Kozuba Premium Selection sp. z o.o. z siedzibą w Warszawie v Dyrektor Izby Skarbowej w Warszawie.
Date: 2017-11-16
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It must be recalled, first of all, that the VAT Directive establishes a common system of VAT based on, inter alia, a uniform definition of taxable transactions (judgment of 11 May 2017, Posnania Investment, C‑36/16, EU:C:2017:361, paragraph 25 and the case-law cited).
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Article 12(1)(a) of the VAT Directive refers to the supply of a building or a part of a building and the land on which its stand, made before its first occupation. Thus, those provisions, read together, make a distinction between old and new buildings, the sale of an old building not being, as a rule, subject to VAT (see, to that effect, judgment of 12 July 2012, J.J. Komen en Zonen Beheer Heerhugowaard, C‑326/11, EU:C:2012:461, paragraph 21).
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The ratio legis of those provisions is the relative lack of added value generated by the sale of an old building. Even though it raises the concept of ‘economic activity’, within the meaning of Article 9 of the VAT Directive, the sale of a building following its first supply to a final consumer, which marks the end of the production process, does not generate any significant added value and must therefore, as a rule, be exempt (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 52).
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The Court of Justice has consistently held that the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation, which must take into account the context of that provision and the purpose of the legislation in question (see, to that effect, judgment of 13 October 2016, Mikołajczyk, C‑294/15, EU:C:2016:772, paragraph 44, and the case-law cited).
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It should also be observed at the outset that, according to settled case-law of the Court, the terms used to describe the exemptions envisaged by Article 135(1) of the VAT Directive are to be interpreted strictly since these constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see judgment of 19 November 2009, Don Bosco Onroerend Goed, C‑461/08, EU:C:2009:722, paragraph 25, and the case-law cited).
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Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in that article must be construed in such a way as to deprive the exemptions of their intended effects (judgment of 19 November 2009, Don Bosco Onroerend Goed, C‑461/08, EU:C:2009:722, paragraph 25 and the case-law cited).
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It follows that the principle of fiscal neutrality, which is the reflection by the European Union legislature, in matters relating to value added tax, of the principle of equal treatment (judgments of 10 April 2008, Marks & Spencer, C‑309/06, EU:C:2008:211, paragraph 49, and of 14 June 2017, Compass Contract Services, C‑38/16, EU:C:2017:454, paragraph 21), precludes the system of tax exemptions, as transposed into national laws, from being applied differently in one Member State than in another.
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Finally, the VAT exemptions are intended to enable a comparable collection of the European Union’s own resources in all the Member States. It follows that, even if Article 135(1)(j) of the VAT Directive, read in conjunction with Article 12 thereof (to which it refers), refers to the conditions for exemption fixed by the Member States, the exemptions laid down by that provision correspond to autonomous concepts of EU law so that the basis for assessing VAT may be determined in a uniform manner and according to common rules (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 47, and the case-law cited).
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That interpretation of the concept of ‘conversion’ is supported by the case-law of the Court according to which the supply of immovable property comprising land and an old building being transformed into a new building is exempt from VAT since, at the time of that supply, the old building had only undergone partial demolition work and was, at least in part, still used as such (judgment of 12 July 2012, J.J. Komen en Zonen Beheer Heerhugowaard, C‑326/11, EU:C:2012:461, paragraph 39).