Nagyszénás Településszolgáltatási Nonprofit Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága.
Date: 2018-02-22
32


In that regard, it should be noted that the possibility of classifying a supply of services as a ‘transaction for consideration’, which, as a general rule, is subject to VAT under Article 2(1)(c) of Directive 2006/112, requires only that there be a direct link between that supply and the consideration actually received by the taxable person. Such a direct link is established if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the payment received by the provider of the service constituting the value actually given in return for the service supplied to the recipient (judgments of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 32, and of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 26).
33


In that context, the Court has held that an activity is covered by the term ‘economic activity’, within the meaning of Article 9(1) of Directive 2006/112, if it is engaged in for the purposes of obtaining income on a continuing basis (judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 28).
34


In the circumstances of the case, it is for the referring court to establish whether it is apparent from the documents before it and, in particular, from the contract at issue that the activities of NTN are effected for consideration and, therefore, constitute an economic activity within the meaning of Article 9(1) of Directive 2006/112, thus conferring on NTN the status of a taxable person. Nonetheless, the Court may provide the referring court with points of interpretation, in the light of the information included in the order for reference, in order to enable it to give its ruling (see, to that effect, judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 34).
37


If that fact were to be confirmed, it would follow that the fact that that compensation was determined, as the case may be, not on the basis of individualised services but at a flat rate and annually, so as to cover the operating costs of that company, would not in itself be such as to affect the direct link between the supply of services made and the consideration received (judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 36).
38


The direct nature of that link could not be called into question by the fact, assuming it were to be established, that the contract at issue contained clauses allowing, in certain circumstances, the amount of compensation to be adjusted; nor by the fact that that amount was fixed at a level lower than the open market value, provided that the amount of compensation was determined in advance on the basis of well-established criteria which ensured that it was sufficient to cover the operating costs of NTN (see, to that effect, judgments of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 38, and of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraphs 45 and 46).
39


Furthermore, in determining whether the activity at issue in the main proceedings is effected ‘for consideration’, the fact that performance of the public tasks constitutes a legal obligation imposed on the Municipality of Nagyszénás is not capable of calling into question the classification of such an activity as a ‘supply of services’ or the direct link between the service provided and the consideration given in exchange (see, by analogy, judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 41).
40


The fact that the activity at issue consists in the performance of duties conferred and regulated by law in the public interest is irrelevant for the purposes of determining whether that activity can be classified as a supply of services effected for consideration. In that context, the Court has held that, even when the object of the activity in question is to fulfil a constitutional obligation exclusively and directly incumbent upon the Member State concerned, the direct link between the supply of services and the consideration received cannot be called into question by that fact alone (see, inter alia, judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 42).
41


Moreover, although the public interest objective of certain services provided by, in particular, bodies governed by public law is taken into account in the common system of VAT, in so far as certain services are exempt from VAT under Article 132(1) of Directive 2006/112, it is common ground that the activity for which NTN is responsible under the contract at issue does not fall within any of those exceptions (see, by analogy, judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 41).
44


According to the settled case-law of the Court, it is clear from analysis of Article 13(1) of Directive 2006/112 made in the light of the aims of the directive that two conditions must be fulfilled cumulatively for the rule of treatment as a non-taxable person laid down by that provision to apply: the activities must be carried out by a body governed by public law and they must be carried out by that body acting as a public authority (judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 51 and the case-law cited).
45


As regards the first of those two conditions, namely, the condition that the body be governed by public law, the Court has held that, if the fact that, under the applicable national law, the body in question has powers conferred by public law is not decisive for the purposes of that classification, it does constitute, in so far as it is an essential characteristic specific to any public authority, a factor of definite importance in determining that the body must be classified as a ‘body governed by public law’ (judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 58).
49


In that context, there appears to be no organic link between NTN and the Municipality of Nagyszénás, in so far as that company was not established by a legislative act adopted by that municipality and defining the services NTN was to provide for it (see, to that effect, judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 67).
54


Subject to verification by the referring court of those various matters of fact and national law, in the context of an overall assessment taking into account the principle that Article 13(1) of Directive 2006/112 must be interpreted strictly as an exception to the general rule that any activity of an economic nature be subject to VAT (judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraph 49 and the case-law cited), it appears that the company at issue cannot be classified as a ‘body governed by public law’ within the meaning of that provision.
55


As regards the second condition laid down in Article 13(1) of Directive 2006/112, namely, that only activities carried out by a body governed by public law acting as a public authority are to be exempt from VAT, it is sufficient to point out that, in the light of the settled case-law of the Court (judgment of 29 October 2015, Saudaçor, C‑174/14, EU:C:2015:733, paragraphs 70 and 71 and the case-law cited), it appears that that condition is not satisfied either in the circumstances of the case.