Susanne Leichenich v Ansbert Peffekoven and Ingo Horeis.
Date: 2012-11-15
17. In that respect, it should first be recalled that, according to consistent case‑law, the exemptions under Article 13 of the Sixth Directive have their own independent meaning in Community law and must therefore be given a Community definition, and that interpretation of the concept of a leasing of immovable property contained in Article 13B(b) of the Sixth Directive cannot depend on that given by the civil law of a Member State ( Maierhofer , cited above, paragraphs 25 and 26, and case‑law cite d).
18. Furthermore, under the division of jurisdiction between the Courts of the European Union and the national courts, the Court must take account of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (Case C‑434/08 Harms  [2010] ECR I‑4431, paragraph 33).
21. Having regard to those factual elements, it must be held that the non-submerged part of the ground corresponding, in the case in the main proceedings, to the plot contiguous with the site of the houseboat on the water constitutes immovable property. Similarly, the submerged and demarcated part of the riverbed, which is covered by the river water on which the houseboat rests, constitutes immovable property (see, to that effect, Fonden Marselisborg Lystbådehavn , paragraph 34; Case C‑451/06 Walderdorff  [2007] ECR I‑10637, paragraph 19). The national court observes that use of the houseboat permanently prevents any other use of the waters which it covers.
23. It is apparent from the order for reference that the houseboat, without any system of propulsion, has been immobilised on that part of the river water for many years. It is attached to the demarcated part of the riverbed by means of anchors and is attached to the bank by chains and ropes. Those immobilisation measures cannot be removed easily, that is to say without effort and considerable cost. In accordance with the case‑law of the Court of Justice, it is not necessary for a construction to be indissociably incorporated into the ground in order to be regarded as immovable property for the purposes of applying the rules on VAT ( Maierhofer , paragraph 33).
24. By the terms of the leasing contract which is concluded for a duration of five years and which shows no wish of the parties to confer an occasional and temporary character to the use made of the houseboat, the latter is used exclusively for the permanent operation of a restaurant‑discotheque. Moreover, the houseboat has a postal address and telephone line and is connected to the water and electricity mains.
29. Having regard to the above considerations, the answer to the first question and the second part of the second question is that, on a proper interpretation of Article 13B(b) of the Sixth Directive, the concept of the leasing or letting of immovable property includes the leasing of a houseboat, including the space and the landing stage contiguous therewith, which is fixed by attachments which are not easily removable to the bank and bed of a river, stays in a demarcated and identifiable location in the river water and is exclusively used, according to the terms of the leasing contract, for the permanent operation of a restaurant-discotheque at that location. That leasing constitutes a single exempt supply, without it being necessary to distinguish between the leasing of the houseboat and that of the landing stage.
The first part of the second question
31. In accordance with the case‑law of the Court of Justice, the term ‘vehicle’ used in that provision must be interpreted as covering all means of transport, including boats ( Fonden Marselisborg Lystbådehavn , paragraph 44). According to the normal interpretation of those words, that means methods for transporting persons or goods, namely methods actually used for that function.