16.2.2013

Official Journal of the European Union

C 46/10

(Case C-549/11) (<span class="super">1</span>)

(VAT - Directive 2006/112/EC - Articles 63, 65, 73 and 80 - Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons - Barter contract - VAT on construction services - Chargeable event - When chargeable - Payment on account of the entire consideration - Payment on account - Basis of assessment for a transaction in the event of consideration in the form of goods or services - Direct effect)

2013/C 46/18

Language of the case: Bulgarian

Referring court

Parties to the main proceedings

Applicant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Burgas pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Defendant: Orfey Balgaria EOOD

Re:

Request for a preliminary ruling — Varhoven administrativen sad — Interpretation of Articles 63, 65, 73 and 80 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p.1) — Occurrence of the chargeable event for VAT on the supply of a construction service — Creation by natural persons of a building right for a company in exchange for construction services by that company for those persons — Advance payment — National legislation laying down as basis of assessment for a transaction, in the event of consideration in the form of goods or services, the open market value of the supply of goods or services

Operative part of the judgment

Articles 63 and 65 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, where a building right is established in favour of a company in order to erect a building, by way of consideration for construction services of certain real property in that building and that company has undertaken to deliver on a turn-key basis to the persons who established that building right, they do not preclude the VAT on those construction services from becoming chargeable as from the moment when the building right is established, that is to say, before those services are performed, provided that, at the time that right is established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of that right may be expressed in monetary terms, which it is for the national court to verify.

In circumstances such as those of the main proceedings, where the transaction is not completed between parties having ties within the meaning of Article 80 of Directive 2006/112, which it is for the national court to verify, Articles 73 and 80 of that directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, under which, when the consideration for a transaction is made up entirely of goods or services, the taxable amount of the transaction is the open market value of the goods or services supplied.

Articles 63, 65 and 73 of Directive 2006/112 have direct effect.

(<span class="super">1</span>) OJ C 13, 14.1.2012.