Manuel Jorge Sequeira Mesquita v Fazenda Pública.
Date: 2019-02-28
16


According to settled case-law, the exemptions provided for in Article 13 of the Sixth Directive constitute independent concepts of EU law (judgments of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 47, and of 15 November 2012, Leichenich, C‑532/11, EU:C:2012:720, paragraph 17).
17


Moreover, although those exemptions are derogations from the general principle stated in Article 2 of the Sixth Directive, according to which VAT is to be levied on each supply of services made for consideration by a taxable person, and therefore must be interpreted strictly, the concept of leasing or letting in Article 13B(b) of that directive is broader than that existing in the various national laws (judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraphs 46 and 49 and the case-law cited).
18


In a number of cases, the Court has defined the concept of the letting of immovable property, within the meaning of that provision, as the conferring by a landlord on a tenant, for an agreed period and in return for rent, of the right to occupy that property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraph 55, and of 6 December 2007, Walderdorff, C‑451/06, EU:C:2007:761, paragraph 17 and the case-law cited).
19


The Court has also clarified that the exemption provided for in Article 13B(b) of the Sixth Directive is due to the fact that the leasing of immovable property, whilst being an economic activity, is normally a relatively passive activity, not generating any significant added value. Such an activity is thus to be distinguished from other activities which are either industrial and commercial in nature, such as those giving rise to the exceptions referred to in Article 13B(b)(1) to (4) of that directive, or have as their subject matter something which is best understood as the provision of a service rather than simply the making available of property, such as the right to use a golf course, the right to use a bridge in consideration of payment of a toll or the right to install cigarette machines in commercial premises (see, to that effect, judgment of 4 October 2001, Goed Wonen, C‑326/99, EU:C:2001:506, paragraphs 52 and 53, and of 18 November 2004, Temco Europe, C‑284/03, EU:C:2004:730, paragraph 20).
20


It follows that the passive nature of the leasing or letting of immovable property, which justifies the exemption from VAT of such transactions under Article 13B(b) of the Sixth Directive, is due to the nature of the transaction itself and not to the way in which the tenant uses the property concerned.
21


Thus, as the Court has already held, an activity is excluded from that exemption where it entails not only the passive activity of making immovable property available but also a certain number of commercial activities, such as supervision, management and continuing maintenance by the owner, as well as the provision of other facilities, so that, in the absence of quite exceptional circumstances, letting out that property cannot therefore constitute the main service supplied (see, to that effect, judgment of 18 January 2001, Stockholm Lindöpark, C‑150/99, EU:C:2001:34, paragraph 26).
22


By contrast, the mere fact that the tenant of immovable property uses that property for commercial purposes, in accordance with the terms of the letting contract, is not, of itself, such as to preclude the owner of that property being exempt from VAT under Article 13B(b) of the Sixth Directive (see, to that effect, judgment of 15 November 2012, Leichenich, C‑532/11, EU:C:2012:720, paragraph 29).
23


As regards the case in the main proceedings, it must be noted that it does not appear to be contested that the agricultural land comprising vineyards –– the agricultural use of which forms part of the transfer contract at issue in the main proceedings –– constitutes immovable property, within the meaning of Article 13B(b) of the Sixth Directive. In that regard, it should be recalled, as regards, more specifically, the vines planted on such land, that the concept of ‘immovable property’ does not imply that the objects in question must be indissociably incorporated into the ground. It is sufficient that they are not mobile, nor easily movable (see, to that effect, judgments of 16 January 2003, Maierhofer, C‑315/00, EU:C:2003:23, paragraphs 32 and 33, and of 15 November 2012, Leichenich, C‑532/11, EU:C:2012:720, paragraph 23). That appears to be the case for those vines; it is, however, a matter for the referring court to determine.
25


As regards, more specifically, the question posed by the referring court in relation to the duration of the contract for transfer at issue in the main proceedings and to the renewal conditions for that contract, it should be noted that the actual period of the letting is not, of itself, the decisive factor in determining whether a contract is one for the letting of immovable property, within the meaning of Article 13B(b) of the Sixth Directive, except so far as concerns short-term leases (see, to that effect, judgment of 18 November 2004, Temco Europe, C‑284/03, EU:C:2004:730, paragraph 21 and the case-law cited). In any event, that duration and those renewal conditions cannot be regarded as being incompatible with leasing or letting within the meaning of that provision.
29


In that connection, it should be noted that, first, since the immovable property that was transferred under that contract was merely the subject of a lease, not a transfer of property rights, it did not constitute a transfer of a totality of assets, within the meaning of Article 5(8) of the Sixth Directive (see, to that effect, judgment of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraphs 22 and 23).
30


Secondly, the Court has held that a supply must be regarded as a single supply where two or more elements or acts supplied by the taxable person are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (judgment of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraph 33 and the case-law cited).
31


In so far as, as the Portuguese Government claims, the contract for transfer at issue in the main proceedings covered not only the immovable property in question, but also resulted in the transfer of certain assets and intangible rights, the latter cannot be decoupled from the transfer of that immovable property, but is an integral part thereof, so that that transfer contract constitutes a single supply in which the making available of the immovable property is the principal supply. In those circumstances, that contract constitutes a transaction which comes within the scope of Article 13B(b) of the Sixth Directive (see, by analogy, judgment of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraphs 39 to 41).