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Corte di giustizia UEsentenza

Corte di giustizia UE/2013

ECLI:EU:C:2013:267
Testo integrale del provvedimento

Testo integrale del provvedimento

62011CJ0086_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] C‑86/11,

ACTION for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, brought on 24 February 2011, [OSCURATO:PERSONA], represented by R. Lyal, acting as Agent, with an address for service in [OSCURATO:PERSONA], applicant, v [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], represented by S. Hathaway, acting as Agent, and M. Hall QC, defendant, supported by: [OSCURATO:PERSONA], represented by M. Smolek and T. Müller, acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of [OSCURATO:PERSONA], represented initially by C. Vang, and subsequently by

V. [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], with an address for service in [OSCURATO:PERSONA], [OSCURATO:PERSONA], represented by D. O’Hagan, acting as Agent, assisted by G. Clohessy, SC, and N. Travers, BL, with an address for service in [OSCURATO:PERSONA], [OSCURATO:PERSONA] of Finland, represented by H. Leppo and S. Hartikainen, acting as [OSCURATO:PERSONA], interveners,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of L. [OSCURATO:PERSONA], acting as President of the [OSCURATO:PERSONA], J.‑C.

Bonichot, C. Toader, A. Prechal and E. Jarašiūnas (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Jääskinen, Registrar: C. Strömholm, Administrator, having regard to the written procedure and further to the hearing on 6 September 2012, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following

[OSCURATO:PERSONA]

1. By its application, the [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to declare that, by permitting non-taxable persons to be members of a group of persons regarded as a single taxable person for purposes of value added tax (a ‘VAT group’ and ‘VAT’ respectively), the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] has failed to fulfil its obligations under Articles 9 and 11 of [OSCURATO:PERSONA] 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT [OSCURATO:PERSONA]’).

Legal context [OSCURATO:PERSONA] law

2. Articles 9 to 13 of the VAT [OSCURATO:PERSONA] are included in Title III (entitled ‘Taxable persons’) of that directive.

3. [OSCURATO:PERSONA] 9 of that directive provides: ‘1.

“Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”.

The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity.

2. In addition to the persons referred to in paragraph 1, any person who, on an occasional basis, supplies a new means of transport, which is dispatched or transported to the customer by the vendor or the customer, or on behalf of the vendor or the customer, to a destination outside the territory of a [OSCURATO:PERSONA] but within the territory of the Community, shall be regarded as a taxable person.’

4. [OSCURATO:PERSONA] 10 of the VAT [OSCURATO:PERSONA] states that the condition that the economic activity be conducted independently is to exclude employed and other persons from VAT in so far as they 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 the employer’s liability.

5. [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] provides: ‘After consulting the advisory committee on [VAT], each [OSCURATO:PERSONA] may regard as a single taxable person any persons established in the territory of that [OSCURATO:PERSONA] who, while legally independent, are closely bound to one another by financial, economic and organisational links.

A [OSCURATO:PERSONA] exercising the option provided for in the first paragraph may adopt any measures needed to prevent tax evasion or avoidance through the use of this provision.’

6. [OSCURATO:PERSONA] 12 of the VAT [OSCURATO:PERSONA] provides that [OSCURATO:PERSONA] may regard as a taxable person anyone who carries out, on an occasional basis, a transaction relating to the activities referred to in the second subparagraph of [OSCURATO:PERSONA] 9(1) of that directive, and in particular the supply of a building or of building land.

7. [OSCURATO:PERSONA] 13 of the VAT [OSCURATO:PERSONA], regional and local government authorities and other bodies governed by public law are not, as a general rule, to be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities.

Law of the [OSCURATO:PERSONA]

8. Subsection (1) of section 43 of the [OSCURATO:PERSONA] 1994, in the version applicable to the present case, entitled ‘Groups of companies’, provides: ‘Where under sections 43A to 43D any bodies corporate are treated as members of a group, any business carried on by a member of the group shall be treated as carried on by the representative member …’.

9. Section 43A of that Act, entitled ‘Groups: eligibility’, is worded as follows: ‘(1) Two or more bodies corporate are eligible to be treated as members of a group if each is established or has a fixed establishment in the [OSCURATO:PERSONA] and – (a) one of them controls each of the others, (b) one person (whether a body corporate or an individual) controls all of them, or (c) two or more individuals carrying on a business in partnership control all of them. (2) For the purposes of this section a body corporate shall be taken to control another body corporate if it is empowered by statute to control that body’s activities or if it is that body’s holding company within the meaning of section 736 of the [OSCURATO:PERSONA] 1985 [1985 c. 6]. (3) For the purposes of this section an individual or individuals shall be taken to control a body corporate if he or they, were he or they a company, would be that body’s holding company within the meaning of that section.’ The pre-litigation procedure and the proceedings before the [OSCURATO:PERSONA]

10. On 23 September 2008, the [OSCURATO:PERSONA] sent a letter of formal notice to the [OSCURATO:PERSONA] drawing the attention of that [OSCURATO:PERSONA] to the possible incompatibility with Articles 9 and 11 of the VAT [OSCURATO:PERSONA] of its national legislation permitting the inclusion of non-taxable persons in a VAT group.

In accordance with [OSCURATO:PERSONA] 226 EC, the [OSCURATO:PERSONA] invited the [OSCURATO:PERSONA] to submit its observations.

11. In their letter in reply of 18 November 2008, the [OSCURATO:PERSONA] authorities disputed the [OSCURATO:PERSONA] interpretation of the VAT [OSCURATO:PERSONA].

12. As the [OSCURATO:PERSONA] was not satisfied with that reply, on 20 November 2009 it issued a reasoned opinion, to which the [OSCURATO:PERSONA] replied by letter of 18 January 2010 maintaining its position.

13. In those circumstances the [OSCURATO:PERSONA] decided to bring the present action.

14. By order of the President of the [OSCURATO:PERSONA] of 8 July 2011, the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland were granted leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA].

The action Arguments of the parties

15. In support of its action, the [OSCURATO:PERSONA] submits that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] must be interpreted as meaning that non-taxable persons for VAT purposes cannot be included in a VAT group.

16. It submits that the word ‘persons’ in [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] refers only to persons who satisfy the necessary conditions to be regarded as taxable persons.

It points out, in that regard, that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] is included in Title III of that directive (entitled ‘Taxable persons’) and that it does not contain a derogation from [OSCURATO:PERSONA] 9 thereof, which defines a ‘taxable person’ as ‘any person who, independently, carries out … any economic activity’.

17. [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] contends, constitutes an exception to the general rule that each taxable person is to be treated as a separate entity for the application of the VAT rules.

That provision must therefore be interpreted in such a way as not to diverge any more than necessary from the general rule.

Although that provision does not expressly provide that the members of a VAT group must be taxable persons, the fact that the persons included in such a group are to be treated as ‘a single’ taxable person nevertheless implies that each member of that group must itself be a taxable person.

Likewise, the concept of ‘grouping’ implies that the persons concerned belong to the same category for the purposes of the common system of VAT.

The word ‘persons’ was therefore used only in order to avoid repetition of the term ‘taxable person’.

18. Furthermore, according to the [OSCURATO:PERSONA], if the word ‘persons’ were to be understood as referring to all persons without restriction, then a VAT group could be composed solely of non-taxable persons, something which would be contrary to the VAT [OSCURATO:PERSONA].

19. [OSCURATO:PERSONA] submits that its interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] is, moreover, consistent with the objective of that article, which is, as is apparent from the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] proposal [COM(73) 950 final] which led to the adoption of [OSCURATO:PERSONA] 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the [OSCURATO:PERSONA] relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) (‘the [OSCURATO:PERSONA]’), to simplify administration for the taxpayer and the tax authorities and to combat abuse by preventing persons which are not truly independent business units from being treated as separate taxable persons.

The inclusion of non-taxable persons in a VAT group would, the [OSCURATO:PERSONA] argues, neither simplify administration nor prevent abuse.

20. Neither the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] nor the preparatory documents relating to that directive state that that provision was intended to alter the concept of a ‘taxable person’ or to extend the rights and obligations of taxable persons to others.

That would, however, be the result, according to the [OSCURATO:PERSONA], if non-taxable persons were able to join a VAT group.

In particular, as acquisitions that take place within a VAT group are regarded as non-existent for VAT purposes, that would permit the supply of goods and the provision of services to non-taxable persons without any charge to VAT, and would allow the group in question to recover input VAT in respect of supplies made to such persons, which would clearly be contrary to the common system of VAT.

21. It is therefore necessary, according to the [OSCURATO:PERSONA], not to adhere to a literal interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], but to read it in the light of its immediate context, namely Title III of the VAT [OSCURATO:PERSONA], and, more generally, in the light of the scheme of that directive.

22. Contrary to what the [OSCURATO:PERSONA] maintains, the principles of fiscal neutrality and of equal treatment require the exclusion of non-taxable persons from VAT groups because the question as to whether or not an entity engages in economic activities is fundamental to the common system of VAT and is not arbitrary.

23. Although the [OSCURATO:PERSONA] has not hitherto had occasion to rule on the issue raised by the present case, indirect support for the [OSCURATO:PERSONA] position is, in the latter’s view, to be found in paragraph 19 of the judgment in [OSCURATO:PERSONA] C‑162/07 Ampliscientifica and Amplifin [2008] ECR I‑4019, and in the Opinion of [OSCURATO:PERSONA] in the case which gave rise to the judgment in [OSCURATO:PERSONA] C‑60/90 [OSCURATO:PERSONA] [1991] ECR I‑3111.

24. [OSCURATO:PERSONA] contends that the action should be dismissed.

It states, first of all, that the provisions of its national legislation were enacted pursuant to [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA], now [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], and do not make the inclusion of an entity in a VAT group dependent on its status as a taxable person within the meaning of [OSCURATO:PERSONA] 9 of the VAT directive.

25. Since the [OSCURATO:PERSONA] accepts that exempt or partially exempt traders may join fully taxable traders in a VAT group, it must also, according to that [OSCURATO:PERSONA], accept that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] contemplates the situation to which it objects, namely taxable persons extending their rights and obligations to non‑taxable persons.

It submits, in that regard, that that article permits [OSCURATO:PERSONA] merely to regard persons closely bound to one another by financial, economic and organisational links as a single taxable person.

26. So far as concerns the literal interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] takes the view that the words ‘any persons’ used in the [OSCURATO:PERSONA]‑language version of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] strongly imply that the reference is to persons in general, whether they are taxable or non-taxable.

Furthermore, if it had been the legislature’s intention to exclude non-taxable persons from VAT groups then different wording would have been used.

Moreover, the distinction made between ‘persons’ and ‘taxable persons’ is not unique to the [OSCURATO:PERSONA]-language version of that article, but appears in other language versions thereof.

27. The concept of grouping does not, in the view of the [OSCURATO:PERSONA], necessarily mean that all the members of the group are engaged in activities falling within the scope of the VAT [OSCURATO:PERSONA].

The member of a VAT group must simply be closely bound to one another by financial, economic and organisational links.

Little weight should be attached to the adjective ‘single’, which simply means that those who have grouped together are treated as a single entity for VAT purposes. [OSCURATO:PERSONA] concern that a VAT group could be composed solely of non‑taxable persons is unfounded.

There are no such groups in the [OSCURATO:PERSONA] and they would be devoid of any meaningful purpose.

28. As regards the objective of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] maintains that the objectives of simplifying administration and combating abuse can be met by allowing non-taxable persons to join a VAT group.

In particular, the inclusion within such a group of companies such as dormant companies or holding companies, which have the potential to engage in economic activities and may support activities elsewhere in the group, meets the objective of simplifying administration. [OSCURATO:PERSONA] approach ignores the [OSCURATO:PERSONA]’s case-law, which recognises that entities which merely have the potential to engage in economic activities, or which do so only intermittently, may nevertheless fall within the scope of VAT.

29. Lastly, the [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] position is not supported by the case-law to which it refers and takes the view that it would be contrary to the principles of fiscal neutrality and of equal treatment to permit some corporate groups to form a VAT group but not others, simply because they have different corporate structures.

That, it is argued, would encourage the artificial creation of minimal amounts of economic activity to justify the inclusion of non‑taxable persons within a VAT group.

30. Like the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland submit that the [OSCURATO:PERSONA] position is not supported by the wording and objectives of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the common system of VAT or the [OSCURATO:PERSONA]’s case-law.

Findings of the [OSCURATO:PERSONA]

31. It should be borne in mind at the outset that, in determining the scope of a provision of [OSCURATO:PERSONA] law, its wording, context and objectives must all be taken into account ([OSCURATO:PERSONA] C‑174/08 NCC [OSCURATO:PERSONA] [2009] ECR I‑10567, paragraph 23 and the case-law cited).

32. In the present case, it is apparent from the wording of the first paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] that that directive permits each [OSCURATO:PERSONA] to regard a number of persons as a single taxable person if those persons are established in the territory of that [OSCURATO:PERSONA] and if, although they are legally independent, they are closely bound to one another by financial, economic and organisational links.

The application of that article is not, according to its wording, made subject to other conditions, in particular to the condition that those persons could themselves, individually, have had the status of a taxable person within the meaning of [OSCURATO:PERSONA] 9(1) of the VAT [OSCURATO:PERSONA].

As it uses the word ‘persons’ and not the words ‘taxable persons’, the first paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] does not make a distinction between taxable persons and non-taxable persons (judgment of 9 April 2013 in [OSCURATO:PERSONA] C‑85/11 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2013] ECR I-0000, paragraph 36).

33. It must be pointed out that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] derives from the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA].

Whereas point 2 of Annex A to [OSCURATO:PERSONA] 67/228/EEC of 11 April 1967 on the harmonisation of legislation of [OSCURATO:PERSONA] concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, [OSCURATO:PERSONA] 1967, p. 16), which introduced the concept of a VAT group into [OSCURATO:PERSONA] law, permitted [OSCURATO:PERSONA] ‘not to consider as separate taxable persons, but as one single taxable person’, persons who are organically linked to one another by economic, financial or organisational relationships, the words ‘as separate taxable persons’ were abandoned in the drafting of the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA] ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 37).

34. Furthermore, although the wording of the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA] was repeated in similar terms in the majority of the language versions of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], in the [OSCURATO:PERSONA]-language version of that article the word ‘any’ was added, with the result that the relevant passage of that provision reads as follows: ‘each [OSCURATO:PERSONA] may regard as a single taxable person any persons established in the territory of that [OSCURATO:PERSONA]’ ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 38).

35. It is not apparent from those successive drafting amendments that the [OSCURATO:PERSONA] legislature intended, when adopting the [OSCURATO:PERSONA] and, subsequently, the VAT [OSCURATO:PERSONA], to preclude non-taxable persons from being capable of inclusion in a VAT group and that the word ‘persons’ was used instead of the words ‘taxable persons’ in order to avoid repetition.

The fact that other provisions of the VAT [OSCURATO:PERSONA], which do not come under Title III thereof dealing with the concept of a ‘taxable person’, use the term ‘persons’ to designate taxable persons cannot result in any different finding, as that term is used in a different context to that of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 39).

36. Furthermore, it must be pointed out that, contrary to what the [OSCURATO:PERSONA] argues, it cannot be inferred from the words ‘as a single taxable person’ that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] seeks solely to permit a number of taxable persons to be dealt with as a single entity, as those words relate, not to a condition for the application of that article, but to its outcome, which is that a number of persons are regarded as a single taxable person.

In addition, there is no basis in the wording of that article for the [OSCURATO:PERSONA] argument that it represents an exception to the general rule that each taxable person must be treated as a separate entity, with the result that that article is to be interpreted restrictively, or for the argument that the concept of grouping implies that all of the persons concerned belong to the same category, as the word ‘grouping’ does not appear in that article ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 40).

37. Consequently, it is not apparent from the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] that non-taxable persons cannot be included in a VAT group ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 41).

38. [OSCURATO:PERSONA], however, submits that, going beyond the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], its interpretation of that article must prevail in view of its context, its objectives and the case-law of the [OSCURATO:PERSONA].

It is for that reason necessary to examine whether the arguments put forward by the [OSCURATO:PERSONA] in support of that stance demonstrate that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] must be interpreted as meaning that non-taxable persons cannot be included in a VAT group.

39. It must be pointed out, firstly, that the case-law of the [OSCURATO:PERSONA] to which the [OSCURATO:PERSONA] refers as regards that issue cannot usefully be relied on in the present case since that issue is not the subject-matter of the abovementioned judgments in [OSCURATO:PERSONA] and Ampliscientifica and Amplifin ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 43).

40. As regards, secondly, the context of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], it is necessary to point out that [OSCURATO:PERSONA] 9(1) of that directive contains a general definition of the concept of a ‘taxable person’. [OSCURATO:PERSONA] 9(2) and Articles 10, 12 and 13 of that directive provide details in respect of that concept, either by including in it, or by permitting [OSCURATO:PERSONA] to include in it, persons who do not satisfy that general definition, such as persons who carry out certain transactions on an occasional basis, or by excluding other persons from it, such as employed persons or public authorities.

Consequently, it cannot be inferred from the scheme of Title III of the VAT [OSCURATO:PERSONA] that a person who does not satisfy that general definition is necessarily excluded from being one of the persons referred to in [OSCURATO:PERSONA] 11 thereof ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 44).

41. As regards the relationship, within Title III of the VAT [OSCURATO:PERSONA], between Articles 9(1) and 11 of that directive, it must be stated that a combined reading of those articles does not support the conclusion, drawn by the [OSCURATO:PERSONA], that the persons referred to in [OSCURATO:PERSONA] 11 must individually satisfy the general definition of a taxable person set out in [OSCURATO:PERSONA] 9(1) of that directive.

A comparison of those two provisions does not preclude the interpretation that, as submitted by the [OSCURATO:PERSONA] and the interveners, it is those persons, taken together and closely bound to one another by financial, economic and organisational links, who must collectively satisfy that definition ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 45).

42. Consequently, it is not possible to uphold the [OSCURATO:PERSONA] arguments that, having regard to the context of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], that article must be interpreted as meaning that non-taxable persons cannot be included in a VAT group ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 46).

43. As regards, thirdly, the objectives pursued by [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], it is apparent from the [OSCURATO:PERSONA] to the proposal which resulted in the adoption of the [OSCURATO:PERSONA] that, by adopting the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA], which was replaced by [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] legislature intended, in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, to ensure that [OSCURATO:PERSONA] would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 47).

44. It is not evident that the possibility for [OSCURATO:PERSONA] to regard as a single taxable person a group of persons including one or more persons who may not individually have the status of a taxable person runs counter to those objectives.

It is, on the contrary, conceivable that, as the [OSCURATO:PERSONA] and the interveners have submitted, the presence, within a VAT group, of such persons contributes to administrative simplification both for the group and for the tax authorities and makes it possible to avoid certain abuses, and that that presence may even be indispensable to those ends if it alone establishes the close financial, economic and organisational links which must exist between the persons constituting that group in order for it to be regarded as a single taxable person ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 48).

45. In addition, it must be pointed out that, if such a possibility might itself give rise to abuse, the second paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] permits [OSCURATO:PERSONA] to adopt any measures needed to prevent tax evasion or avoidance through the use of the first paragraph of [OSCURATO:PERSONA] 11 ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 49).

46. Consequently, the [OSCURATO:PERSONA] has not established that the objectives of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] militate in favour of an interpretation according to which non-taxable persons cannot be included in a tax group.

47. In view of all of the foregoing considerations, the [OSCURATO:PERSONA] action must be dismissed. Costs

48. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs.

In accordance with [OSCURATO:PERSONA] 140(1) of those Rules of Procedure, under which [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs, it must be held that the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland are to bear their own respective costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby:

1. Dismisses the action;

2. Orders the [OSCURATO:PERSONA] to pay the costs;

3. Orders the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland to bear their own respective costs.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62011CJ0086_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑86/11, ACTION for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, brought on 24 February 2011, [OSCURATO:PERSONA], represented by R. Lyal, acting as Agent, with an address for service in [OSCURATO:PERSONA], applicant, v [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], represented by S. Hathaway, acting as Agent, and M. Hall QC, defendant, supported by: [OSCURATO:PERSONA], represented by M. Smolek and T. Müller, acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of [OSCURATO:PERSONA], represented initially by C. Vang, and subsequently by V. [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], with an address for service in [OSCURATO:PERSONA], [OSCURATO:PERSONA], represented by D. O’Hagan, acting as Agent, assisted by G. Clohessy, SC, and N. Travers, BL, with an address for service in [OSCURATO:PERSONA], [OSCURATO:PERSONA] of Finland, represented by H. Leppo and S. Hartikainen, acting as [OSCURATO:PERSONA], interveners, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of L. [OSCURATO:PERSONA], acting as President of the [OSCURATO:PERSONA], J.‑C. Bonichot, C. Toader, A. Prechal and E. Jarašiūnas (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Jääskinen, Registrar: C. Strömholm, Administrator, having regard to the written procedure and further to the hearing on 6 September 2012, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1. By its application, the [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to declare that, by permitting non-taxable persons to be members of a group of persons regarded as a single taxable person for purposes of value added tax (a ‘VAT group’ and ‘VAT’ respectively), the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] has failed to fulfil its obligations under Articles 9 and 11 of [OSCURATO:PERSONA] 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT [OSCURATO:PERSONA]’). Legal context [OSCURATO:PERSONA] law 2. Articles 9 to 13 of the VAT [OSCURATO:PERSONA] are included in Title III (entitled ‘Taxable persons’) of that directive. 3. [OSCURATO:PERSONA] 9 of that directive provides: ‘1. “Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity. 2. In addition to the persons referred to in paragraph 1, any person who, on an occasional basis, supplies a new means of transport, which is dispatched or transported to the customer by the vendor or the customer, or on behalf of the vendor or the customer, to a destination outside the territory of a [OSCURATO:PERSONA] but within the territory of the Community, shall be regarded as a taxable person.’ 4. [OSCURATO:PERSONA] 10 of the VAT [OSCURATO:PERSONA] states that the condition that the economic activity be conducted independently is to exclude employed and other persons from VAT in so far as they 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 the employer’s liability. 5. [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] provides: ‘After consulting the advisory committee on [VAT], each [OSCURATO:PERSONA] may regard as a single taxable person any persons established in the territory of that [OSCURATO:PERSONA] who, while legally independent, are closely bound to one another by financial, economic and organisational links. A [OSCURATO:PERSONA] exercising the option provided for in the first paragraph may adopt any measures needed to prevent tax evasion or avoidance through the use of this provision.’ 6. [OSCURATO:PERSONA] 12 of the VAT [OSCURATO:PERSONA] provides that [OSCURATO:PERSONA] may regard as a taxable person anyone who carries out, on an occasional basis, a transaction relating to the activities referred to in the second subparagraph of [OSCURATO:PERSONA] 9(1) of that directive, and in particular the supply of a building or of building land. 7. [OSCURATO:PERSONA] 13 of the VAT [OSCURATO:PERSONA], regional and local government authorities and other bodies governed by public law are not, as a general rule, to be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities. Law of the [OSCURATO:PERSONA] 8. Subsection (1) of section 43 of the [OSCURATO:PERSONA] 1994, in the version applicable to the present case, entitled ‘Groups of companies’, provides: ‘Where under sections 43A to 43D any bodies corporate are treated as members of a group, any business carried on by a member of the group shall be treated as carried on by the representative member …’. 9. Section 43A of that Act, entitled ‘Groups: eligibility’, is worded as follows: ‘(1) Two or more bodies corporate are eligible to be treated as members of a group if each is established or has a fixed establishment in the [OSCURATO:PERSONA] and – (a) one of them controls each of the others, (b) one person (whether a body corporate or an individual) controls all of them, or (c) two or more individuals carrying on a business in partnership control all of them. (2) For the purposes of this section a body corporate shall be taken to control another body corporate if it is empowered by statute to control that body’s activities or if it is that body’s holding company within the meaning of section 736 of the [OSCURATO:PERSONA] 1985 [1985 c. 6]. (3) For the purposes of this section an individual or individuals shall be taken to control a body corporate if he or they, were he or they a company, would be that body’s holding company within the meaning of that section.’ The pre-litigation procedure and the proceedings before the [OSCURATO:PERSONA] 10. On 23 September 2008, the [OSCURATO:PERSONA] sent a letter of formal notice to the [OSCURATO:PERSONA] drawing the attention of that [OSCURATO:PERSONA] to the possible incompatibility with Articles 9 and 11 of the VAT [OSCURATO:PERSONA] of its national legislation permitting the inclusion of non-taxable persons in a VAT group. In accordance with [OSCURATO:PERSONA] 226 EC, the [OSCURATO:PERSONA] invited the [OSCURATO:PERSONA] to submit its observations. 11. In their letter in reply of 18 November 2008, the [OSCURATO:PERSONA] authorities disputed the [OSCURATO:PERSONA] interpretation of the VAT [OSCURATO:PERSONA]. 12. As the [OSCURATO:PERSONA] was not satisfied with that reply, on 20 November 2009 it issued a reasoned opinion, to which the [OSCURATO:PERSONA] replied by letter of 18 January 2010 maintaining its position. 13. In those circumstances the [OSCURATO:PERSONA] decided to bring the present action. 14. By order of the President of the [OSCURATO:PERSONA] of 8 July 2011, the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland were granted leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. The action Arguments of the parties 15. In support of its action, the [OSCURATO:PERSONA] submits that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] must be interpreted as meaning that non-taxable persons for VAT purposes cannot be included in a VAT group. 16. It submits that the word ‘persons’ in [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] refers only to persons who satisfy the necessary conditions to be regarded as taxable persons. It points out, in that regard, that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] is included in Title III of that directive (entitled ‘Taxable persons’) and that it does not contain a derogation from [OSCURATO:PERSONA] 9 thereof, which defines a ‘taxable person’ as ‘any person who, independently, carries out … any economic activity’. 17. [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] contends, constitutes an exception to the general rule that each taxable person is to be treated as a separate entity for the application of the VAT rules. That provision must therefore be interpreted in such a way as not to diverge any more than necessary from the general rule. Although that provision does not expressly provide that the members of a VAT group must be taxable persons, the fact that the persons included in such a group are to be treated as ‘a single’ taxable person nevertheless implies that each member of that group must itself be a taxable person. Likewise, the concept of ‘grouping’ implies that the persons concerned belong to the same category for the purposes of the common system of VAT. The word ‘persons’ was therefore used only in order to avoid repetition of the term ‘taxable person’. 18. Furthermore, according to the [OSCURATO:PERSONA], if the word ‘persons’ were to be understood as referring to all persons without restriction, then a VAT group could be composed solely of non-taxable persons, something which would be contrary to the VAT [OSCURATO:PERSONA]. 19. [OSCURATO:PERSONA] submits that its interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] is, moreover, consistent with the objective of that article, which is, as is apparent from the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] proposal [COM(73) 950 final] which led to the adoption of [OSCURATO:PERSONA] 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the [OSCURATO:PERSONA] relating to turnover taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) (‘the [OSCURATO:PERSONA]’), to simplify administration for the taxpayer and the tax authorities and to combat abuse by preventing persons which are not truly independent business units from being treated as separate taxable persons. The inclusion of non-taxable persons in a VAT group would, the [OSCURATO:PERSONA] argues, neither simplify administration nor prevent abuse. 20. Neither the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] nor the preparatory documents relating to that directive state that that provision was intended to alter the concept of a ‘taxable person’ or to extend the rights and obligations of taxable persons to others. That would, however, be the result, according to the [OSCURATO:PERSONA], if non-taxable persons were able to join a VAT group. In particular, as acquisitions that take place within a VAT group are regarded as non-existent for VAT purposes, that would permit the supply of goods and the provision of services to non-taxable persons without any charge to VAT, and would allow the group in question to recover input VAT in respect of supplies made to such persons, which would clearly be contrary to the common system of VAT. 21. It is therefore necessary, according to the [OSCURATO:PERSONA], not to adhere to a literal interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], but to read it in the light of its immediate context, namely Title III of the VAT [OSCURATO:PERSONA], and, more generally, in the light of the scheme of that directive. 22. Contrary to what the [OSCURATO:PERSONA] maintains, the principles of fiscal neutrality and of equal treatment require the exclusion of non-taxable persons from VAT groups because the question as to whether or not an entity engages in economic activities is fundamental to the common system of VAT and is not arbitrary. 23. Although the [OSCURATO:PERSONA] has not hitherto had occasion to rule on the issue raised by the present case, indirect support for the [OSCURATO:PERSONA] position is, in the latter’s view, to be found in paragraph 19 of the judgment in [OSCURATO:PERSONA] C‑162/07 Ampliscientifica and Amplifin [2008] ECR I‑4019, and in the Opinion of [OSCURATO:PERSONA] in the case which gave rise to the judgment in [OSCURATO:PERSONA] C‑60/90 [OSCURATO:PERSONA] [1991] ECR I‑3111. 24. [OSCURATO:PERSONA] contends that the action should be dismissed. It states, first of all, that the provisions of its national legislation were enacted pursuant to [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA], now [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], and do not make the inclusion of an entity in a VAT group dependent on its status as a taxable person within the meaning of [OSCURATO:PERSONA] 9 of the VAT directive. 25. Since the [OSCURATO:PERSONA] accepts that exempt or partially exempt traders may join fully taxable traders in a VAT group, it must also, according to that [OSCURATO:PERSONA], accept that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] contemplates the situation to which it objects, namely taxable persons extending their rights and obligations to non‑taxable persons. It submits, in that regard, that that article permits [OSCURATO:PERSONA] merely to regard persons closely bound to one another by financial, economic and organisational links as a single taxable person. 26. So far as concerns the literal interpretation of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] takes the view that the words ‘any persons’ used in the [OSCURATO:PERSONA]‑language version of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] strongly imply that the reference is to persons in general, whether they are taxable or non-taxable. Furthermore, if it had been the legislature’s intention to exclude non-taxable persons from VAT groups then different wording would have been used. Moreover, the distinction made between ‘persons’ and ‘taxable persons’ is not unique to the [OSCURATO:PERSONA]-language version of that article, but appears in other language versions thereof. 27. The concept of grouping does not, in the view of the [OSCURATO:PERSONA], necessarily mean that all the members of the group are engaged in activities falling within the scope of the VAT [OSCURATO:PERSONA]. The member of a VAT group must simply be closely bound to one another by financial, economic and organisational links. Little weight should be attached to the adjective ‘single’, which simply means that those who have grouped together are treated as a single entity for VAT purposes. [OSCURATO:PERSONA] concern that a VAT group could be composed solely of non‑taxable persons is unfounded. There are no such groups in the [OSCURATO:PERSONA] and they would be devoid of any meaningful purpose. 28. As regards the objective of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] maintains that the objectives of simplifying administration and combating abuse can be met by allowing non-taxable persons to join a VAT group. In particular, the inclusion within such a group of companies such as dormant companies or holding companies, which have the potential to engage in economic activities and may support activities elsewhere in the group, meets the objective of simplifying administration. [OSCURATO:PERSONA] approach ignores the [OSCURATO:PERSONA]’s case-law, which recognises that entities which merely have the potential to engage in economic activities, or which do so only intermittently, may nevertheless fall within the scope of VAT. 29. Lastly, the [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] position is not supported by the case-law to which it refers and takes the view that it would be contrary to the principles of fiscal neutrality and of equal treatment to permit some corporate groups to form a VAT group but not others, simply because they have different corporate structures. That, it is argued, would encourage the artificial creation of minimal amounts of economic activity to justify the inclusion of non‑taxable persons within a VAT group. 30. Like the [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland submit that the [OSCURATO:PERSONA] position is not supported by the wording and objectives of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the common system of VAT or the [OSCURATO:PERSONA]’s case-law. Findings of the [OSCURATO:PERSONA] 31. It should be borne in mind at the outset that, in determining the scope of a provision of [OSCURATO:PERSONA] law, its wording, context and objectives must all be taken into account ([OSCURATO:PERSONA] C‑174/08 NCC [OSCURATO:PERSONA] [2009] ECR I‑10567, paragraph 23 and the case-law cited). 32. In the present case, it is apparent from the wording of the first paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] that that directive permits each [OSCURATO:PERSONA] to regard a number of persons as a single taxable person if those persons are established in the territory of that [OSCURATO:PERSONA] and if, although they are legally independent, they are closely bound to one another by financial, economic and organisational links. The application of that article is not, according to its wording, made subject to other conditions, in particular to the condition that those persons could themselves, individually, have had the status of a taxable person within the meaning of [OSCURATO:PERSONA] 9(1) of the VAT [OSCURATO:PERSONA]. As it uses the word ‘persons’ and not the words ‘taxable persons’, the first paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] does not make a distinction between taxable persons and non-taxable persons (judgment of 9 April 2013 in [OSCURATO:PERSONA] C‑85/11 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2013] ECR I-0000, paragraph 36). 33. It must be pointed out that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] derives from the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA]. Whereas point 2 of Annex A to [OSCURATO:PERSONA] 67/228/EEC of 11 April 1967 on the harmonisation of legislation of [OSCURATO:PERSONA] concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, [OSCURATO:PERSONA] 1967, p. 16), which introduced the concept of a VAT group into [OSCURATO:PERSONA] law, permitted [OSCURATO:PERSONA] ‘not to consider as separate taxable persons, but as one single taxable person’, persons who are organically linked to one another by economic, financial or organisational relationships, the words ‘as separate taxable persons’ were abandoned in the drafting of the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA] ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 37). 34. Furthermore, although the wording of the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA] was repeated in similar terms in the majority of the language versions of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], in the [OSCURATO:PERSONA]-language version of that article the word ‘any’ was added, with the result that the relevant passage of that provision reads as follows: ‘each [OSCURATO:PERSONA] may regard as a single taxable person any persons established in the territory of that [OSCURATO:PERSONA]’ ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 38). 35. It is not apparent from those successive drafting amendments that the [OSCURATO:PERSONA] legislature intended, when adopting the [OSCURATO:PERSONA] and, subsequently, the VAT [OSCURATO:PERSONA], to preclude non-taxable persons from being capable of inclusion in a VAT group and that the word ‘persons’ was used instead of the words ‘taxable persons’ in order to avoid repetition. The fact that other provisions of the VAT [OSCURATO:PERSONA], which do not come under Title III thereof dealing with the concept of a ‘taxable person’, use the term ‘persons’ to designate taxable persons cannot result in any different finding, as that term is used in a different context to that of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 39). 36. Furthermore, it must be pointed out that, contrary to what the [OSCURATO:PERSONA] argues, it cannot be inferred from the words ‘as a single taxable person’ that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] seeks solely to permit a number of taxable persons to be dealt with as a single entity, as those words relate, not to a condition for the application of that article, but to its outcome, which is that a number of persons are regarded as a single taxable person. In addition, there is no basis in the wording of that article for the [OSCURATO:PERSONA] argument that it represents an exception to the general rule that each taxable person must be treated as a separate entity, with the result that that article is to be interpreted restrictively, or for the argument that the concept of grouping implies that all of the persons concerned belong to the same category, as the word ‘grouping’ does not appear in that article ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 40). 37. Consequently, it is not apparent from the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] that non-taxable persons cannot be included in a VAT group ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 41). 38. [OSCURATO:PERSONA], however, submits that, going beyond the wording of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], its interpretation of that article must prevail in view of its context, its objectives and the case-law of the [OSCURATO:PERSONA]. It is for that reason necessary to examine whether the arguments put forward by the [OSCURATO:PERSONA] in support of that stance demonstrate that [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] must be interpreted as meaning that non-taxable persons cannot be included in a VAT group. 39. It must be pointed out, firstly, that the case-law of the [OSCURATO:PERSONA] to which the [OSCURATO:PERSONA] refers as regards that issue cannot usefully be relied on in the present case since that issue is not the subject-matter of the abovementioned judgments in [OSCURATO:PERSONA] and Ampliscientifica and Amplifin ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 43). 40. As regards, secondly, the context of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], it is necessary to point out that [OSCURATO:PERSONA] 9(1) of that directive contains a general definition of the concept of a ‘taxable person’. [OSCURATO:PERSONA] 9(2) and Articles 10, 12 and 13 of that directive provide details in respect of that concept, either by including in it, or by permitting [OSCURATO:PERSONA] to include in it, persons who do not satisfy that general definition, such as persons who carry out certain transactions on an occasional basis, or by excluding other persons from it, such as employed persons or public authorities. Consequently, it cannot be inferred from the scheme of Title III of the VAT [OSCURATO:PERSONA] that a person who does not satisfy that general definition is necessarily excluded from being one of the persons referred to in [OSCURATO:PERSONA] 11 thereof ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 44). 41. As regards the relationship, within Title III of the VAT [OSCURATO:PERSONA], between Articles 9(1) and 11 of that directive, it must be stated that a combined reading of those articles does not support the conclusion, drawn by the [OSCURATO:PERSONA], that the persons referred to in [OSCURATO:PERSONA] 11 must individually satisfy the general definition of a taxable person set out in [OSCURATO:PERSONA] 9(1) of that directive. A comparison of those two provisions does not preclude the interpretation that, as submitted by the [OSCURATO:PERSONA] and the interveners, it is those persons, taken together and closely bound to one another by financial, economic and organisational links, who must collectively satisfy that definition ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 45). 42. Consequently, it is not possible to uphold the [OSCURATO:PERSONA] arguments that, having regard to the context of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], that article must be interpreted as meaning that non-taxable persons cannot be included in a VAT group ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 46). 43. As regards, thirdly, the objectives pursued by [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], it is apparent from the [OSCURATO:PERSONA] to the proposal which resulted in the adoption of the [OSCURATO:PERSONA] that, by adopting the second subparagraph of [OSCURATO:PERSONA] 4(4) of the [OSCURATO:PERSONA], which was replaced by [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA], the [OSCURATO:PERSONA] legislature intended, in the interests of simplifying administration or with a view to combating abuses such as, for example, the splitting-up of one undertaking among several taxable persons so that each might benefit from a special scheme, to ensure that [OSCURATO:PERSONA] would not be obliged to treat as taxable persons those whose ‘independence’ is purely a legal technicality ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 47). 44. It is not evident that the possibility for [OSCURATO:PERSONA] to regard as a single taxable person a group of persons including one or more persons who may not individually have the status of a taxable person runs counter to those objectives. It is, on the contrary, conceivable that, as the [OSCURATO:PERSONA] and the interveners have submitted, the presence, within a VAT group, of such persons contributes to administrative simplification both for the group and for the tax authorities and makes it possible to avoid certain abuses, and that that presence may even be indispensable to those ends if it alone establishes the close financial, economic and organisational links which must exist between the persons constituting that group in order for it to be regarded as a single taxable person ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 48). 45. In addition, it must be pointed out that, if such a possibility might itself give rise to abuse, the second paragraph of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] permits [OSCURATO:PERSONA] to adopt any measures needed to prevent tax evasion or avoidance through the use of the first paragraph of [OSCURATO:PERSONA] 11 ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 49). 46. Consequently, the [OSCURATO:PERSONA] has not established that the objectives of [OSCURATO:PERSONA] 11 of the VAT [OSCURATO:PERSONA] militate in favour of an interpretation according to which non-taxable persons cannot be included in a tax group. 47. In view of all of the foregoing considerations, the [OSCURATO:PERSONA] action must be dismissed. Costs 48. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs. In accordance with [OSCURATO:PERSONA] 140(1) of those Rules of Procedure, under which [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs, it must be held that the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland are to bear their own respective costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. Orders the [OSCURATO:PERSONA] to pay the costs; 3. Orders the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Finland to bear their own respective costs.
Sentenza Corte di giustizia UE/2013 — Fons Iuris — Fons Iuris