Judgment of the Court (Second Chamber) of 13 June 2019.
IO v Inspecteur van de rijksbelastingdienst.
Request for a preliminary ruling from the Gerechtshof 's-Hertogenbosch.
Request for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Articles 9 and 10 — Taxable person — Economic activity carried out ‘independently’ — Definition — Activity as a member of the Supervisory Board of a foundation.
Case C-420/18. (2019)
Language: English

IO is a member of the Supervisory Board of a foundation whose main activity is to offer accommodation on a long-term basis to persons in need.
The articles of association of that foundation stipulate that that Supervisory Board is composed of a minimum of 5 and a maximum of 10 members who are appointed for a term of office of four years. A person who has concluded an employment contract with the foundation cannot be a member of the Supervisory Board. The members of that Supervisory Board may be suspended or removed only on account of negligence in the performance of their duties or on other serious grounds, by decision of the Supervisory Board itself, adopted by a three-quarters majority of the votes cast consisting of at least three quarters of its members, excluding the member or members challenged.
The powers of the Supervisory Board of that foundation include, in particular, the appointment, suspension and removal of members of the governing body, determining their working conditions, the suspension of enforcement of that body’s decisions, offering advice to that body, approving the annual accounts, the appointment, suspension and removal of members of the Supervisory Board and determining the fixed remuneration of those members.
Although the foundation concerned is represented judicially and extra judicially by its governing body, it is represented jointly, in the event of a conflict of interest between the governing body or a member thereof and that foundation, by the President and one or more members of the Supervisory Board. Moreover, if there is a failure of all of the members of the governing body, the Supervisory Board of the foundation will manage it until a new governing body is appointed.
With regard to the tasks of the Supervisory Board, Article 18 of the articles of association of the foundation concerned provide:
‘1.   The Supervisory Board has the task of monitoring the governing body’s strategy and the general course of business within the foundation and the undertaking related to it. The members of the Supervisory Board shall perform their duties without being given a mandate from the person who proposed them and independently of the special interests involved in the undertaking. It shall provide advice to the governing body. In the performance of their duties, the members of the Supervisory Board shall focus on the interests of the foundation and the undertaking related to it.
2.   The Supervisory Board is not obliged to justify its actions before the governing body.
3.   The Supervisory Board shall be held accountable for its external actions by reporting on its activities in the annual report.
4.   The Supervisory Board shall determine its working arrangements in a regulation which cannot contain provisions which are unlawful or contrary to these articles of association.’
For his activities as a member of the Supervisory Board of the foundation concerned, IO receives a gross remuneration of EUR 14912 per year which is subject to a wage-based levy. That remuneration was determined by that Supervisory Board on the basis of the rules laid down in the Wet Normering Bezoldiging topfunctionarissen publieke en semipublieke sector (Law on the standardisation of the remuneration of senior officials in the public and semi-public sector) and is not dependent on the participation of the person concerned in meetings or the hours actually worked.
IO is also employed as a local civil servant. However, his role as a member of that Supervisory Board in no way concerns the municipality which employs him and therefore there is no question of the existence of possible conflicts of interest.

Legal relationship diagram (Graphviz):
digraph {
    rankdir=LR;
    node [shape=box];
    
   "The articles of association of the foundation"[shape=trapezium];
   "Supervisory Board"[shape=doubleoctagon];
   "IO"[shape=doubleoctagon];
   "Local civil government"[shape=doubleoctagon];
    
   "The articles of association of the foundation"->"Supervisory Board";
   "Supervisory Board"->"A minimum of 5 and a maximum of 10 members who are appointed for a term of office of four years."[dir=none];
   "Supervisory Board"->"IO"[label="A gross remuneration of EUR 14912 per year"];
   "IO"->"Member of the Supervisory Board of a foundation."[dir=none];
   "Local civil government"->"IO"[label="Employment"];
    
}