Commission of the European Communities v Kingdom of the Netherlands.
Date: 1987-03-26
6 IN DETERMINING WHETHER NOTARIES AND BAILIFFS IN THE NETHERLANDS SHOULD BE SUBJECT TO VAT IN RESPECT OF THE OFFICIAL SERVICES WHICH THEY PERFORM FOR REMUNERATION, IT SHOULD BE BORNE IN MIND THAT, BY INCLUDING AMONGST THE TAXABLE TRANSACTIONS DEFINED IN ARTICLE 2 NOT ONLY THE IMPORTATION OF GOODS BUT ALSO THE SUPPLY OF GOODS OR SERVICES EFFECTED FOR CONSIDERATION WITHIN THE TERRITORY OF A COUNTRY AND BY DEFINING A "TAXABLE PERSON" IN ARTICLE 4 ( 1 ) AS ANY PERSON WHO INDEPENDENTLY CARRIES OUT AN ECONOMIC ACTIVITY, WHATEVER THE PURPOSE OR RESULTS OF THAT ACTIVITY, THE SIXTH DIRECTIVE ATTRIBUTES TO VAT A VERY WIDE SCOPE .
7 "ECONOMIC ACTIVITIES" ARE DEFINED IN ARTICLE 4 ( 2 ) AS ALL ACTIVITIES OF PRODUCERS, TRADERS AND PERSONS SUPPLYING SERVICES, INCLUDING INTER ALIA THE ACTIVITIES OF THE PROFESSIONS .
8 THOSE DEFINITIONS SHOW THAT THE SCOPE OF THE TERM "ECONOMIC ACTIVITIES" IS VERY WIDE, INASMUCH AS IT COVERS ALL THE SERVICES PROVIDED BY THE LIBERAL PROFESSIONS, AND THAT THE TERM IS OBJECTIVE IN CHARACTER, IN THE SENSE THAT THE ACTIVITY IS CONSIDERED PER SE AND WITHOUT REGARD TO ITS PURPOSE OR RESULTS .
9 IN VIEW OF THE WIDE DEFINITION OF THE TERM "ECONOMIC ACTIVITIES", ENCOMPASSING ALL THE ACTIVITIES OF THE PROFESSIONS WITHOUT ANY RESERVATION IN RESPECT OF PROFESSIONS REGULATED BY STATUTE, IT MUST BE CONCLUDED THAT, IN SO FAR AS NOTARIES AND BAILIFFS IN THE NETHERLANDS PROVIDE SERVICES TO PRIVATE INDIVIDUALS ON A PERMANENT BASIS AND IN RETURN FOR REMUNERATION, THEY CARRY OUT AN ECONOMIC ACTIVITY WITHIN THE MEANING OF THE SIXTH DIRECTIVE .
10 IN VIEW OF THE NEUTRAL CHARACTER OF THE TERM "ECONOMIC ACTIVITIES", THE FACT THAT THE ACTIVITIES OF NOTARIES AND BAILIFFS CONSIST IN THE PERFORMANCE OF DUTIES WHICH ARE CONFERRED AND REGULATED BY LAW IN THE PUBLIC INTEREST IS IRRELEVANT . INDEED, ARTICLE 6 OF THE SIXTH DIRECTIVE EXPRESSLY PROVIDES THAT CERTAIN ACTIVITIES CARRIED ON IN PURSUANCE OF THE LAW SHALL BE SUBJECT TO THE SYSTEM OF VAT .
14 ARTICLE 4 ( 4 ) EXCLUDES ALL PERSONS WHO ARE BOUND TO AN EMPLOYER BY A CONTRACT OF EMPLOYMENT OR BY ANY OTHER LEGAL TIES CREATING THE RELATIONSHIP OF EMPLOYER AND EMPLOYEE AS REGARDS WORKING CONDITIONS, REMUNERATION AND EMPLOYER' S LIABILITY . NOTARIES AND BAILIFFS, HOWEVER, ARE NOT BOUND TO THE PUBLIC AUTHORITIES AS EMPLOYEES SINCE THEY ARE NOT INTEGRATED INTO THE PUBLIC ADMINISTRATION . THEY CARRY OUT THEIR ACTIVITIES ON THEIR OWN ACCOUNT AND ON THEIR OWN RESPONSIBILITY; THEY ARE FREE, SUBJECT TO CERTAIN LIMITS IMPOSED BY STATUTE, TO ARRANGE HOW THEY SHALL PERFORM THEIR WORK AND THEY THEMSELVES RECEIVE THE EMOLUMENTS WHICH MAKE UP THEIR INCOME . THE FACT THAT THEY ARE SUBJECT TO DISCIPLINARY CONTROL UNDER THE SUPERVISION OF THE PUBLIC AUTHORITIES ( A SITUATION TO BE FOUND IN OTHER REGULATED PROFESSIONS ) AND THE FACT THAT THEIR REMUNERATION IS DETERMINED BY STATUTE ARE NOT SUFFICIENT GROUNDS FOR REGARDING THEM AS PERSONS WHO ARE BOUND BY LEGAL TIES TO AN EMPLOYER WITHIN THE MEANING OF ARTICLE 4 ( 4 ).
15 IT MUST THEREFORE BE CONCLUDED THAT, INASMUCH AS THEY CARRY OUT INDEPENDENTLY ECONOMIC ACTIVITIES CONSISTING IN THE SUPPLY OF SERVICES TO THIRD PARTIES, IN RETURN FOR WHICH THEY RECEIVE FEES FOR THEIR OWN ACCOUNT, NOTARIES AND BAILIFFS IN THE NETHERLANDS MUST BE REGARDED AS TAXABLE PERSONS FOR VAT PURPOSES, WITHIN THE MEANING OF ARTICLE 4 ( 1 ) AND ( 2 ) OF THE SIXTH DIRECTIVE .
EXEMPTION FROM VAT FOR BODIES GOVERNED BY PUBLIC LAW
18 IN ORDER TO DETERMINE WHETHER NOTARIES AND BAILIFFS IN THE NETHERLANDS SHOULD, AS FAR AS THE PROVISION OF THEIR OFFICIAL SERVICES IS CONCERNED, BE COVERED BY THE EXEMPTION SET OUT IN ARTICLE 4 ( 5 ) OF THE SIXTH DIRECTIVE, THAT EXEMPTION SHOULD BE PLACED IN THE GENERAL CONTEXT OF THE COMMON SYSTEM OF VAT INTRODUCED BY THAT DIRECTIVE .
19 AS HAS BEEN STATED IN CONNECTION WITH THE EXAMINATION OF THE TERM "ECONOMIC ACTIVITIES", THE SIXTH DIRECTIVE IS CHARACTERIZED BY ITS GENERAL SCOPE AND BY THE FACT THAT ALL EXEMPTIONS MUST BE EXPRESSLY PROVIDED FOR AND PRECISELY DEFINED .
21 IT IS CLEAR FROM THAT PROVISION, WHEN EXAMINED IN THE LIGHT OF THE AIMS OF THE DIRECTIVE, THAT TWO CONDITIONS MUST BE FULFILLED IN ORDER FOR THE EXEMPTION TO APPLY; THE ACTIVITIES MUST BE CARRIED OUT BY A BODY GOVERNED BY PUBLIC LAW AND THEY MUST BE CARRIED OUT BY THAT BODY ACTING AS A PUBLIC AUTHORITY . THIS MEANS THAT BODIES GOVERNED BY PUBLIC LAW ARE NOT AUTOMATICALLY EXEMPTED IN RESPECT OF ALL THE ACTIVITIES IN WHICH THEY ENGAGE BUT ONLY IN RESPECT OF THOSE WHICH FORM PART OF THEIR SPECIFIC DUTIES AS PUBLIC AUTHORITIES ( SEE THE JUDGMENT OF 11 JULY 1985 IN CASE 107/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY (( 1985 )) ECR 2663 ) AND, SECONDLY, THAT AN ACTIVITY CARRIED ON BY A PRIVATE INDIVIDUAL IS NOT EXEMPTED FROM VAT MERELY BECAUSE IT CONSISTS IN CARRYING OUT ACTS FALLING WITHIN THE PREROGATIVES OF THE PUBLIC AUTHORITY .
22 CONSEQUENTLY, EVEN ASSUMING THAT IN PERFORMING THEIR OFFICIAL SERVICES NOTARIES AND BAILIFFS EXERCISE THE POWERS OF A PUBLIC AUTHORITY BY VIRTUE OF THEIR APPOINTMENT TO PUBLIC OFFICE, IT DOES NOT FOLLOW THAT THEY MAY ENJOY THE EXEMPTION PROVIDED FOR IN ARTICLE 4 ( 5 ). THE REASON IS THAT THEY PURSUE THOSE ACTIVITIES, NOT IN THE FORM OF A BODY GOVERNED BY PUBLIC LAW, SINCE THEY ARE NOT PART OF THE PUBLIC ADMINISTRATION, BUT IN THE FORM OF AN INDEPENDENT ECONOMIC ACTIVITY CARRIED OUT IN THE EXERCISE OF A LIBERAL PROFESSION .