État belge

(Reference for a preliminary ruling from the Tribunal de première instance de Bruxelles)

(Sixth VAT Directive – Articles 4 and 9(2)(e) – Concept of taxable person – Place where services are supplied – SICAV)

Summary of the Judgment

(Council Directive 77/388, Art. 4(2))

(Council Directive 77/388, Arts 4 and 9(2)(e))

1.The activity consisting in the collective investment in transferable securities of capital raised from the public, for a fee, which goes beyond the compass of the simple acquisition and the mere sale of securities and which aims to produce income on a continuing basis, constitutes an economic activity within the meaning of Article 4(2) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.

(see paras 42-43)

2.Open-ended investment companies (SICAVs) which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Directive 85/611 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) are taxable persons within the meaning of Article 4 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes so that, where services referred to in Article 9(2)(e) of that directive are supplied to such SICAVs which are established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business.

(see para. 48, operative part)

JUDGMENT OF THE COURT (First Chamber) 21 October 2004 (1)

(Sixth VAT Directive – Articles 4 and 9(2)(e) – Concept of taxable person – Place where services are supplied – SICAV)

In Case C-8/03, REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal de première instance de Bruxelles (Belgium), made by decision of 24 December 2002, received at the Court on 10 January 2003, in the proceedings:

Belgian State,

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr (Rapporteur), Judges,

Advocate General: M. Poiares Maduro, Registrar: M.-F. Contet, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 March 2004, after considering the observations submitted on behalf of:

– Banque Bruxelles Lambert SA (BBL), by B. de Duve, S. Houx and F. Herbert, avocats,

– the Kingdom of Belgium, by E. Dominkovitis, acting as Agent, and by G. Vandersanden and E. De Plaen, avocats,

– the Hellenic Republic, by D. Kalogiros and S. Spyropoulos, acting as Agents, and by M. Tassopoulou,

– the Commission of the European Communities, by E. Traversa and C. Giolito, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 May 2004,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

banking, financial and insurance transactions, including reinsurance, with the exception of the hire of safes’.

The main proceedings and the questions referred

The order for reference states that, during the period relevant to the main proceedings, BBL provided services to Luxembourg SICAVs [BBL Renta Fund, BBL Renta Cash, BBL Patrimonial, International Aviation Fund, BBL Capital Cash, BBL Portfolio and BBL (L) Invest]. Under the consultancy agreement entered into with each of its SICAVs, BBL undertook to:

–assist the SICAV in the management of its assets, by ensuring that any advice given by it was strictly in accordance with the general management guidelines and investment policy adopted by the SICAV;

–provide to those responsible for the day-to-day management of the SICAV all documentation, information and oral or written advice they might deem necessary in order to carry out their duties;

–assist the SICAV in the acquisition, subscription, transfer and disposal of shares, bonds and all other negotiable securities and in relation to currency or treasury operations.

In February 1998, BBL was the subject of an inspection carried out by the Liège special tax inspection department for the period from 1 May 1993 to 31 December 1997. As a result of that inspection, a report was drawn up on 28 May 1998, stating that BBL had not invoiced VAT in relation to fees invoiced to the Luxembourg SICAVs for advice given, as it considered that those services had been supplied in the Grand Duchy of Luxembourg by virtue of Article 21(3)(7)(d) or (e) of the Belgian VAT Code.

In that regard, the national court states that the report suggests that Article 21(3)(7) of the Belgian VAT Code does not apply, because Luxembourg SICAVs are not considered under Luxembourg legislation to be taxable persons.

Furthermore, according to the report, BBL acted with the intention of avoiding VAT or permitting VAT to be avoided, as it could not have been unaware that VAT arising on the cost of the services supplied to the Luxembourg SICAVs was not paid either to the Belgian State or to the Luxembourg State.

On 8 June 1998, a final demand was issued to BBL for, inter alia, EUR 45 491 373.03 by way of VAT due for the period from 1 May 1993 to 31 December 1997, for EUR 90 982 746.07 by way of a fine at the rate of 200% and for EUR 1 819 654.49 in respect of interest on late payment from 1 January to 20 June 1998.

BBL brought proceedings to contest that final demand before the Tribunal de première instance de Bruxelles (Brussels Court of First Instance).

The national court observes that to take the view that each Member State is free to treat, or not to treat, persons established in its territory or carrying on business there as being subject to VAT is to misconstrue the Community provisions relating to VAT, the purpose of which is precisely to harmonise the concept of a taxable person and to allocate among the Member States the power to tax transactions by providing a uniform definition of the place where goods and services are supplied.

In accordance with the duty to interpret national provisions in conformity with Community law, Article 21(3) of the Belgian VAT Code, which transposed Article 9(2)(e) of the Sixth Directive into Belgian law, must be interpreted in the light of the wording of that directive and the purpose which it is intended to achieve, and there is no need to refer to Luxembourg law.

However, the national court observes that the question whether SICAVs carry out an economic activity within the meaning of Article 4 of the Sixth Directive and accordingly whether they are subject to VAT has not yet been decided by the Court.

If the Luxembourg SICAVs were not to be treated as subject to VAT, with the result that the services supplied by BBL would be deemed to be supplied in Belgium, the national court observes that the question arises whether those services could benefit from the exemption provided for under Article 13B(d)(6) of the Sixth Directive.

In the light of those considerations, the Tribunal de première instance de Bruxelles decided to stay the proceedings and to refer the two questions set out below to the Court for a preliminary ruling:

–Are sociétés d’investissement à capital variable (open-ended investment companies) (SICAVs) established in a Member State which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Council Directive 85/611 of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) taxable persons for value-added-tax purposes within the meaning of Article 4 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, so that, where services referred to in Article 9(2)(e) of that directive are supplied to those SICAVs, the place where those services are deemed to be supplied is the place where the SICAVs have established their seat?

–If the answer to that question is in the negative, the resolution of the case entails determining what types of services provided to SICAVs may benefit from the exemption under Article 13B(d)(6) of the Sixth Directive: is it necessary in that context to distinguish between services which comprise the giving of assistance and management advice, on the one hand, and management services in the strict sense, on the other, the latter being said to differ from the former in that they imply a power on the manager’s part to take decisions relating to the administration and disposal of the assets under management?

The first question

By its first question, the national court is essentially asking whether SICAVs which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Directive 85/611 are taxable persons within the meaning of Article 4 of the Sixth Directive, so that, where services referred to in Article 9(2)(e) of that directive are supplied to such SICAVs which are established in a Member State other than that of the supplier of the services, the place where those services are supplied is the place where the SICAVs have established their business.

Observations submitted to the Court

All parties which have submitted observations are of the opinion that SICAVs established in accordance with Directive 85/611 carry out economic activities which make them taxable persons for the purposes of Article 4 of the Sixth Directive.

In that regard, BBL notes the Court’s case-law relating to financial instruments which establishes a distinction between transactions which constitute economic activities for the purposes of the Sixth Directive and those which do not, in particular Case C-60/90 Polysar Investments Netherlands [1991] ECR I-3111; Case C-333/91 Sofitam [1993] ECR I‑3513 and Case C-155/94 Wellcome Trust [1996] ECR I-3013.

The activities of UCITS in that regard must be analysed on two levels: first, the relationship between the UCITS and its participants and, secondly, that between the UCITS and the market.

As regards the relationship between the UCITS and its participants, BBL argues that UCITS can be distinguished from the other economic operators in the financial markets, inasmuch as they actively promote the marketing of their own units. When the units are marketed, the UCITS charge a fee, known, as appropriate, as entry commission or exit commission. That commission is the counterpart of a right of access or withdrawal on the part of the subscriber to the UCITS and the provision of the services connected with that access or withdrawal.

As regards the relationship between the UCITS and the market, BBL submits that UCITS aim to offer the general public a service which is comparable to the services offered by private banks to their favoured customers in the field of asset management.

As it considers that those SICAVs which carry on activities regulated by Directive 85/611 are taxable persons by virtue of Article 4 of the Sixth Directive, BBL claims that Article 9(2)(e) of that directive is applicable.

The Belgian Government submits that, according to the Court’s case‑law, the mere acquisition and holding of shares in a company is not to be regarded as an economic activity, within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person (see, inter alia, Polysar Investments Netherlands, paragraph 13, and Case C-80/95 Harnas & Helm [1997] ECR I-745, paragraph 15).

However, the activities carried out by SICAVs are referred to in Article 13B(d)(4) and (5) of the Sixth Directive, and transactions referred to in those provisions will fall within the scope of VAT, in particular where they are effected as part of a commercial share-dealing activity (see Polysar Investments Netherlands, paragraph 14, and Harnas & Helm, paragraph 16).

The Greek Government argues that the transactions carried out by SICAVs are not those of a mere investor who has acquired shares in order to retain them for purposes of profit, as was the position in Polysar Investments Netherlands, but the organised exploitation of capital to buy and sell transferable securities. That Government also states that the fact that, according to Article 13B(d)(6) of the Sixth Directive, the management of special investment funds is exempt from VAT means that those involved in that management are, in principle, subject to the tax.

The Commission states as a preliminary point that, leaving Belgium and Luxembourg aside, the question whether SICAVs are subject to VAT has not been completely resolved in the Member States. In the Netherlands, by reference to the Polysar Investments Netherlands case-law, SICAVs are, as in Luxembourg, treated as non-taxable persons. In Belgium, Germany, Denmark, Spain, France, Ireland, Italy, Portugal and the United Kingdom, SICAVs are treated as taxable persons, but are exempt.

Next, the Commission observes that management companies, within the meaning of Directive 85/611, are generally undertakings which supply services in consideration for which they charge management fees. The fact that Article 13B(d)(6) of the Sixth Directive expressly provides for the management of special investment funds to be exempt shows that the transactions concerned fall within the scope of VAT.

The management company or the SICAV which manages funds undeniably carries on an activity which amounts to the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis for the purposes of Article 4(2) of the Sixth Directive, and thus falls to be distinguished from holding companies which do no more than hold shares. To treat managers of funds differently, depending on whether that activity is carried out by a management company outside the fund or by the SICAV itself, would contravene the principle that VAT should be neutral.

Findings of the Court

It must be noted that under Article 4(1) of the Sixth Directive a taxable person is any person who independently carries out any economic activity specified in paragraph 2 of that article. ‘Economic activities’ are defined in Article 4(2) as comprising all activities of producers, traders and persons supplying services, and in particular the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. ‘Exploitation’ within the meaning of Article 4(2) refers, in accordance with the requirements of the principle that the common system of VAT should be neutral, to all those transactions, whatever may be their legal form (see Case C‑186/89 Van Tiem [1990] ECR I‑4363, paragraph 18; Case C-306/94 Régie dauphinoise [1996] ECR I‑3695, paragraph 15, and Case C-77/01 EDM [2004] ECR I-0000, paragraph 48).

It must be noted that under Article 4(1) of the Sixth Directive a taxable person is any person who independently carries out any economic activity specified in paragraph 2 of that article. ‘Economic activities’ are defined in Article 4(2) as comprising all activities of producers, traders and persons supplying services, and in particular the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. ‘Exploitation’ within the meaning of Article 4(2) refers, in accordance with the requirements of the principle that the common system of VAT should be neutral, to all those transactions, whatever may be their legal form (see Case C‑186/89 Van Tiem [1990] ECR I‑4363, paragraph 18; Case C-306/94 Régie dauphinoise [1996] ECR I‑3695, paragraph 15, and Case C-77/01 EDM [2004] ECR I-0000, paragraph 48).

The purpose of the Sixth Directive, which seeks in particular to found a common system of VAT upon a uniform definition of ‘taxable persons’, requires that status to be assessed solely on the basis of the criteria set forth in Article 4 of that Directive (see Van Tiem, paragraph 25).

38It must also be pointed out that it is settled case-law that the mere acquisition and holding of shares in a company is not to be regarded as an economic activity within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person. The mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis because any dividend yielded by that holding is merely the result of ownership of the property and is not the product of any economic activity within the meaning of that directive (see Harnas & Helm, paragraph 15, and Case C-442/01 KapHag [2003] ECR I-6851, paragraph 38). If, therefore, such activities do not in themselves constitute an economic activity within the meaning of that directive, the same must be true of activities consisting in the sale of such holdings (see Wellcome Trust, paragraph 33, and KapHag, paragraph 40).

39Likewise, the simple acquisition and the mere sale of other negotiable securities cannot amount to exploitation of an asset for the purpose of obtaining income on a continuing basis, the only consideration for those transactions consisting of a possible profit on the sale of those securities (see EDM, paragraph 58).

40As a rule, such transactions cannot, by themselves, constitute economic activities within the meaning of the Sixth Directive.

41However, it follows from Article 13B(d)(5) of the Sixth Directive that transactions affecting securities may come within the scope of VAT. The Court has already held that the transactions covered by that provision are those which consist in drawing revenue on a continuing basis from activities which go beyond the compass of the simple acquisition and sale of securities, such as transactions carried out in the course of a business trading in securities (see EDM, paragraph 59).

42It follows from Article 1(2) of Directive 85/611 that the transactions carried out by SICAVs consist in the collective investment in transferable securities of capital raised from the public. With the capital provided by subscribers when they purchase shares, SICAVs assemble and manage, on behalf of the subscribers and for a fee, portfolios consisting of transferable securities.

43Such an activity, which goes beyond the compass of the simple acquisition and the mere sale of securities and which aims to produce income on a continuing basis, constitutes an economic activity within the meaning of Article 4(2) of the Sixth Directive.

44It follows that SICAVs are taxable persons within the meaning of Article 4 of the Sixth Directive.

45Accordingly, where services referred to in Article 9(2)(e) of the Sixth Directive are supplied to SICAVs established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business.

46Against that background, the Belgian Government, which accepts that consultancy services, data processing services and information provision services provided to the SICAVs come within the scope of the third indent of Article 9(2)(e) of the Sixth Directive, none the less argues that the management services provided to them, which can be characterised by the fact that they comprise, de jure or de facto, the power to take decisions, are, by contrast, not covered by that provision.

47In that regard, it is sufficient to hold, as the Advocate General noted at point 20 of his Opinion, that the third and fifth indents of Article 9(2)(e) of the Sixth Directive cover both consultancy services and banking and financial transactions.

48The answer to the first question must therefore be that SICAVs which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Directive 85/611 are taxable persons within the meaning of Article 4 of the Sixth Directive, so that, where services referred to in Article 9(2)(e) of that directive are supplied to such SICAVs established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business.

The second question

49Since the second question was posed only in the event of a negative answer to the first question, it does not require an answer.

Costs

50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than by those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

Open-ended investment companies (SICAVs) which have as their sole object the collective investment in transferable securities of capital raised from the public in accordance with Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) are taxable persons within the meaning of Article 4 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, so that, where services referred to in Article 9(2)(e) of that directive are supplied to such SICAVs which are established in a Member State other than that of the supplier of the services, the place where those services are provided is the place where the SICAVs have established their business.

Signatures.

Language of the case: French.