Judgment of the Court (Third Chamber) of 15 April 2021 (request for a preliminary ruling from the Tribunal d’arrondissement — Luxembourg) — EQ v Administration de l’Enregistrement, des Domaines et de la TVA

(Case C-846/19) (1)

(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Economic activity - Supply of services for consideration - Article 2(1)(c) and Article 9(1) - Exemptions - Article 132(1)(g) - Supply of services closely linked to welfare and social security work - Services performed by a lawyer under powers of representation for the protection of adults lacking legal capacity - Body recognised as being devoted to social wellbeing)

(2021/C 217/15)

Language of the case: French

Referring court

Tribunal d’arrondissement

Parties to the main proceedings

Applicant: EQ

Defendant: Administration de l’Enregistrement, des Domaines et de la TVA

Operative part of the judgment

Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters, the performance of which is entrusted to the person supplying services by a judicial authority in pursuance of the law and remuneration for which is fixed by the same authority as a fixed amount or is based on a case-by-case assessment by taking into account in particular the financial situation of the person lacking legal capacity — and such remuneration may moreover be borne by the State in the event that that person is indigent — where that supply is for consideration, the person supplying services obtains income therefrom on a continuing basis and the overall amount of the compensation for that activity is determined on the basis of criteria intended to ensure that the operating costs incurred by the person supplying services are covered, constitutes an economic activity within the meaning of that provision.

Article 132(1)(g) of Directive 2006/112 must be interpreted as meaning, first, that the supply of services for the benefit of adults lacking legal capacity and intended to protect them in civil matters constitutes a ‘supply of services closely linked to welfare and social security work’, and, secondly, that it is not excluded that a lawyer supplying such services of a social nature may benefit, for the purposes of the business he or she operates and within the limits of those supplies, from recognition as a body devoted to social wellbeing, and such recognition must however necessarily be granted by a judicial authority only if the Member State concerned, by refusing that recognition, exceeded the limits of the discretion which it enjoys in that regard.

The principle of the protection of legitimate expectations does not preclude the tax authority from imposing value added tax (VAT) on certain transactions relating to a previous period, in a situation where that authority has, over a number of years, accepted the taxable person’s VAT returns which do not include transactions of the same kind in its taxable transactions and where the taxable person is unable to recover the VAT due from those who have remunerated those transactions, with the remuneration already paid then deemed to include this VAT already.

(1) OJ C 54, 17.2.2020.