Order of the Court (Eighth Chamber) of 21 March 2013

1. Harmonisation of fiscal legislationCommon system of value added taxChargeable event and chargeability of the taxSupply of goods or servicesEstablishment of a building right in order to erect a building by way of consideration for construction services of real property which are to form part of that buildingTax on those construction services chargeable as from the establishment of the building rightLawfulnessConditionVerification a matter for the national courtTransaction carried out by persons who are neither taxable nor liable for paymentNo effect (Council Directive 2006/112, Arts 63 and 65) (see paras 35, operative part 1)

2. Harmonisation of fiscal legislationCommon system of value added taxTaxable amountSupply of goods or servicesTransaction between persons having tiesOption for the Member States to use, as the taxable amount, the open market value of the transactionConsideration for a transaction between persons not having ties being made up entirely of goods or servicesNational legislation providing that the taxable amount is the open market value of the goods or services suppliedUnlawful (Council Directive 2006/112, Arts 73 and 80) (see para. 44, operative part 2)

Re:

Request for a preliminary ruling — Administrativen sad — Varna — Interpretation of Articles 62(1), 63, 73 and 80 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation providing that any supply of goods or services the consideration of which in whole or in part consists of goods or services is considered to represent two related supplies of goods or services — Legislation fixing the date of the chargeable event for VAT for related exchange transactions as being the date of the chargeable event in respect of the first supply effected even though the consideration for that supply has not yet been provided — Natural persons who acquired a building right in favour of a company with a view to construction of a residential building in consideration for the obligation on the part of the company to construct the building using its own resources and to hand over to those who had acquired the building right 25% of the ownership of the total built area within 12 months of issue of the building permit — Determination of the basis of assessment — Applicability of the concept of chargeable event to exempted transactions even if they are carried out by a person who has the status neither of a taxable person nor of a person liable for payment.

Operative part:

1. Articles 63 and 65 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the case in the main proceedings, where a building right is established in favour of a company with a view to the construction of a building of which it is to own 75% of the total built area, in consideration for the construction of the remaining 25%, which that company undertakes to deliver in a fully completed state to the persons who established that building right, they do not preclude the value added tax on the supply of the construction services from becoming chargeable from the moment the building right is established, that is to say before those services are supplied, in so far as, when that right was established, all the relevant elements of that future supply of services are already known and therefore, in particular, the services at issue are designated in detail, and the value of that right may be expressed in financial terms, which it is for the referring court to ascertain. The fact that the establishment of that building right is an exempted transaction carried out by persons who are not deemed taxable persons or persons liable for payment within the meaning of that directive has no effect in this respect.

2. In circumstances such as those of the case in the main proceedings, in which the transaction is not carried out by linked parties for the purposes of Article 80(1) of Directive 2006/112, which it is nevertheless for the referring court to ascertain, Articles 73 and 80 of that directive must be interpreted as meaning that they preclude a national provision, such as that at issue in the main proceedings, under which, where the consideration for a supply of goods or services is entirely in the form of goods or services, the basis of assessment for the supply is, in any event, to be the open market value of the goods or services supplied.