Staatssecretaris van Financiën v X BV.
Date: 2013-05-30
15. The referring court refers to Case C‑29/08 SKF [2009] ECR I‑10413 (paragraphs 32 to 34 and point 2 of the operative part) in support of the view that the relevant disposal of 30% of the shares in A, which occurred in conjunction with the cessation of management activities in respect of that company, is an economic activity and should be exempt pursuant to Article 13B(d)(5) of the Sixth Directive.
20. It must be borne in mind in that regard that, according to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining enjoy a presumption of relevance (see Case C‑515/08 dos Santos Palhota and Others [2010] ECR I‑9133, paragraph 20, and Case C‑119/09 Société fiduciaire nationale d’expertise comptable [2011] ECR I‑2551, paragraph 21).
21. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25; Case C‑285/09 R  [2010] ECR I‑12605, paragraph 32; and Case C‑307/10 Chartered Institute of Patent Attorneys [2012] ECR I‑0000, paragraph 32 and the case-law cited).
27. However, Article 5(3)(c) of the Sixth Directive gives the Member States the option of considering to be tangible property shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof (Case C‑259/11 DTZ Zadelhoff [2012] ECR I‑0000, paragraph 31). Consequently, Article 5(8) of the Sixth Directive may conceivably still be relevant to the main proceedings.
29. In the first place, as regards the question whether the transfer of 30% of the shares in a company may constitute a transfer of a totality of assets or part thereof, it must be observed that the first sentence of Article 5(8) of the Sixth Directive provides that Member States may, in the event of a transfer of a totality of assets or part thereof, consider that no supply of goods has taken place and that the recipient is the successor to the transferor. It follows that, where a Member State has exercised that option, the transfer of a totality of assets or part thereof is not regarded as a supply of goods for the purposes of the Sixth Directive and is not subject to VAT under Article 2 of that directive (see Case C‑408/98 Abbey National [2001] ECR I‑1361, paragraph 30; Case C‑497/01 Zita Modes [2003] ECR I‑14393, paragraph 29; SKF , paragraph 36; and Case C‑444/10 Schriever [2011] ECR I‑0000, paragraph 20).
31. In the absence of an express reference in the Sixth Directive to the law of the Member States for the purpose of determining the meaning and scope of the concept of a transfer of a totality of assets or part thereof, this constitutes an independent concept of European Union law and must, therefore, be given a uniform interpretation in order to prevent divergences in the application of the VAT system in the Member States ( Zita Modes , paragraphs 32 and 35, and Schriever , paragraph 22).
32. The Court has interpreted that concept as meaning that it covers the transfer of a business or an independent part of an undertaking including tangible elements and, as the case may be, intangible elements which, together, constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity, but that it does not cover the simple transfer of assets, such as the sale of a stock of products (see Zita Modes , paragraph 40; SKF , paragraph 37; and Schriever , paragraph 24). It is also important, in order for Article 5(8) of the Sixth Directive to apply, that the transferee intends to operate the business, or the part of the undertaking, transferred and not simply to liquidate the activity concerned immediately ( Zita Modes , paragraph 44, and Schriever , paragraph 37).
34. In paragraph 25 of the judgment in Schriever , the Court emphasised that, in order to find that there has been a transfer of a business, or of an independent part of an undertaking, for the purposes of Article 5(8) of the Sixth Directive, all of the elements transferred must, together, be sufficient to allow an independent economic activity to be carried on.
36. According to the case-law of the Court, the mere acquisition, holding and sale of shares in a company do not, in themselves, amount to an economic activity within the meaning of the Sixth Directive, since the mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis. Any dividend yielded by that holding is merely the result of ownership of the property (see, to that effect, Case C‑60/90 Polysar Investments Netherlands  [1991] ECR I‑3111, paragraph 13; Case C‑142/99 Floridienne and Berginvest [2000] ECR I‑9567, paragraphs 17 and 22; Case C‑16/00 Cibo Participations  [2001] ECR I‑6663, paragraph 19; and Case C‑496/11 Portugal Telecom  [2012] ECR I‑0000, paragraph 32 and the case-law cited).
37. It is otherwise where the holding is accompanied by direct or indirect involvement in the management of the companies in which the holding has been acquired, if that entails carrying out transactions which are subject to VAT, such as the supply of administrative, financial, commercial and technical services (see, to that effect, Polysar Investments Netherlands , paragraph 14; Floridienne and Berginvest , paragraphs 18 and 19; Cibo Participations , paragraphs 20 and 21; and Portugal Telecom , paragraphs 33 and 34).
41. That finding is in no way affected by the aim of that provision. In accordance with the case-law of the Court, the specific purpose of Article 5(8) of the Sixth Directive is to facilitate transfers of undertakings or of parts of undertakings by making such transfers simpler and by preventing the resources of the recipient from being overburdened by a disproportionate charge to tax which, in any event, would ultimately be recovered through deduction of the input VAT paid (see Zita Modes , paragraph 39, and Schriever , paragraph 23).
42. In that regard the Court has held that special treatment is justified in particular by the fact that the amount of VAT to be advanced on the transfer is likely to be particularly large in relation to the resources of the business concerned ( Zita Modes , paragraph 41).
43. That difficulty does not arise, however, in the context of a transfer of a shareholding, regardless of its size. As is apparent from paragraphs 36 and 37 of the present judgment, the sale of shares either does not amount to an economic activity that is subject to VAT, or is exempt under Article 13B(d)(5) of the Sixth Directive if it is effected in order to secure a direct or indirect involvement in the management of the company in which the holding has been acquired (Case C‑155/94 Wellcome Trust  [1996] ECR I‑3013, paragraph 35). In either case, the person acquiring the shares does not bear the burden of VAT.
45. It must be borne in mind in that regard that, according to the fundamental principle which underlies the VAT system, VAT applies to each transaction by way of production or distribution after deduction of the VAT directly borne by the various cost components (see, in particular, Case C‑98/98 Midland Bank  [2000] ECR I‑4177, paragraph 29, and Abbey National , paragraph 27).
55. Lastly, with a view to giving the referring court a helpful answer, given that the answer to the questions referred for a preliminary ruling is needed in order that the referring court may determine whether there is a right to deduct in the circumstances of the main action, it must be recalled that there is a right to deduct where the input transactions effected have a direct and immediate link with output transactions giving rise to the right to deduct. If that is not the case, it is necessary to examine whether the costs incurred to acquire the input goods or services are part of the general costs linked to the taxable person’s overall economic activity. In either case, whether there is a direct and immediate link will depend on whether the cost of the input services is incorporated either in the cost of particular output transactions or in the cost of goods or services supplied by the taxable person as part of his economic activities ( Cibo Participations , paragraphs 31 and 33; SKF , paragraph 60; Case C‑118/11 Eon Aset Menidjmunt [2012] ECR I‑0000, paragraph 48; and Case C‑104/12 Becker  [2013] ECR I‑0000, paragraphs 19 and 20).