Case C‑276/14

Gmina Wrocław

v

Minister Finansów

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny)

‛Reference for a preliminary ruling — Value added tax — Directive 2006/112/EC — Article 9(1) — Article 13(1) — Taxable persons — Interpretation of the word ‘independently’ — Municipal body — Economic activities carried out by an organisational entity of a municipality other than as a public authority — Whether such an entity may be regarded as a ‘taxable person’ within the meaning of the provisions of Directive 2006/112 — Articles 4(2) and 5(3) TEU’

Summary — Judgment of the Court (Grand Chamber), 29 September 2015

1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Meaning — Independent and uniform interpretation

   (Council Directive 2006/112, Art. 9(1))

2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable persons — Meaning — Bodies governed by public law not carrying out an economic activity independently — Not included

   (Council Directive 2006/112, Art. 9(1))

3. Harmonisation of fiscal legislation — Common system of value added tax — Economic activities carried out independently within the meaning of Article 9 of Directive 2006/112 — Criteria for assessment

   (Council Directive 2006/112, Art. 9(1))

4. Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments by way of interpretation — Retroactive effect — Limitation by the Court — Conditions

   (Art. 267 TFEU)

1.  See the text of the decision.

   (see paras 26, 27)

2.  Article 9(1) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that bodies governed by public law cannot be regarded as taxable persons for the purposes of value added tax in so far as they do not satisfy the criterion of independence set out in that provision.

   Municipal budgetary entities which carry out the economic activities which are entrusted to them in the name and on behalf of a municipality, which do not bear liability for damage caused by those activities — that liability being borne solely by that municipality — and which do not bear the economic risk associated with carrying out those activities since they do not own their own property, do not generate their own earnings and do not bear the costs of those activities — any earnings generated being assigned to the budget of the municipality and expenses being directly attributed to the budget of that municipality — do not satisfy the criterion of independence for the purposes of Article 9(1) of Directive 2006/112 and therefore cannot be regarded as taxable persons.

   (see paras 37, 38, 42, operative part)

3.  See the text of the decision.

   (see paras 33, 34)

4.  See the text of the decision.

   (see paras 44-46)