that regard, it is sufficient to point out that it is not for the Court, in the context of a reference for a preliminary ruling, to assess whether questions referred to it by a national court are relevant or to rule on the interpretation of national laws or regulations and to decide whether the referring court’s interpretation of them is correct (see, to that effect, Case 52/77 Cayrol  [1977] ECR 2261, paragraph 32; Case C‑347/89 Eurim-Pharm  [1991] ECR I‑1747, paragraph 16; and Case C‑58/98 Corsten  [2000] ECR I-7919, paragraph 24).
21. The Court must take account, under the division of jurisdiction between the Community judicature and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see Case C‑153/02 Neri  [2003] ECR I‑13555, paragraphs 34 and 35, and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri  [2004] ECR I‑5257, paragraph 42).
25. As an initial point, it should be noted that the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of Community law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, inter alia, Case C‑349/96 CPP  [1999] ECR I‑973, paragraph 15, and Case C‑269/00 Seeling  [2003] ECR I‑4101, paragraph 46).
26. According to established case-law, the taxation of leasing and letting transactions is a power which the Community legislature has conferred on the Member States in derogation from the general rule established in Article 13(B)(b) of the Sixth Directive, according to which leasing and letting transactions are exempt from VAT. The right to deduct attached to that taxation does not therefore operate automatically in that context, but only if the Member States have made use of the power under Article 13(C) of the Sixth Directive and subject to the taxable persons exercising the right of option allowed to them (see Case C‑269/03 Vermietungsgesellschaft Objekt Kirchberg  [2004] ECR I‑8067, paragraph 20).
27. As the Court has previously held, it is clear from the wording of Article 13(C) of the Sixth Directive that Member States may, by virtue of this power, allow persons benefiting from the exemptions provided for by that directive to waive the exemption in all cases or within certain limits or subject to certain detailed rules (see Case 8/81 Becker  [1982] ECR 53, paragraph 38).
28. Article 13(C) of the Sixth Directive thus allows the Member States to grant taxable persons the right to opt for taxation of lettings of immovable property, but also allows them to restrict the scope of that right or withdraw it (see Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep  [2004] ECR I‑5337, paragraph 66).
29. It follows that the Member States have a wide discretion under Article 13(C) of the Sixth Directive.  It is for them to assess whether they should or should not introduce the right of option, depending on what they consider to be expedient in the situation existing in their country at a given time (see Case C‑381/97 Belgocodex  [1998] ECR I‑8153, paragraphs 16 and 17; Case C‑12/98 Amengual Far  [2000] ECR I‑527, paragraph 13; and Case C‑326/99 ‘Goed Wonen’  [2001] ECR I‑6831, paragraph 45).
30. Thus, in exercising their discretion with regard to the right of option, the Member States may also exclude certain transactions or certain categories of taxable persons from the scope of application of that right.
31. Nevertheless, as the Commission correctly points out, when the Member States use their ability to restrict the scope of the right of option and to determine the arrangements for its exercise, they are to observe the general objectives and principles of the Sixth Directive, in particular the principle of fiscal neutrality and the requirement for correct, straightforward and uniform application of the exemptio ns provided for (see, to that effect, Case C-283/95 Fischer  [1998] ECR I-3369, paragraph 27, and ‘Goed Wonen’ , paragraph 56).
32. The principle of fiscal neutrality, which is laid down in Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967(I), p. 14) and which is inherent in the common system of VAT, as the fourth and fifth recitals in the preamble to the Sixth Directive state, requires that all economic activities should be treated in the same way (Case C-155/94 Wellcome Trust  [1996] ECR I-3013, paragraph 38, and Belgocodex , paragraph 18). The same is true of economic operators carrying out the same activities (Case C‑216/97 Gregg [1999] ECR I-4947, paragraph 20).
33. In that regard, the Court has held that the principle of fiscal neutrality precludes, in particular, treating similar supplies of services, which are thus in competition with each other, differently for VAT purposes (see, inter alia, Case C‑267/99 Adam  [2001] ECR I‑7467, paragraph 36; Case C‑109/02 Commission  v Germany  [2003] ECR I‑12691, paragraph 20; and Case C‑498/03 Kingscrest Associates and Montecello  [2005] ECR I‑4427, paragraph 41).
34. It is clear from that case-law that the identity of the providers of services and the legal form by means of which they exercise their activities are, as a rule, irrelevant in assessing whether supplies of services are comparable (see Joined Cases C‑453/02 and C‑462/02 Linneweber and Akritidis  [2005] ECR I‑1131, paragraphs 24 and 25).
39. As a preliminary point, it should be noted that the Sixth Directive does not contain a rule generally exempting all services linked to the practice of sport and physical education (see, to that effect, Case C‑150/99 Stockholm Lindöpark  [2001] ECR I‑493, paragraph 22).
40. The transactions of non-profit-making sports clubs are exempt, as activities in the public interest, pursuant to Article 13(A)(1)(m) of the Sixth Directive, provided that they are closely linked to the practice of sport or physical education and that the supplies are made to persons practising sport or physical education (see, to that effect, Case C‑124/96 Commission  v Spain  [1998] ECR I‑2501, paragraph 15; Stockholm Lindöpark , paragraph 19; and Case C‑174/00 Kennemer Golf  [2002] ECR I‑3293, paragraph 19).
43. Nevertheless, as the Court has already held, Article 13(C) of the Sixth Directive does not confer upon the Member States the right to place conditions on or to restrict in any manner whatsoever the exemptions provided for by part B of that article.  It merely reserves the right to the Member States to allow, to a greater or lesser degree, persons entitled to those exemptions to opt for taxation themselves, if they consider that it is in their interest to do so (see Becker , paragraph 39).
44. In accordance with Article 13(B) of the Sixth Directive, the Member States exempt the leasing or letting of immovable property under conditions which they lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse.  The decision of a Member State, pursuant to Article 13(C) of that directive, to restrict the scope of the right to opt for taxation of leasing of immovable property may be justified, inter alia, by the same aims.
45. Such a decision must, however, observe the principle of neutrality reiterated in paragraphs 32 to 34 above.
46. It is for the national court to determine, having regard to the specific circumstances of the case in the main proceedings and to the case-law cited above, whether or not the application of a general exemption to all transactions, including the leasing of immovable property, effected by non-profit-making sports clubs entails a breach of the principle of fiscal neutrality.