Stichting "Goed Wonen" v Staatssecretaris van Financiën.
Date: 2001-10-04
34 Furthermore, as the Netherlands Government and the Commission rightly point out, the Member States are at liberty to exercise the choice afforded them by Article 5(3) of the Sixth Directive, by, inter alia, laying down certain conditions, in so far as these do not fundamentally alter the nature of the choice afforded, since no provision of the Sixth Directive in any way restricts the Member States' discretion in this regard.  Consequently, whilst Article 5(3) of the Sixth Directive allows all the rights in question to be treated as tangible property, or only one or more of those rights to be so treated, that provision also allows such treatment to be restricted to only those rights which meet the precise criteria adopted by the Member State concerned.
44 In considering the merits of that argument, it is to be noted that the Sixth Directive does not define `leasing' or `letting', nor does it refer to relevant definitions adopted in the legal orders of the Member States, as it does, for example, as regards `building land' (see Article 4(3)(b)) of the Sixth Directive, which provides that `"building land" shall mean any unimproved or improved land defined as such by the Member States'.
45 As is clear from the actual wording of Article 13B(b) and C of the Sixth Directive, the latter has left the Member States wide discretion as to whether the transactions concerned are to be exempt or taxed (see Case C-12/98 Amengual Far [2000] ECR I-527, paragraph 13).
46 Next, it is settled in case-law that, since the exemptions provided for in the Sixth Directive, in particular in Article 13, are derogations from the general principle stated in Article 2 of the Directive, according to which VAT is to be levied on all supplies of goods or services made for consideration by a taxable person, those exemptions must be interpreted strictly (see, as regards in particular the exemption for leasing and letting of immovable property, Case C-358/97 Commission v Ireland [2000] ECR I-6301, paragraph 55, and Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25).
47 Finally, it should be observed that, according to the 11th recital of the preamble to the Sixth Directive, the Council's aim in establishing the common list of exemptions was to ensure that the Community's own resources are collected in a uniform manner in all the Member States.  It follows that, even though Article 13B of the Sixth Directive refers to the exemption conditions laid down by the Member States, the exemptions provided for by that provision must constitute independent concepts of Community law so that the basis for assessing VAT is determined uniformly and according to Community rules (see Commission v Ireland, paragraph 51, and Case C-240/99 Försäkringsaktiebolaget Skandia [2001] ECR I-1951, paragraph 23).
49 As the Advocate General points out in paragraph 71 to 75 of his Opinion, such an approach would ignore the significant differences existing between the legal systems of the Member States in the matter of rights in rem conferring on their holder a right of user over immovable property.  Moreover, the Court has held that the concept of leasing or letting in Article 13B(b) of the Sixth Directive is broader than that existing in the various national laws (see Commission v Ireland, paragraph 54).
52 Although the leasing of immovable property is in principle covered by the concept of economic activity within the meaning of Article 4 of the Sixth Directive, it is normally a relatively passive activity, not generating any significant added value.  Like sales of new buildings following their first supply to a final consumer, which marks the end of the production process, the leasing of immovable property must therefore in principle be exempt from taxation, without prejudice to the right to opt for taxation which the Member States may grant to taxable persons, pursuant to Article 13C of the Sixth Directive.
53 However, it is also consistent with the general aim of the Sixth Directive that if immovable property is made available to a taxable person through leasing or letting, as a means of contributing to the production of goods or services whose cost is passed on in their price, the property stays within, or returns to, the economic circuit and must be capable of giving rise to taxable transactions. The common characteristic of the transactions which Article 13B(b) of the Sixth Directive excludes from the scope of the exemption is indeed that they involve more active exploitation of immovable property, thus justifying supplementary taxation, in addition to that charged on the initial sale of the property.
55 The fundamental characteristic of such a transaction, which it has in common with leasing, lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right.
56 Consequently, observance of the principle of the neutrality of VAT and the requirement for a consistent application of the provisions of the Sixth Directive, in particular the proper, simple and uniform application of the exemptions provided for (see Case C-283/95 Fischer [1998] ECR I-3369, paragraph 28), entail treating the grant of a right such as the usufructuary right in question in the present case like leasing and letting, for the purposes of the application of Article 13B(b) and C(a) of the Sixth Directive.