IO v Inspecteur van de rijksbelastingdienst.
Date: 2019-06-13
In order to answer that question, it should be recalled that taxable person is to mean any person who, independently, carries out one of the economic activities referred to in the second subparagraph of Article 9(1) of the VAT Directive, and in particular any activity supplying a service. The terms used in that provision give to the notion of ‘taxable person’ a broad definition focused on independence in the pursuit of an economic activity to the effect that all persons who, in an objective manner, satisfy the criteria set out in that provision, must be regarded as being taxable persons for the purposes of VAT (judgment of 12 October 2016, Nigl and Others, C‑340/15, EU:C:2016:764, paragraph 27 and the case-law cited).
In the present case, the parties to the main proceedings have not disputed that an activity such as that at issue must be classified as ‘economic’ since it is permanent and is carried out in return for remuneration which is received by the person carrying out the activity (judgment of 13 June 2018, Polfarmex, C‑421/17, EU:C:2018:432, paragraph 38 and the case-law cited).
To carry out his activities as a member of the Supervisory Board of the foundation concerned, the applicant in the main proceedings receives a gross remuneration of EUR 14 912 per year. In that regard, the fact that that remuneration is determined not on the basis of individualised services but at a flat rate and annually is irrelevant (see, to that effect, judgment of 22 February 2018, Nagyszénás Településszolgáltatási Nonprofit Kft., C‑182/17, EU:C:2018:91, paragraph 37 and the case-law cited).
Moreover, since that remuneration has been determined in the light of the rules laid down in the Law on the standardisation of the remuneration of senior officials in the public and semi-public sector, the circumstances in which the applicant in the main proceedings performs the service in question correspond to those in which that type of service is usually performed (see, to that effect, judgment of 12 May 2016, Geemente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraphs 29 and 30).
Furthermore, as is clear from the articles of association of the foundation concerned, the members of the Supervisory Board of that foundation are appointed for a term of office of four years and, in view of that duration, it must be considered that that remuneration is received on a continuing basis (see, to that effect, judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 33).
Although it is true that the Court has held, with regard to the tax treatment of the sale of land included in private assets, that the mere exercise of the right of ownership by its holder cannot, in itself, be regarded as constituting an economic activity, but that is not the case where the party concerned takes active steps to market property (see, to that effect, judgments of 15 September 2011, Słaby and Others, C‑180/10 and C‑181/10, EU:C:2011:589, paragraphs 36 to 39, and of 9 July 2015, Trgovina Prizma, C‑331/14, EU:C:2015:456, paragraphs 23 and 24, and, with regard to active steps in forestry management, judgment of 19 July 2012, Rēdlihs, C‑263/11, EU:C:2012:497, paragraph 36), it should be noted that not only is that case-law specific to the tax treatment of the sale of land included in private assets, but that, in any event, it cannot be inferred from it that the fact that such steps are taken is a condition for an activity to be able to be regarded as being carried out for the purpose of obtaining income therefrom on a continuing basis and may therefore be able to be classified as ‘economic’.
Moreover, in so far as the Swedish Government also submits, in that context, that the aim of the activity consisting in the performance of one or a few terms of office as a member of a Supervisory Board is not to sell the provision of services on a permanent basis, it should be recalled that, according to the settled case-law of the Court, the term ‘economic activity’ is objective in character, in the sense that the activity is considered per se and without regard to its purpose or results (judgment of 5 July 2018, Marle Participations, C‑320/17, EU:C:2018:537, paragraph 22 and the case-law cited).
In that regard, it is apparent from the case-law of the Court on Article 9 of the VAT Directive that, in order to establish whether a person independently carries out an economic activity, it is necessary to ascertain whether there is an employer-employee relationship in the pursuit of that activity (see, to that effect, judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraphs 33 and 36 and the case-law cited).
In order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his activities in his own name, on his own behalf and under his own responsibility, and whether he bears the economic risk associated with carrying out those activities. In order to find that the activities at issue are independent, the Court has thus taken into account the complete absence of any employer-employee relationship, as well as the fact that person concerned acts on his own account and under his own responsibility, is free to arrange how he performs his work and himself receives the emoluments which make up his income (judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 34 and the case-law cited).
That said, according to the referring court, in the performance of his duties as a member of the Supervisory Board of the foundation concerned, the applicant in the main proceedings does not act in his own name, on his own behalf or under his own responsibility. As is clear from the articles of association of that foundation, the activity as a member of the Supervisory Board includes, in some cases, representing the foundation legally, which entails the power to bind that foundation legally. Moreover, the referring court states that the members of that Supervisory Board cannot exercise individually the powers conferred on that board and that they act on behalf of and under the responsibility of that board. It therefore appears that the members of the Supervisory Board of the foundation concerned do not individually bear the liability arising from actions taken by that board in connection with the legal representation of that foundation, or the liability for any damage caused to third parties in the performance of their duties and that, accordingly, they do not act under their own responsibility (see, by analogy, judgment of 25 July 1991, Ayuntamiento de Sevilla, C‑202/90, EU:C:1991:332, paragraph 15).
Furthermore, the position of a member of a Supervisory Board, such as the applicant in the main proceedings, unlike that of an entrepreneur, is characterised by the absence of any economic risk arising from the activity carried out. According to the referring court, that member receives a fixed remuneration which is not dependent on his participation in meetings or hours actually worked. Thus, unlike an entrepreneur, he does not have a significant influence over his revenue or his expenditure (see, a contrario, judgment of 12 November 2009, Commission v Spain, C‑154/08, not published, EU:C:2009:695, paragraph 107 and the case-law cited). In addition, it appears that negligence on the part of the member of that Supervisory Board, in the performance of his duties, is not likely to have a direct effect on that member’s remuneration, since, in accordance with the articles of association of the foundation concerned, such negligence may lead to the removal of that member only after a specific procedure has been followed.
A person who does not bear an economic risk of that kind cannot be considered to carry out an economic activity independently, within the meaning of Article 9 of the VAT Directive (see, in that regard, judgments of 23 March 2006, FCE Bank, C‑210/04, EU:C:2006:196, paragraphs 35 to 37; of 18 October 2007, van der Steen, C‑355/06, EU:C:2007:615, paragraphs 24 to 26; and of 24 January 2019, Morgan Stanley & Co International, C‑165/17, EU:C:2019:58, paragraph 35 and the case-law cited).