CJEU – Recent Developments in Value Added Tax 2016

S. 163When is a Public Activity an Economic Activity?

Oskar Henkow

1. S. 164Introduction

One question discussed this year in the case law of the Court of Justice of the European Union (CJEU) is the question of when a public entity is engaged in economic activities “for remuneration” as required by Art. 9 of the VAT Directive. We now have more clarity of when public activities are economic activities although there are contradictions in the case law, which will be discussed in this contribution. If we add to this that the Court, in the autumn of 2015, made both a u-turn in its assessment of non-public entities – these can now be covered by Art. 13 of the VAT Directive (excluding certain public bodies from the scope of VAT when acting as such) contrary to what could be inferred from previous case law – and ruled, for the first time, on the issue of whether the state is one or several taxable persons, we have a completely new situation for many state, municipal and local authorities.

In this contribution, I will look at these developments, with a focus on the changes brought about by this year’s case law. In Section 2 state activities as economic activities are discussed, in Section 3 private law ent...