Case C‑256/14

Lisboagás GDL — Sociedade Distribuidora de Gás Natural de Lisboa SA

v

Autoridade Tributária e Aduaneira

(Request for a preliminary ruling
from the Tribunal Arbitral Tributário
(Centro de Arbitragem Administrativa — CAAD)

(References for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Articles 9, 73, 78, first paragraph, point (a), and 79, first paragraph, point (c) — Taxable amount — Inclusion of the amount of municipal land use taxes paid by the company holding the concession for the gas distribution network in the taxable amount for VAT applicable to supplies of services made by that company to the company responsible for marketing the gas)

Summary — Judgment of the Court (Eighth Chamber), 11 June 2015

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

(Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94(c))

2.        Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Service provided by the company holding the gas distribution concession to the company responsible for marketing the gas — Amount of taxes paid to municipalities by the company holding the gas distribution concession in return for the use of publicly-owned property belonging to those municipalities  — Included

(Council Directive 2006/112, Arts 9(1), 73, 78, first para., (a) and 79, first para., (c))

1.        See the text of the decision.

(see paras 24-26)

2.        Articles 9(1) and 73, point (a) of the first paragraph of Article 78 and point (c) of the first paragraph of Article 79 of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the amount of taxes which is paid to municipalities by the company holding the gas distribution concession in return for the use of publicly-owned property belonging to those municipalities and which is then passed on by that company to another company responsible for marketing the gas, then by that company on to the final consumers, must be included in the taxable amount for value added tax applicable to the supply of services effected by the first company to the second company under Article 73 of that directive.

It is not the land use taxes as such which are passed on to the company responsible for marketing the gas, but rather the price of using publicly-owned municipal property. Consequently, the amount of land use taxes constitutes part of the consideration received by the company holding the gas distribution concession from the company responsible for marketing the gas for its supply of services and therefore constitutes an ‘economic activity’ within the meaning of Article 9(1) of Directive 2006/112.

(see paras 33, 34, 38, operative part)