Provisional text

JUDGMENT OF THE COURT (First Chamber)

9 July 2026 (*)

( Reference for a preliminary ruling – State aid – Article 107(1) TFEU – Value added tax – Exemption in respect of services provided between undertakings primarily carrying out transactions in the banking, insurance or pension fund sector – Admissibility of the request for a preliminary ruling – Concept of ‘aid’ – Advantage – Selectivity – Request to limit the temporal effects of the judgment )

In Case C‑360/25 [Schoger II], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzgericht (Federal Finance Court, Austria), made by decision of 30 May 2025, received at the Court on 30 May 2025, in the proceedings

***X***

v

Finanzamt für Großbetriebe,

THE COURT (First Chamber),

composed of F. Biltgen, President of the Chamber, I. Ziemele, A. Kumin, S. Gervasoni (Rapporteur) and M. Bošnjak, Judges,

Advocate General: A. Biondi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        ***X***, by P. Goeth, Rechtsanwalt,

–        the Austrian Government, by F. Koppensteiner, acting as Agent,

–        the European Commission, by M. Farley and L. Wildpanner, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 107 TFEU.

2        The request has been made in proceedings between ***X***, an Austrian company, and the Finanzamt für Großbetriebe (Tax authority for large traders, Austria) (‘the tax authority’) concerning the value added tax (VAT) notices of assessment received by ***X*** for the period from 2013 to 2017 (‘the tax period at issue’).

 Legal context

 European Union law

3        Article 107(1) TFEU provides:

‘Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.’

4        Recital 5 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’) states:

‘A VAT system achieves the highest degree of simplicity and of neutrality when the tax is levied in as general a manner as possible and when its scope covers all stages of production and distribution, as well as the supply of services. It is therefore in the interests of the internal market and of Member States to adopt a common system which also applies to the retail trade.’

5        Article 131 of the VAT Directive, which introduces Title IX thereof, entitled ‘Exemptions’, provides:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

6        Article 135(1) of that directive provides:

‘1.      Member States shall exempt the following transactions:

(a)      insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents;

(b)      the granting and the negotiation of credit and the management of credit by the person granting it;

(c)      the negotiation of or any dealings in credit guarantees or any other security for money and the management of credit guarantees by the person who is granting the credit;

(d)      transactions, including negotiation, concerning deposit and current accounts, payments, transfers, debts, cheques and other negotiable instruments, but excluding debt collection;

(e)      transactions, including negotiation, concerning currency, bank notes and coins used as legal tender, with the exception of collectors' items, that is to say, gold, silver or other metal coins or bank notes which are not normally used as legal tender or coins of numismatic interest;

(f)      transactions, including negotiation but not management or safekeeping, in shares, interests in companies or associations, debentures and other securities, but excluding documents establishing title to goods, and the rights or securities referred to in Article 15(2);

(g)      the management of special investment funds as defined by Member States;

…’

7        Article 168 of the VAT Directive, which defines the scope of the right of deduction, provides that ‘in so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct … from the VAT which he is liable to pay the [VAT due or paid in respect of the goods or services used]’.

 Austrian law

8        The Umsatzsteuergesetz (Law on Turnover Tax), of 23 August 1994 (BGBl. 663/1994), in the version applicable to the dispute in the main proceedings (‘the UStG’), is intended to transpose the VAT Directive into Austrian law.

9        Under Paragraph 6(1)(28) of the UStG:

‘The following transactions covered by Paragraph 1(1)(1) and (2) shall be exempt [from VAT]:

…

28.      other services that groupings of undertakings primarily carrying out transactions relating to the banking, insurance, or pension fund sector provide to their members, provided that those services are directly used to carry out those exempt transactions and that those groupings merely demand from their members the exact reimbursement of their share of the collective expenditure incurred. That [exemption] shall also apply in respect of other services provided between undertakings primarily carrying out transactions relating to the banking, insurance, or pension fund sector, provided that those services are directly used to carry out those exempt transactions, and the making available of the staff of those undertakings to the groupings referred to in the first sentence.’

10      Paragraph 6(1)(7) and (8) of the UStG provides for other derogations from the liability to VAT, inter alia in respect of certain transactions carried out by social security bodies and the granting and negotiation of credit.

11      Paragraph 12(3)(2) of the UStG provides, in addition, for an exclusion from the right to deduct input VAT paid in respect of other services ‘in so far as the trader uses those other services to carry out exempt transactions’.

 The dispute in the main proceedings and the question referred for a preliminary ruling

12      ***X*** is an Austrian bank, which is also the parent company of an Austrian fiscal unit for VAT purposes (VAT group).

13      Following a field audit which gave rise to a report dated 1 December 2021, the tax authority found that certain cross-border services provided by a contracting partner of ***X*** relating to automatic teller machines did not fall within the exemption provided for in Paragraph 6(1)(8)(e) of the UStG. Consequently, that authority amended, on the basis of a transfer of the tax debt, the VAT notices of assessment of ***X*** relating to the tax period at issue.

14      Since the tax authority did not accede to the complaint of ***X*** lodged on 20 December 2021 against those tax notices, ***X*** requested, by application of 13 July 2022, that that complaint be brought before the Bundesfinanzgericht (Federal Finance Court, Austria), which is the referring court.

15      The referring court states that it is required, in accordance with its obligation to exercise its powers of unlimited jurisdiction to review the VAT notices of assessment which are the subject of a complaint, to examine any possible illegalities they may have and to carry out the necessary factual investigations in this connection, even in the absence of any challenge by the taxable persons concerned in that regard and including, as the case may be, if its assessment were to lead to a result unfavourable to those taxable persons.

16      In the present case, ***X*** applied the VAT exemption provided for in the second sentence of paragraph 6(1)(28) of the UStG (‘the exemption at issue’) in its VAT returns which gave rise to the disputed notices of assessment. The lawfulness of the exemption at issue in the light of EU law, even though it is not disputed in the main proceedings, gives rise to doubts.

17      Accordingly, first, the referring court states that that exemption, which makes no distinction in terms of the nature of the services concerned, lacks a legal basis in EU law, in particular in the light of the VAT Directive. The referring court considers, however, that it is not in a position to comply with the VAT Directive, since it is not possible for it to directly apply that directive against the wishes of the taxable person or to interpret the national law in conformity with that directive, which would be contra legem.

18      Secondly, the referring court considers that the exemption at issue satisfies the conditions to be classified as ‘State aid’, since, inter alia, it could be regarded as constituting an intervention by the State, in the absence of a basis in the VAT Directive, that it involves the forgoing of resources which the State would otherwise have received, that it benefits ***X*** and the recipients of its services, who are in direct competition with other European banks, and that it is selective. The referring court infers from that that it is necessary to ask the Court of Justice whether the exemption at issue is compatible with the provisions of the FEU Treaty relating to State aid. The referring court also states that the repeal of that exemption since 1 January 2025 reveals the doubts of the Austrian legislature itself as to the compatibility of that exemption with EU law.

19      In those circumstances the Bundesfinanzgericht (Federal Finance Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘[Does the VAT exemption relating] to other services [provided] between undertakings which primarily carry out [transactions relating to the] banking, insurance or pension fund [sector], provided that those services are used directly [to carry out those] exempt transactions, and for the provision of [the staff of] those undertakings to the groupings referred to in the first sentence [of Paragraph 6(1)(28) of the UStG, constitute a State aid within the meaning of Article 107(1) TFEU?]’

 Admissibility of the request for a preliminary ruling

20      The present request for a preliminary ruling follows a first request for a preliminary ruling, made on 28 June 2024 and declared manifestly inadmissible by order of 5 May 2025, Schoger (C‑460/24, EU:C:2025:346), on the ground that it did not meet the requirements laid down in Article 94(a) and (c) of the Rules of Procedure of the Court of Justice.

21      In paragraphs 20 to 22 of that order, the Court held, first, that the statement of the subject matter and the relevant facts of the dispute in the main proceedings was too brief and incomplete to enable the Court to exercise its power to give a preliminary ruling. Secondly, in paragraphs 23 to 27 of that order, the Court took the view that there was no objective and consistent evidence making it possible to determine whether there was a link between the specific dispute pending before the referring court and the provisions of EU law whose interpretation was sought. The Court noted, in particular, that the referring court had not stated the reasons why all the elements of the notices of assessment which had been submitted to it in the dispute in the main proceedings, irrespective of any challenges, should have been the subject of an examination by that court of its own motion in the light of the law on State aid.

22      Following the Court’s request to that effect (order of 5 May 2025, Schoger, C‑460/24, EU:C:2025:346, paragraph 29), the referring court provided, in the present request for a preliminary ruling, information additional to that which it had provided in its first request, referred to in paragraph 20 of the present judgment.

23      First, the referring court now clearly states the procedural steps which preceded its bringing of proceedings and explains why it is required to rule on the exemption at issue.

24      Secondly, that court specifies the object of its review when hearing a complaint that disputes VAT notices of assessment. It states in particular, on the basis of the national procedural provisions and the national case-law which interpreted them, that it is empowered to substitute its assessment for that of the tax authority. Its jurisdiction as a court of unlimited jurisdiction, which allows it to rule on all the questions of law and fact relating to the complaint before it, is not limited to the consideration of that complaint. It is for that court to examine of its own motion all the questions arising from the notices of assessment at issue in the main proceedings, including the question of the compatibility of the exemption at issue with the law on State aid, irrespective of any challenges in that regard in the context of the dispute in the main proceedings and even if that were to result in the rights of the persons concerned being altered to their disadvantage.

25      While ***X*** and the Austrian Government dispute the admissibility of this request for a preliminary ruling and ***X*** also points out that, in that context, such an examination by that court of its own motion risks deterring taxpayers from asserting their rights before the national courts, those parties do not call into question the explanations of the referring court as to the extent of its jurisdiction. Furthermore, it should be recalled that, in the context of the procedure established in Article 267 TFEU, the national court defines the legislative context under its responsibility and it is not a matter for this Court to determine the accuracy thereof (see, to that effect, judgment of 15 May 2003, Salzmann, C‑300/01, EU:C:2003:283, paragraph 31 and the case-law cited).

26      The referring court also clearly explains why its question relates to the provisions of the FEU Treaty on State aid and not to the VAT Directive, which the UStG seeks to transpose into Austrian law. It specifies the reasons for the failure, by the exemption at issue, to comply with the requirements laid down by that directive in order to establish exemptions from VAT, on the basis, inter alia, of national legal literature. It infers from that that an interpretation of the UStG in conformity with the VAT Directive would be contra legem and therefore precluded, before adding that it could not directly impose that directive on an individual in order to depart from the application of the exemption at issue.

27      As regards the argument of ***X*** that an examination of its own motion of the classification of the exemption at issue as ‘State aid’ would call into question the exclusive competences of the European Commission concerning State aid, it should be noted that those competences relate solely to the assessment of the compatibility of a measure classified as ‘State aid’ with the internal market, whereas the national courts are fully empowered, initially, to interpret the concept of ‘State aid’, and with the possibility, in the event of doubt, of referring the matter to the Court of Justice for a preliminary ruling, such as that submitted by the referring court (see, to that effect, judgments of 22 March 1977, Steinike & Weinlig, 78/76, EU:C:1977:52, paragraph 14, and of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraph 50). It must be added that the involvement of national courts is the result of the direct effect of the prohibition on implementation laid down in the last sentence of Article 108(3) TFEU, which extends, inter alia, to all aid which has been implemented without being notified to the Commission (see, to that effect, judgment of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraph 39 and the case-law cited).

28      Similarly, in so far as, first, it is for the national court alone to define the factual parameters of the dispute which gave rise to its questions and it is not the task of the Court of Justice to give a ruling on that court’s assessment of the facts (judgment of 6 November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph 31 and the case-law cited) and where, secondly, the referring court sets out the invariable nature of the application of the exemption at issue by ***X***, it is irrelevant that, as the Austrian Government maintains, without, moreover, substantiating it, an exemption other than the exemption at issue was applied in the context of the dispute in the main proceedings, which prevented the application of the exemption at issue.

29      Lastly, the argument put forward by the Austrian Government and, incidentally, by ***X***, casting doubt on the existence of an advantage which the application of the exemption at issue conferred on that company, falls within the substantive assessment of the existence of State aid, in respect of which the referring court seeks a ruling from the Court, and not of the admissibility of the present request for a preliminary ruling. As for the alleged lack of details provided by the referring court to enable the assessment of some of the conditions required for a measure to be classified as ‘State aid’, it should be recalled that where the description of the factual and legal context does indeed appear inadequate in some respects, thus preventing the Court from replying to certain of the questions raised with the precision desired, it continues to be possible for it to give a ruling although it will leave open certain aspects of the questions raised (see, to that effect, judgment of 18 June 1998, Corsica Ferries France, C‑266/96, EU:C:1998:306, paragraph 25).

30      The reference for a preliminary ruling is therefore admissible.

 Consideration of the question referred

31      By its question, the referring court asks whether Article 107(1) TFEU must be interpreted as meaning that the exemption at issue constitutes State aid within the meaning of that provision.

32      In order to give a useful answer to the referring court, it is necessary to identify precisely the scope of that exemption.

33      That exemption is set out in the second sentence of Paragraph 6(1)(28) of the UStG which states that ‘that [exemption] shall also apply in respect of other services provided between undertakings primarily carrying out transactions relating to the banking, insurance, or pension fund sector, provided that those services are directly used to carry out those exempt transactions, and the making available of the staff of those undertakings to the groupings [of undertakings primarily carrying out transactions relating to that sector]’.

34      The exemption at issue was repealed with effect from 1 January 2025, but was in force during the tax period at issue.

35      It is apparent from the documents before the Court that, in practice, the undertakings to which the exemption at issue applied, namely ‘undertakings primarily carrying out transactions relating to the banking, insurance, or pension fund sector’, were understood broadly and also included undertakings which did not have a banking licence. Furthermore, in view of the difficulty of determining the use of the services provided by those undertakings ‘to carry out [the] exempt transactions [relating to the banking, insurance or pension fund sector]’, it was common practice of the Austrian tax authorities, at least during the tax period at issue, to exempt all the services provided between the undertakings concerned which were not already exempt under another provision of the UStG. The referring court mentions, by way of example, IT services, consultancy services or also restaurant or childcare services.

36      Accordingly, it must be considered that, by its question, the referring court asks, in essence, whether Article 107(1) TFEU must be interpreted as meaning that an exemption from VAT of services, which are not otherwise exempt, provided between undertakings primarily carrying out transactions relating to the banking, insurance or pension fund sector, constitutes State aid within the meaning of that provision.

37      The classification of a national measure as ‘State aid’ requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, that intervention must confer a selective advantage on the beneficiary. Thirdly, it must distort or threaten to distort competition. Fourthly, it must be liable to affect trade between the Member States (judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 66 and the case-law cited).

38      First, as regards the State origin of the exemption at issue, it should be noted that that exemption does not fall within any of the exemptions exhaustively provided for by the VAT Directive and which must be interpreted strictly (see, to that effect, judgment of 2 July 2020, Blackrock Investment Management (UK), C‑231/19, EU:C:2020:513, paragraph 22 and the case-law cited). Indeed, Article 135 of the VAT Directive, which provides for the only exemption allowed to undertakings in the banking, insurance and pension fund sectors (see, to that effect, judgment of 13 March 2014, ATP PensionService, C‑464/12, EU:C:2014:139, paragraph 59), refers only to certain transactions carried out by those undertakings, such as insurance and reinsurance transactions or the granting, negotiation and management of credit or the management of special investment funds, of which the transactions covered by the exemption at issue, as implemented by the Austrian tax administration, do not form part.

39      It follows that the exemption at issue is imputable to the Austrian State. A tax exemption established by a Member State is imputable to the European Union, and not to that State, only if it merely reproduces a clear and precise obligation laid down in a directive (see, to that effect, judgment of 23 April 2009, Puffer, C‑460/07, EU:C:2009:254, paragraph 70), which is not the case here.

40      As regards the condition relating to the granting of the exemption at issue through State resources, which must also be satisfied in order to be classified as ‘State aid’ (see, to that effect, judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 24 and the case-law cited), suffice it to recall that, according to settled case-law, the definition of ‘aid’ is more general than that of a ‘subsidy’ because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense, are similar in character and have the same effect. Consequently, a measure by which the public authorities grant certain undertakings a tax exemption which, although not involving the transfer of State resources, places the recipients of the exemption in a more favourable financial position than that of other taxpayers amounts to State aid, within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraphs 45 and 46 and the case-law cited).

41      The impact on State resources is not called into question by the alleged higher tax burden on ***X*** due to the absence of any right of deduction attached to the exemption at issue.

42      It is true that the existence of an exemption from VAT, such as the exemption at issue, precludes the right to deduct any input VAT paid, in accordance with Article 168 of the VAT Directive, which limits the deduction of VAT paid on goods and services to cases where those goods and services are used for the purposes of taxable transactions, and Paragraph 12(3)(2) of the UStG, which transposed Article 168 into Austrian law. In practice, that means that the VAT paid by ***X*** on any goods or services used to provide exempt services is borne by ***X***.

43      Nonetheless, first, the examination of the granting of a measure by means of State resources is assessed by definition primarily at the level of the State concerned and its budget and not from the individual situation of the beneficiary of that measure. In the present case, it must be ascertained whether the tax revenue of the State is decreasing. Secondly, and in any event, the existence of State resources is interpreted as including cases where there is a sufficiently concrete economic risk of burdens being imposed on the State budget (judgment of 8 June 2023, Prestige and Limousine, C‑50/21, EU:C:2023:448, paragraph 54 and the case-law cited). Accordingly, it is the potential to reduce that revenue that is taken into account and not its actual reduction.

44      In the present case, it is apparent from the request for a preliminary ruling that, in the travaux préparatoires of the law which provided for the repeal of the exemption at issue with effect from 1 January 2025, the Austrian legislature itself highlighted the additional VAT revenue for the Republic of Austria resulting from that repeal in respect of 2025 and subsequent years.

45      Secondly, so far as concerns the advantage which the application of the exemption at issue would procure and the selective nature of that advantage, it must be recalled that the criterion of advantage is understood broadly by the case-law, as including all measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions (judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 83 and the case-law cited).

46      Furthermore, the Court has held that, where a tax aid scheme applies on an annual or periodic basis, the Commission need only demonstrate that the aid scheme is such as to favour its beneficiaries, by ascertaining that the scheme, taken as a whole, is, given its particular characteristics, capable of resulting, at the time of its adoption, in the tax liability being lower than it would have been if the general tax regime had been applied, irrespective of whether, in view of those characteristics, that institution is not in a position to determine, in advance for each tax year, the precise level of taxation for that tax year. It is at the stage of the possible recovery of the aid granted on the basis of that aid scheme that the Commission is required to determine whether that scheme has actually conferred an advantage on its beneficiaries taken individually, since such recovery requires the exact amount of aid actually enjoyed by the beneficiaries in each tax year to be established (judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraphs 87 and 88).

47      As regards an exemption from VAT such as the exemption at issue, it should be considered that its application is capable of procuring an advantage for the undertakings providing the services covered by that exemption, which are, in the absence of information to the contrary in the documents before the Court, legally the beneficiaries of that exemption. Those undertakings have an advantage over undertakings to which the exemption at issue does not apply, and which are therefore required to charge VAT, so far as concerns the supply of the same services to undertakings which, as in the present case, are not entitled to deduct input VAT, in view of the exemption of many of their services under Article 135 of the VAT Directive and the UStG.

48      By contrast, in the light of the case-law set out in paragraph 46 above, it is not necessary, at the stage of classification as ‘aid’ and in the case of a potential tax aid scheme such as that at issue in the main proceedings, to ascertain, in each specific case, the effect of being unable to deduct the input VAT which is connected with the exemption at issue, and thus to ensure that the reduction in the tax burden resulting from that exemption is not offset, or even overcompensated, by the tax burden linked to the VAT paid on the goods and services used to provide the exempt services, to the point of being disadvantageous for the undertakings concerned. That is all the more so since such a set-off and its extent depend on the occurrence of random and variable circumstances depending on the taxpayers, in particular, in the present case, the use of goods and services subject to VAT and the extent of that use.

49      The considerations set out in the preceding paragraph apply both where the Commission is responsible for ruling on the existence of aid, as was the situation in the case which gave rise to the judgment of 4 March 2021, Commission v Fútbol Club Barcelona (C‑362/19 P, EU:C:2021:169), and where the national court must determine the existence of aid, as in the present case, since the justification put forward by the Court in that judgment is also applicable to the national court. It is a question, in both cases, of preventing Member States which implement aid schemes without prior notification, in breach of their obligation under Article 108(3) TFEU, from being favoured over those which comply with that obligation, which would be the case if the Commission or the national court were required to verify, for the purpose of assessing the existence of an aid scheme, on the basis of data collected after the adoption of that scheme, whether the advantage has actually materialised or has been offset by the disadvantages (see, to that effect, judgment of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 93).

50      Furthermore, in accordance with the case-law and in order to respond to the Austrian Government’s argument that the exemption at issue offsets specific charges due to the structural disadvantages imposed on some of the undertakings concerned, it must be borne in mind that the fact that a Member State seeks to approximate, by unilateral measures, the conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as aid (see, to that effect, judgment of 3 March 2005, Heiser, C‑172/03, EU:C:2005:130, paragraph 54 and the case-law cited). In any event, in so far as the Austrian Government states that small banks, insurance and pension funds and groups, associations and cooperatives organised in a decentralised manner which cannot form a VAT group are affected by those structural disadvantages, it suffices to note that the scope of the exemption at issue is in no way limited to those categories of undertakings and that, in the present case, ***X*** is specifically part of a VAT group as the parent company.

51      As for the condition relating to the selective character of the advantage granted by the measure concerned to its beneficiaries, the Court has consistently held that, in order to classify a tax measure such as the one at issue in the main proceedings as ‘selective’, it is necessary to identify, initially, the reference framework, that is to say, the ‘normal’ tax regime applicable in the Member State concerned, and to demonstrate, thereafter, that the tax measure at issue is a derogation from that reference framework, in so far as it differentiates between operators who, in the light of the objective pursued by that reference framework, are in a comparable factual and legal situation. The concept of ‘State aid’ does not, however, cover measures that differentiate between undertakings which, in the light of the objective pursued by the legal regime concerned, are in a comparable factual and legal situation, and that are, therefore, a priori selective, where the Member State concerned is able to demonstrate, subsequently, that that differentiation is justified, in the sense that it flows from the nature or general structure of the system of which those measures form part (judgment of 29 April 2025, Prezydent Miasta Mielca, C‑453/23, EU:C:2025:285, paragraph 44 and the case-law cited).

52      The interested parties and the referring court agree that, in the present case, the reference framework consists of the general system of charging VAT, that is to say, a harmonised reference framework reducing the fiscal autonomy of the Member States.

53      In the present case, the derogation from that harmonised reference framework lies in the fact that, pursuant to the second sentence of Paragraph 6(1)(28) of the UStG, which has no basis in the VAT Directive, services supplied by a particular category of undertakings to the same category of undertakings, namely ‘undertakings primarily carrying out transactions relating to the banking, insurance or pension fund sector’, are exempt from VAT, whereas those services are subject to VAT when they are supplied by undertakings not falling within that category. The beneficiary undertakings of the exemption at issue are, in the case of the services concerned, namely all those – which are not otherwise exempt – provided to that type of undertaking, such as those referred to, by way of example, in paragraph 35 above, in the same situation as all the other suppliers who provide those services.

54      As is apparent from paragraphs 35 and 38 above, the beneficiaries of the exemption at issue are understood as not including only the undertakings with a banking licence and subject on that basis to specific rules and constraints, a fortiori in the case of transactions which do not necessarily have a link with banking transactions, such as those at issue in the main proceedings. In addition, the fact that those beneficiaries do not have the right to deduct the VAT paid on the input transactions likewise does not enable them to be distinguished from the other suppliers of services concerned, since that absence of the right to deduct is specifically linked to the exemption at issue. A legal consequence which follows for the service provider beneficiaries of the exemption at issue only from the application of the measure under examination is not such as to show that they are in a different situation from that of service providers who are not beneficiaries of that measure.

55      As regards the justification for the differentiation concerned by the nature or general scheme of the system of which the exemption at issue forms part, it should be borne in mind that, according to recital 5 of the VAT Directive, ‘a VAT system achieves the highest degree of simplicity and of neutrality when the tax is levied in as general a manner as possible and when its scope covers all stages of production and distribution, as well as the supply of services’.

56      Accordingly, even though it will be for the referring court to ascertain whether there is any justification in the light of all the relevant factors of the dispute before it, the preservation of fiscal neutrality, the prevention of overlapping taxes and the administrative simplification put forward by the Austrian Government in its observations do not appear capable of justifying the differentiation at issue. Such justifications are associated by the VAT Directive with the collection of VAT in as general a manner as possible and not with the possibility of providing for exemptions, it being noted, moreover, that, as observed in paragraph 38 above, none of the VAT exemptions exhaustively provided for by that directive corresponds to the exemption at issue.

57      It follows that the condition relating to the selective nature of the advantage granted by the measure concerned to its beneficiaries is satisfied by the exemption at issue.

58      Thirdly, as regards the condition that the measure concerned must distort or threaten to distort competition, it is necessary, in accordance with the wording of Article 107(1) TFEU, not to establish an actual distortion of competition, but only to examine whether that measure is liable to distort competition (see, to that effect, judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 65 and the case-law cited). Such a distortion of competition results, in the present case, from the advantage enjoyed by the exempt undertakings, and, moreover, the corporate customers, all of which operate in a liberalised sector. According to settled case-law, an advantage granted to an undertaking operating in a competitive sector may serve to determine that the measure has a real or potential effect on competition (see, to that effect, judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 142 and the case-law cited). In the present case, subject to verification by the referring court, in the absence of specific rules or constraints on the undertakings providing the services at issue, those services may be regarded as being provided in a competitive environment.

59      Fourthly, as regards the condition that the measure concerned must be liable to affect trade between the Member States, it follows in the present case from the advantage procured by the exemption at issue. The Court has consistently held that when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (judgment of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 66 and the case-law cited).

60      The fact that the exemption at issue also benefits taxable persons established in other Member States is not such as to call into question the fact that it is liable to affect trade between the Member States. All the undertakings providing services to undertakings primarily carrying out transactions relating to the banking, insurance or pension fund sector and which do not benefit from the exemption at issue, whether they are established in Austria or in other Member States, have less chance of providing the services at issue (see, to that effect, judgment of 19 September 2000, Germany v Commission, C‑156/98, EU:C:2000:467, paragraphs 34 and 35).

61      In the light of all of the foregoing, the answer to the question referred for a preliminary ruling is that Article 107(1) TFEU must be interpreted as meaning that an exemption from VAT of services, which are not otherwise exempt, provided between undertakings primarily carrying out transactions relating to the banking, insurance or pension fund sector, constitutes State aid within the meaning of that provision.

 Limitation of the temporal effects of the present judgment

62      The Austrian Government requests that the temporal effects of the present judgment be limited to events subsequent to the date of the judgment. The finding of the existence of State aid has significant consequences for the Austrian banking and insurance sector, since all the transactions exempted under the exemption at issue must be revalued, which is, moreover, liable to give rise to vast numbers of cases before the national courts. In addition, the operators concerned acted in good faith and in compliance with the relevant national legislation, which has been in force for decades.

63      It should be recalled that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to rules of EU law clarifies and defines the meaning and scope of those rules as they must be or ought to have been understood and applied from the time of their entry into force. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties, with those criteria being cumulative (judgment of 22 June 2021, Latvijas Republikas Saeima (Penalty points), C‑439/19, EU:C:2021:504, paragraphs 132 and 136 and the case-law cited).

64      Accordingly, the Court has taken that step only in quite specific circumstances, notably where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the European Commission may even have contributed (judgment of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 61 and the case-law cited).

65      As regards the criterion relating to the existence of a risk of serious economic repercussions, it should be recalled that it is for the Member State seeking to limit the temporal effects of a judgment on a preliminary ruling to produce, before the Court, figures showing the risk of such repercussions (judgment of 20 December 2017, Erzeugerorganisation Tiefkühlgemüse, C‑516/16, EU:C:2017:1011, paragraph 91 and the case-law cited).

66      In the present case, the Austrian Government merely refers to significant consequences, without any details relating to the extent of the services between undertakings in the banking, insurance or pension fund sector, benefiting from the exemption at issue, and thus of the potential impact of an obligation to pay VAT relating to those services on that sector.

67      In any event, and without prejudice to the competences of the Commission concerning State aid, tax periods which have been definitively closed should not be reopened in national court proceedings following the present judgment (see, to that effect, judgment of 21 September 2017, DNB Banka, C‑326/15, EU:C:2017:719, paragraph 40 and the case-law cited). The interpretation which the Court gives to a rule of EU law, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, may and must be applied to legal relationships which arose and were established before the judgment ruling on the request for a preliminary ruling where, in other respects, the conditions for bringing a dispute relating to the application of that rule before the national courts having jurisdiction, inter alia as regards time limits for bringing proceedings, are satisfied (see, to that effect, judgment of 22 September 2016, Microsoft Mobile Sales International and Others, C‑110/15, EU:C:2016:717, paragraph 59 and the case-law cited).

68      In those circumstances, it must be held that the criterion relating to the risk of serious difficulties is not fulfilled, with the result that it is not necessary to ascertain whether the criterion relating to the good faith of those concerned is fulfilled.

69      There is no need therefore to limit the temporal effects of the present judgment.

 Costs

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

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

Article 107(1) TFEU must be interpreted as meaning that an exemption from value added tax of services, which are not otherwise exempt, provided between undertakings primarily carrying out transactions relating to the banking, insurance or pension fund sector, constitutes State aid within the meaning of that provision.

[Signatures]

*      Language of the case: German.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.