Régie communale autonome du stade Luc Varenne v État belge.
Date: 2015-01-22
21. According to settled case-law, the fundamental characteristic of the concept of ‘letting of immovable property’ for the purposes of Article 13B(b) of the Sixth Directive lies in conferring on the other party to the contract, 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. In order to determine whether a contract falls within that definition, account should be taken of all the characteristics of the transaction and the circumstances in which it takes place. The decisive factor in this regard is the objective character of the transaction at issue, irrespective of how that transaction is classified by the parties (judgment in MacDonald Resorts , C‑270/09, EU:C:2010:780, paragraph 46 and case-law cited).
22. It must also be recalled that, for there to be letting of immovable property within the meaning of Article 13B(b) of the Sixth Directive, all the conditions characterising that transaction must be satisfied, that is to say, the landlord of property must have assigned to the tenant, in return for rent and for an agreed period, the right to occupy his property and to exclude other persons from it (judgment in Medicom and Maison Patrice Alard , C‑210/11 and C‑211/11, EU:C:2013:479, paragraph 26 and case-law cited).
23. Article 13B(b) of the Sixth Directive constitutes an exception to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person and it must therefore be interpreted strictly. If one of the conditions referred to in the preceding paragraph is not fulfilled, that provision may not be applied by analogy on the ground that a letting within the meaning of that provision is what the use of immovable property at issue most closely resembles (see, to that effect, the judgment in Medicom and Maison Patrice Alard , EU:C:2013:479, paragraph 27).
24. As a general rule, it is for the national courts, which alone are competent to assess the facts, to establish, in the light of the specific circumstances of each case, the essential characteristics of the transaction in question in order to classify it under the Sixth Directive (see, to that effect, inter alia, the judgment in Medicom and Maison Patrice Alard , EU:C:2013:479, paragraph 33 and case-law cited).
25. As regards, more specifically, the classification of the use of sporting facilities, the Court has previously stated that services linked to the practice of sport or physical education must, so far as is possible, be considered as a whole (judgment in Stockholm Lindöpark , C‑150/99, EU:C:2001:34, paragraph 26).
26. Accordingly, with regard to the letting of a golf course, the Court has stated that since the activity of running a golf course entails not only the passive activity of making the course available but also a large number of commercial activities, such as supervision, management and continuing maintenance by the service-provider and the provision of other facilities, letting out a golf course cannot, in the absence of quite exceptional circumstances, constitute the main service supplied (the judgment in Stockholm Lindöpark , EU:C:2001:34, paragraph 26).
30. As regards, first, supervision, namely the rights of access to the sporting facilities and the control of that access conferred on the corporation, it is true that those rights cannot, in themselves, preclude the classification of the transaction at issue in the main proceedings as a letting within the meaning of Article 13B(b) of the Sixth Directive. Such rights may be justified in order to ensure that the use of those facilities by the lessees is not disturbed by third parties. The Court has previously stated that the presence of restrictions on the right to occupy the premises let does not prevent that occupation being exclusive as regards all other persons not permitted by law or by the contract to exercise a right over the property which is the subject of the letting contract (judgment in Temco Europe , C‑284/03, EU:C:2004:730, paragraph 25).
33. It must therefore be held that the facilities required for that purpose are, by means of the offered services of repair and upgrading, made available to RFCT in a condition which permits their use for the agreed purposes and that the provision of access to those facilities for that specific end constitutes the supply which is characteristic of the transaction at issue in the main proceedings (see inter alia, by analogy, the judgments in Part Service , C‑425/06, EU:C:2008:108, paragraphs 51 and 52; Field Fisher Waterhouse , C‑392/11, EU:C:2012:597, paragraph 23; and RR Donnelley Global Turnkey Solutions Poland , C‑155/12, EU:C:2013:434, paragraph 22).
36. As regards, last, the length of the period of enjoyment of the property concerned, which is an essential element of a lease, it must be recalled, first, that the Court has previously had occasion to hold that, as regards a golf course, the period may be restricted (judgment in Stockholm Lindöpark , EU:C:2001:34, paragraph 27).
37. Second, in accordance with the case-law, that enjoyment must not, as a general rule, be occasional and temporary (see, to that effect, the judgment in Leichenich , C‑532/11, EU:C:2012:720, paragraph 24).