DTZ Zadelhoff vof v Staatssecretaris van Financiën.
Date: 2012-07-05
19. It must be borne in mind, first, that, in accordance with the Court’s case-law, the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, in particular, Case C-349/96 CPP [1999] ECR I-973, paragraph 15, and Case C-540/09 Skandinaviska Enskilda Banken  [2011] ECR I-1509, paragraph 19 and the case-law cited).
20. It is also established case-law that the terms used to specify those exemptions are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (Case C-8/01 Taksatorringen [2003] ECR I-13711, paragraph 36; Case C-472/03 Arthur Andersen [2005] ECR I-1719, paragraph 24; and Case C-453/05 Ludwig [2007] ECR I-5083, paragraph 21).
21. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by the exemptions provided for in Article 13 of the Sixth Directive and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see, to that effect, Case C-445/05 Haderer  [2007] ECR I-4841, paragraph 18, and Case C-461/08 Don Bosco Onroerend Goed  [2009] ECR I-11079, paragraph 25.
22. With regard in particular to the scope of Article 13B(d)(5) of the Sixth Directive, the Court has held that transactions in shares and other securities are transactions on the market in marketable securities and that trade in securities involves acts which alter the legal and financial situation as between the parties (see, to that effect, Case C-2/95 SDC [1997] ECR I-3017, paragraphs 72 and 73, and Case C-29/08 SKF  [2009] ECR I-10413, paragraph 48).
23. The words ‘transactions … in securities’ within the meaning of Article 13B(d)(5) of the Sixth Directive refer, therefore, to transactions which are liable to create, alter or extinguish parties’ rights and obligations in respect of securities (see, in particular, Case C-235/00 CSC Financial Services  [2001] ECR I-10237, paragraph 33, and SKF , paragraph 48).
25. The fact that, when it instructed DTZ Zadelhoff to find prospective purchasers for the Soetelieve office complex, Stienstra failed to indicate whether it was the ownership of the complex or the ow nership of the shares in De Herven which was to be transferred to the purchasers is irrelevant. It is clear from the Court’s case-law that it is necessary, in accordance with the VAT system’s objectives of ensuring legal certainty and facilitating application of the tax, to have regard, save in exceptional cases, to the objective character of the transaction in question (see, to that effect, Case C-4/94 BLP Group  [1995] ECR I-983, paragraph 24, and SKF , paragraph 47). Thus, irrespective of any original intention on the part of Stienstra, the transaction which ultimately took place was, from an objective standpoint, a transaction in shares and must therefore, subject to any exceptions, be regarded as such.
26. Second, with regard in particular to whether the services provided by DTZ Zadelhoff at issue in the main proceedings are covered by the word ‘negotiation’ in Article 13B(d)(5) of the Sixth Directive, it should be noted that the Court has already held that it is clear from that provision that the words ‘including negotiation’ are not intended to define the principal object of the exemption laid down in the provision, but to extend the scope of the exemption to negotiation ( CSC Financial Services , paragraph 38).
27. Accordingly, it is not necessary to consider the precise meaning of the word ‘negotiation’, which also appears in other provisions of the Sixth Directive, including Article 13B(d)(1) to (4), in order to hold that, in the context of Article 13B(d)(5), it refers to the activity of an intermediary who does not occupy the position of any party to a contract relating to a financial product, and whose activity amounts to something other than the provision of contractual services typically undertaken by the parties to such contracts. Negotiation is a service rendered to, and remunerated by, a contractual party as a distinct act of mediation. It may consist, amongst other things, in pointing out suitable opportunities for the conclusion of such a contract, making contact with another party or negotiating, in the name of and on behalf of a client, the detail of the payments to be made by either side. The purpose of negotiation is therefore to do all that is necessary in order for two parties to enter into a contract, without the negotiator having any interest of his own in the terms of the contract ( CSC Financial Services , paragraph 39).
31. Article 5(3)(c) of the Sixth Directive provides that Member States may consider to be tangible property, inter alia, shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property or part thereof.
34. According to the Court’s case-law, 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 (Case C-326/99 ‘Goed Wonen’  [2001] ECR I-6831, paragraph 34).
40. It should be recalled that, according to the Court’s case-law, while, admittedly, it is true that the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly, since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see, inter alia, Case C-305/01 MKG-Kraftfahrzeuge-Factoring [2003] ECR I-6729, paragraph 63, and Case C-455/05 Velvet & Steel Immobilien [2007] ECR I-3225, paragraph 14), a strict interpretation cannot nevertheless restrict an exemption in a manner which is not justified by the wording of the provision in question. Such an approach would be contrary to the VAT system’s objectives of ensuring, inter alia, legal certainty (see, to that effect, SKF , paragraphs 46 and 47).
42. The answer to Questions 1 and 2 is, therefore, that Article 13B(d)(5) of the Sixth Directive must be interpreted as meaning that the exemption from VAT in that provision covers transactions, such as those at issue in the main proceedings, which are designed to transfer shares in the companies concerned and have that effect but which, in the final analysis, concern immovable property held by those companies and the (indirect) transfer of that property. The exception to the exemption provided for in the second indent of that provision is not applicable if the Member State has not availed itself of the possibility provided by Article 5(3)(c) of the Sixth Directive of considering shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property to be tangible property.
Question 3