C-249/17 Ryanair

JUDGMENT OF THE COURT (First Chamber)

17 October 2018 ( *1 )

(Reference for a preliminary ruling — Common system of value added tax (VAT) — Concept of taxable person — Holding company — Deduction of input tax — Expenditure for consultancy services received for the purpose of the acquisition of another company’s shares — Acquiring company’s intention to provide management services to the target company — Those services not provided — Right to deduct VAT charged on the services received)

In Case C‑249/17,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 8 May 2017, received at the Court on 12 May 2017, in the proceedings

Ryanair Ltd

v

The Revenue Commissioners,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, Vice President, acting as President of the First Chamber, J.-C. Bonichot, A. Arabadjiev, E. Regan and C.G. Fernlund (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 14 March 2018,

after considering the observations submitted on behalf of:

Ryanair Ltd, by T. Mc Namara, Solicitor, R. Aylward, Barrister-at-Law, and M. Hayden, Senior Counsel,

The Revenue Commissioners, by M. Browne and L. Williams and by A. Joyce, acting as Agents,

Ireland, by M. Browne, L. Williams and A. Joyce, acting as Agents, and S. Davey, Solicitor, Ú. Tighe, Barrister-at-Law, and G. Clohessy, Senior Counsel,

the European Commission, by N. Gossement and by R. Lyal, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 May 2018,

gives the following

Judgment

Legal context and the dispute

1This reference for a preliminary ruling concerns the interpretation of Articles 4 and 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, ‘the Sixth Directive’).

2The request has been made in proceedings between Ryanair Ltd and the Revenue Commissioners (Ireland) concerning the latter’s refusal to grant Ryanair the deduction of input value added tax (VAT) relating to consultancy services provided to it in the context of a bid to takeover another company.

Legal context

3Article 2(1) of the Sixth Directive applies VAT to the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such.

4Article 4(1) and (2) of that directive provides:

‘1. “Taxable person” shall mean any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity.

2. The economic activities referred to in paragraph 1 shall comprise all activities of producers, traders and persons supplying services including mining and agricultural activities and activities of the professions. The exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis shall also be considered an economic activity.’

5Pursuant to the first subparagraph of Article 10(2) of the Sixth Directive, ‘the chargeable event shall occur and the tax shall become chargeable when the goods are delivered or the services are performed’.

6Article 17 of that directive, entitled ‘Origin and scope of the right to deduct’ provides, in paragraph 1, that the right to deduct arises at the time when the deductible tax becomes chargeable.

7Article 17(2)(a) of the Sixth Directive states that in so far as the goods and services are used for the purposes of his taxable transactions, the taxable person is entitled to deduct from the tax which he is liable to pay VAT due or paid in respect of goods or services supplied or to be supplied to him by another taxable person.

The dispute in the main proceedings and the questions referred for a preliminary ruling

8In the course of 2006, the Ryanair launched a takeover bid for all the shares of another airline (‘the target company’). It incurred, on that occasion, expenditure relating to consultancy services and other services in connection with the planned acquisition (‘the services at issue’). Nevertheless, it was not possible to carry out that transaction fully for reasons relating to compliance with competition law, so that Ryanair was able to acquire only a part of the share capital of the target company.

9Ryanair requested the deduction of input VAT paid on that expenditure, stating that its intention, after it gained control of the target company, had been to involve itself in its management by providing management services subject to VAT.

10The tax authority having refused that deduction, Ryanair brought an appeal before the Tax Appeals Commission (Ireland), which dismissed the appeal. Ryanair brought a second appeal before the Circuit Court (Ireland), which took the same position as the tax authority. The Circuit Court nevertheless referred the case to the High Court (Ireland) for an opinion. After that court upheld the decision of the Circuit Court, Ryanair appealed to the Supreme Court (Ireland).

11The referring court asks, in essence, about the relationship between the judgment of 14 February 1985, Rompelman (268/83, EU:C:1985:74), on the right to deduct VAT paid in the course of the preparation of an economic activity, and the judgment of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495), on the right of a holding company to deduct the VAT on input services provided to it in the context of the acquisition of shares in its subsidiaries.

12In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Can a future intention to provide management services to a takeover target, in the event that the takeover is successful, be sufficient to establish that the potential acquirer is engaged in economic activity for the purposes of Article 4 of the [Sixth Directive] so that VAT charged to the potential acquirer on goods or services provided for the purposes of seeking to progress the relevant acquisition can potentially be considered as VAT on an input to the intended economic activity of providing such management services; and

Can there be a sufficient “direct and immediate link”, as identified as a requirement by the Court of Justice of the European Union [in the judgment of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495)], between professional services rendered in the context of such a potential takeover and output, being the potential provision of management to the acquisition target in the event that the takeover is successful, so as to permit a deduction to be made in respect of the VAT payable on those professional services?’

Consideration of the questions referred

13By its questions, which should be examined together, the referring court asks, in essence, whether Articles 4 and 17 of the Sixth Directive must be interpreted as meaning that they confer on a company, such as that at issue in the main proceedings, which intends to acquire all the shares of another company in order to pursue an economic activity consisting in the provision of management services subject to VAT to the latter company, the right to deduct input VAT paid on expenditure relating to consultancy services provided in the context of a takeover bid, even if ultimately that economic activity was not carried out.

14As a preliminary point, it must be noted, first, that Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), which entered into force on 1 January 2007, repealed the Sixth Directive without making material changes compared with that earlier directive. Accordingly, since the relevant provisions of the Sixth Directive have an essentially identical scope to those of Directive 2006/112, the Court’s case-law pertaining to the latter directive is also applicable to the Sixth Directive.

15In order to answer the questions asked, it is necessary to determine whether a company which intends to acquire all the shares of another company in order to pursue an economic activity consisting in the provision of management services subject to VAT to that latter company may be considered a taxable person within the meaning of Article 4 of the Sixth Directive and, if that be the case, first, whether it acted as a taxable person when the services at issue were provided to it and, second, whether and to what extent the input VAT paid on the expenditure incurred for such provision of services is deductible.

16It must be noted, in the first place, that a company whose sole object is to acquire shares in other companies without direct or indirect involvement in the management of those companies neither has the status of taxable person within the meaning of Article 4 of the Sixth Directive nor the right to deduct tax under Article 17 of that directive. The mere acquisition and holding of shares in a company do not, in themselves, amount to an economic activity within the meaning of the Sixth Directive, conferring on the holder the status of a taxable person, since the mere acquisition of financial holdings in other undertakings does not amount to the exploitation of property for the purpose of obtaining income therefrom on a continuing basis. Any dividend yielded by that holding is merely the result of ownership of the property (judgments of 30 May 2013, X, C‑651/11, EU:C:2013:346, paragraph 36, and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 19 and the case-law cited).

17It is otherwise where the holding is accompanied by direct or indirect involvement in the management of the companies in which the holding has been acquired, if that entails carrying out transactions which are subject to VAT, such as the supply of administrative, financial, commercial and technical services, without prejudice to the rights held by the holding company as shareholder (see, to that effect, judgments of 30 May 2013, X, C‑651/11, EU:C:2013:346, paragraph 37, and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraphs 20 and 21 and the case-law cited).

18Furthermore, since economic activities within the meaning of the Sixth Directive may consist of several consecutive transactions, the preparatory acts must themselves be treated as constituting economic activity (judgment of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 15 and the case-law cited). Thus, any person with the intention, as confirmed by objective elements, of independently starting an economic activity, and who incurs the initial investment expenditure for those purposes must be regarded as a taxable person (judgments of 8 June 2000, Breitsohl, C‑400/98, EU:C:2000:304, paragraph 34, and of 14 March 2013, Ablessio, C‑527/11, EU:C:2013:168, paragraph 25 and the case-law cited).

19It follows that a company which carries out preparatory acts which are part of a proposed acquisition of shares in another company with the intention of pursuing an economic activity consisting in involvement in the management of that other company by providing management services subject to VAT must be considered a taxable person, within the meaning of the Sixth Directive.

20In the present case, it is apparent from the file before the Court that, by the planned acquisition of shares in the target company, Ryanair’s intention was to provide the target company with management services subject to VAT and, on that basis, to pursue an economic activity within the meaning of the Sixth Directive. Therefore, it must be concluded that Ryanair must, in the context of that acquisition, be considered a taxable person, within the meaning of the Sixth Directive.

21As regards, in the second place, the right to deduct, it follows from Article 17 of the Sixth Directive that, in so far as the taxable person, acting as such at the time when he acquires goods or receives services, uses those goods or services for the purposes of his taxed transactions, he is entitled to deduct the VAT paid or payable in respect of those goods or services. In accordance with the first subparagraph of Article 10(2) and Article 17 of the Sixth Directive, that right to deduct arises at the time when the tax becomes chargeable, namely when the goods are delivered or the services are performed (judgment of 22 March 2012, Klub, C‑153/11, EU:C:2012:163, paragraph 36 and the case-law cited).

22The right to deduct provided for in Article 17 et seq. of the Sixth Directive is an integral part of the VAT scheme and, in principle, may not be limited. It is exercisable immediately in respect of all the taxes charged on input transactions (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 25 and the case-law cited).

23The deduction system is intended to relieve the trader entirely of the burden of the VAT payable or paid in the course of all his economic activities. The common system of VAT consequently ensures neutrality of taxation of all economic activities, whatever their purpose or results, provided that they are themselves subject in principle to VAT (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 26 and the case-law cited).

24The principle that VAT should be neutral as regards the tax burden on a business requires that the first investment expenditure incurred for the purposes of, and with the view to, commencing a business must be regarded as an economic activity; it would be contrary to that principle if such an activity commences only when taxable income arises. Any other interpretation would burden the trader with the cost of VAT in the course of his economic activity without allowing him to deduct it and would create an arbitrary distinction between investment expenditure incurred for the needs of a business before actual exploitation of the business or expenditure incurred during exploitation (judgment of 21 March 2000, Gabalfrisa and Others, C‑110/98 to C‑147/98, EU:C:2000:145, paragraph 45 and the case-law cited).

25Moreover, the right to deduct, once it has arisen, is retained even if the intended economic activity was not carried out and, therefore, did not give rise to taxed transactions (judgment of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 20) or the taxable person was unable to use the goods or services which gave rise to a deduction in the context of taxable transactions by reason of circumstances beyond his control (judgments of 8 June 2000, Midland Bank, C‑98/98, EU:C:2000:300, paragraph 22, and of 15 January 1998, Ghent Coal Terminal, C‑37/95, EU:C:1998:1, paragraph 20). Any other interpretation would be contrary to the principle that VAT should be neutral as regards the tax burden on a business. It would be liable to create, as regards the tax treatment of the same investment activities, unjustified differences between businesses already carrying out taxable transactions and other businesses seeking by investment to commence activities which will in future be a source of taxable transactions. Likewise, arbitrary differences would be established between the latter businesses, in that final acceptance of the deductions would depend on whether or not the investment resulted in taxed transactions (judgment of 29 February 1996, INZO, C‑110/94, EU:C:1996:67, paragraph 22).

26Furthermore, in accordance with settled case-law, the existence of a direct and immediate link between a particular input transaction and a particular output transaction or transactions giving rise to the right to deduct is, in principle, necessary before the taxable person is entitled to deduct input VAT and in order to determine the extent of such entitlement. The right to deduct VAT charged on the acquisition of input goods or services presupposes that the expenditure incurred in acquiring them is a component of the cost of the output transactions giving rise to the right to deduct (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 28 and the case-law cited).

27However, a taxable person also has a right to deduct even where there is no direct and immediate link between a particular input transaction and an output transaction or transactions giving rise to the right to deduct where the costs of the services in question are part of his general costs and are, as such, components of the price of the goods or services which he supplies. Such costs do have a direct and immediate link with the taxable person’s economic activity as a whole (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 29 and the case-law cited).

28When the tax authorities and national courts apply the direct-link test, they should consider all the circumstances surrounding the transactions concerned and take account only of the transactions which are objectively linked to the taxable person’s taxable activity. The existence of such a link must thus be assessed in the light of the objective content of the transaction in question (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 31 and the case-law cited).

29On the other hand, where goods or services acquired by a taxable person are used for purposes of transactions that are exempt or do not fall within the scope of VAT, no output tax can be collected or input tax deducted (judgment of 14 September 2017, Iberdrola Inmobiliaria Real Estate Investments, C‑132/16, EU:C:2017:683, paragraph 30 and the case-law cited).

30It follows that in order for the VAT paid to be deducted in full, the exclusive reason for the expenditure incurred must be found, in principle, in the intended economic activity, namely the provision to the target company of management services subject to VAT (see, to that effect, judgments of 8 February 2007, Investrand, C‑435/05, EU:C:2007:87, paragraphs 33 and 36; of 13 March 2008, Securenta, C‑437/06, EU:C:2008:166, paragraphs 29 and 30; and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 25). In the event that the expenditure is attributed in part also to an exempt or non-economic activity, VAT paid on that expenditure may only be deducted in part (see, to that effect, judgments of 6 September 2012, Portugal Telecom, C‑496/11, EU:C:2012:557, paragraphs 46 and 47, and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt, C‑108/14 and C‑109/14, EU:C:2015:496, paragraphs 28 to 30).

31In the present case, it is apparent from the file before the Court that the services at issue were provided to Ryanair when it intended, by the planned acquisition of shares in the target company, to pursue an economic activity consisting in providing to that company management services subject to VAT. Thus, it appears that, first, Ryanair acted as a taxable person at the time it incurred the expenditure linked to the services at issue. By doing so, Ryanair thus benefits, in principle, from the right to deduct VAT paid on the services at issue immediately, even if, ultimately, that economic activity, which was to give rise to taxable transactions, was not carried out and, accordingly, did not give rise to such transactions. Second, as regards the conditions for the exercise of the right to deduct and more specifically the scope of that right, the expenditure incurred for the purpose of the acquisition of the shares of the target company must be regarded as being attributable to the performance of that economic activity which consisted in carrying out transactions giving rise to a right to deduct. On that basis, that expenditure has a direct and immediate link with that economic activity as a whole and, consequently, is part of its general costs. It follows that the corresponding VAT gives rise to the right to deduction in full.

32Having regard to all of the foregoing considerations, the answer to the questions referred is that Articles 4 and 17 of the Sixth Directive must be interpreted as conferring on a company, such as that at issue in the main proceedings, which intends to acquire all the shares of another company in order to pursue an economic activity consisting in the provision of management services subject to VAT to that other company, the right to deduct, in full, input VAT paid on expenditure relating to consultancy services provided in the context of a takeover bid, even if ultimately that economic activity was not carried out, provided that the exclusive reason for that expenditure is to be found in the intended economic activity.

Costs

33Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

Articles 4 and 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as conferring on a company, such as that at issue in the main proceedings, which intends to acquire all the shares of another company in order to pursue an economic activity consisting in the provision of management services subject to value added tax (VAT) to that other company, the right to deduct, in full, input VAT paid on expenditure relating to consultancy services provided in the context of a takeover bid, even if ultimately that economic activity was not carried out, provided that the exclusive reason for that expenditure is to be found in the intended economic activity.

Signatures

Silva de Lapuerta

Bonichot

Arabadjiev

Regan

Fernlund

Delivered in open court in Luxembourg on 17 October 2018.

A. Calot Escobar

Registrar

K. Lenaerts

President

( *1 ) Language of the case: English.

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 May 2018 ¹

(Reference for a preliminary ruling — Taxation — Common system of value added tax — Concept of taxable person — Expenditure for services procured in connection with the acquisition of an undertaking’s entire share capital — Right of deduction — Unsuccessful takeover of a competitor)

I. Introduction

1The focus in the present case is once again the interpretation of the concept of ‘taxable person’ and the definition of ‘economic activity’ within the meaning of Article 9(1) of the VAT Directive. ² The proceedings will give the Court an opportunity to clarify the scope of its case-law on deduction of input tax by holding companies.

2In 2006 the airline Ryanair made a bid to take over the Irish airline Aer Lingus. Although the takeover failed for reasons of competition law, Ryanair had already incurred considerable costs for consultancy and other services in connection with the planned takeover. Ryanair therefore claimed deduction of the input tax paid, which was refused by the Irish tax authorities.

3It is recognised in the Court’s case-law that deduction of input tax can also be claimed for abortive investments. However, the dispute arises in this instance because, according to case-law, the mere acquisition and holding of shares does not constitute economic activity within the meaning of the VAT Directive. Consequently, according to the Court’s case-law, a holding company whose sole purpose is to acquire shares is not entitled to deduct input tax. ³

4In contrast with the situation of a conventional holding company, however, in this case an operating undertaking (and thus a taxable person) sought to make a strategic takeover of a competitor. The question therefore arises whether the limitation of input tax deduction based on the case-law on holding companies ⁴ actually applies here, as the economic dimension of the case is addressed only if regard is had, in a functional analysis, to the importance of the acquisition of shares for the existing economic activity.

II. Legal framework

5The framework of the case in EU law is provided by the rules of Sixth Council Directive 77/388/EEC ⁵ of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (‘the Sixth Directive’), as applicable in the taxation period in question. Those rules are substantively the same as the corresponding provisions of Directive 2006/112 (‘the VAT Directive’). ⁶

6Article 9(1) of the VAT Directive (formerly Article 4(1) and (2) of the Sixth Directive) provides:

‘1. “Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.

Any activity of producers, traders or persons supplying services, including mining and agricultural activities and activities of the professions, shall be regarded as “economic activity”. The exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis shall in particular be regarded as an economic activity. …’

7Under Article 167 of the VAT Directive, a right of deduction arises at the time the deductible tax becomes chargeable. Under Article 168 of that directive (both provisions being formerly regulated in Article 17 of the Sixth Directive):

‘In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:

the VAT due or paid in that Member State in respect of supplies to him of goods or services, carried out or to be carried out by another taxable person; …’

III. Facts, main proceedings and questions referred for a preliminary ruling

8The appellant in the main proceedings, Ryanair Ltd (‘Ryanair’), is a private airline established in Ireland. On 23 October 2006, Ryanair made a formal takeover bid with the aim of acquiring the entire share capital of Aer Lingus. Aer Lingus is a formerly State-owned airline from Ireland whose shares were quoted on the stock exchange on 2 October 2006 following privatisation in 2006.

9By decision of 27 June 2007, the European Commission declared that the concentration was incompatible with the common market. ⁷ For that reason, Ryanair was only able to acquire slightly less than 29% of the shares in Aer Lingus.

10In connection with the takeover bid, Ryanair availed itself of services subject to VAT. Ryanair claimed that VAT as deductible input tax. However, this was refused by the Irish tax authorities (The Revenue Commissioners, the respondent in the main proceedings).

11Ryanair first appealed against the negative decision to the Irish Tax Appeals Commission and then lodged an appeal with the Circuit Court. The Circuit Court made a binding finding of fact and referred to the Irish High Court, in a kind of national preliminary ruling procedure, the legal question whether there is a right to deduct under the circumstances of the main proceedings. The High Court also found that Ryanair was not entitled to deduct input tax.

12Ryanair appealed against the decision of the High Court to the Irish Supreme Court. By order of 8 May 2017, received at the Court on 12 May 2017, the Supreme Court stayed its proceedings and referred the following questions to the Court for a preliminary ruling pursuant to Article 267 TFEU:

Can a future intention to provide management services to a takeover target, in the event that the takeover is successful, be sufficient to establish that the potential acquirer is engaged in economic activity for the purposes of Article 4 of the Sixth VAT Directive so that VAT charged to the potential acquirer on goods or services provided for the purposes of seeking to progress the relevant acquisition can potentially be considered as VAT on an input to the intended economic activity of providing such management services; and

Can there be a sufficient “direct and immediate link”, as identified as a requirement by the Court of Justice of the European Union [in the judgment of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495)], between professional services rendered in the context of such a potential takeover and output, being the potential provision of management to the acquisition target in the event that the takeover is successful, so as to permit a deduction to be made in respect of the VAT payable on those professional services?’

13In the proceedings before the Court, Ryanair, Ireland and the Commission submitted written observations. All the parties were represented at the hearing on 14 March 2018.

IV. Legal assessment

14Both questions referred for a preliminary ruling concern the right of deduction for expenditure made in connection with the intended, but ultimately unsuccessful, acquisition of a company’s entire share capital with a view to a takeover. They should therefore be answered together.

15By the first question, the Supreme Court is essentially seeking to ascertain whether the acquiring company’s intention to provide management services to the subsidiary, in the event that the takeover is successful, is sufficient to classify it as a taxable person within the meaning of the VAT Directive.

16In essence, the Supreme Court is thus asking about the possibility of combining two lines of case-law. On the one hand, according to the case-law of the Court of Justice, a right to deduct also exists for abortive investments. In the case of costs incurred in the preparation of an economic activity, deduction of input tax can be claimed even where the economic activity is not taken up successfully and the intended taxable transactions do not take place. ⁸ The only material factor is the taxable person’s intention of engaging in an economic activity, which is to be proven by objective factors. ⁹ On the other hand, a holding company’s economic activity, which is necessary for deduction of input tax according to case-law, may in particular consist in it providing management services to the company in which it has acquired a shareholding. ¹⁰

17By the second question, the Supreme Court would then like to ascertain whether there is the immediate and direct link necessary for deduction of input tax between the expenditure made in connection with the acquisition of shares in the company and the intended management services.

A. Background to the distinction between a financial holding company and an operating undertaking

18The case-law on holding companies to which the Supreme Court refers in its first question was developed using the example of pure financial holding companies whose sole purpose is to acquire shares in other undertakings and which have no operating business of their own. Their sole income consists of dividends, which do not constitute remuneration for the economic use of property but are merely the result of ownership of a share. ¹¹

19According to the Court’s case-law, pure financial holding companies are not therefore — in the absence of additional remunerated management services, for example — to be regarded as a taxable person within the meaning of Article 9(1) of the VAT Directive ¹² as they do not carry on an economic activity. Consequently, they also cannot claim a right of deduction under Article 168 of the directive.

20Against this background, the Supreme Court asks the question whether this case-law also has a bearing on the present case, since Ryanair wished to acquire shares and did so, albeit to a smaller extent than planned.

21There is no doubt that Ryanair is to be regarded fully as a taxable person within the meaning of the VAT Directive in respect of turnover from the airline business. The business objective of acquiring the shares is also immediately apparent. Through the takeover of a competitor, Ryanair wished to increase its turnover and presumably also to generate synergy and network effects.

22Nevertheless, recognition of an economic activity and thus of deduction of input tax by virtue of the application of the case-law on holding companies depends primarily on whether Ryanair had the intention of providing remunerated management services to Aer Lingus (see under B). It would be completely immaterial in this regard, however, to what extent management services are to be supplied. The question therefore arises whether deductible input tax in respect of the costs for the acquisition of shares should not in fact be allocated (see under C), as, in addition to the turnover from management services, there could be much higher dividend income which does not in itself give entitlement to deduct input tax.

23However, neither the ‘indirect route’ of remunerated management services nor the resulting allocation problems in applying that solution are necessary if regard is had to a functional link between the acquisition of shares and the main operating business (see under D). Looking at the function of the planned takeover for the operating business, its costs are juxtaposed with the turnover from the operating business. Accordingly, the only material factor is the immediate and direct link between those turnovers (see under E).

24Nevertheless, since the Supreme Court considers the case-law on holding companies to be applicable to the transaction at issue, I will first examine whether Ryanair would be entitled to deduct input tax on that basis.

B. Full input tax deduction according to the case-law on holding companies

25As was stated above (point 18), the holding of a share alone does mean that an economic activity is considered to exist. On the other hand, the Court states in its settled case-law that the acquisition and holding of a share by a holding company does constitute an economic activity within the meaning of Article 9(1) of the VAT Directive where the shareholding is accompanied by direct or indirect involvement in the management of the target company. ¹³ Such involvement may, for example, consist in the supply of administrative, financial or commercial services to the target company. ¹⁴ However, this criterion is merely based on the fact that for a pure holding company to be recognised as a taxable person, there must additionally be activities which are subject to VAT by virtue of Articles 2 and 9 of the directive. ¹⁵

26This conclusion holds in a case like the present one — the Supreme Court asks about this expressly — even if the intended management services do not actually take place. For, in order to guarantee that the VAT system is fully neutral for the taxable person, a right of deduction must also exist for expenditure made in preparation for an economic activity. ¹⁶ The only crucial factor is the intention to commence an economic activity, supported by objective evidence. ¹⁷ This applies even if it is already known, when the first tax assessment is made, that the intended economic activity leading to taxable transactions will not actually be taken up. ¹⁸

27If the two lines of case-law mentioned by the Supreme Court are combined, recognition of Ryanair as a taxable person would therefore depend on whether it had the intention, when the services in question were used, to supply taxable management services to Aer Lingus in the event that the takeover was successful. This intention has been found by the Circuit Court with binding effect for the main proceedings. As the Commission stated at the hearing, the fact that the takeover bid actually failed, and no involvement in the management of Aer Lingus was and is therefore also possible, could not result in a subsequent exclusion of the right to deduct input tax.

C. Limitation of input tax deduction in respect of a small management fee?

28However, if regard is had solely to the provision of remunerated management services, this leads in practice to seemingly artificial constructions, as, according to the Court’s case-law, the extent to which such remunerated management services are supplied is entirely irrelevant to entitlement to full input tax deduction. ¹⁹ Consequently, there are often large input tax surpluses, that is to say, a significant disproportion between the output transactions generated by management services and the deductible input tax claimed on the input transactions.

29The Court’s case-law therefore makes it possible for holding companies to claim a large input tax deduction on the acquisition of shares, provided only management services are supplied for remuneration — irrespective of the amount — to the company. For that reason, the Commission expressly proposed in the proceedings before the Court that input tax deduction be permitted in connection with the acquisition of shares only if proportionate to the output transactions generated by management services.

30However, the question arises, in the next step, of the calculation of proportionality. A simple comparison of the values of the turnover from management services and from dividends neglects the fact that the holding of shares does not give rise to recurrent costs. Furthermore, the input tax surplus described above also exists only in the taxation period in which the acquisition of shares of a company occurs. If the management services are supplied for remuneration over a number of years, the situation is different. In addition, the problems of calculation are compounded in a case like this one, where the acquisition is merely planned. In these circumstances, a rough estimate at best could be made of potential dividend income.

31Moreover, not every holding of shares in the case of a taxable person can necessarily lead to a non-economic activity alongside the operating business, as this is not compatible with the principle that VAT should be neutral. ²⁰ On the basis of the Commission’s approach, any taxable person who also holds shares could claim only proportionate input tax deduction in respect of its general management costs even if it is clear that those costs are incurred in connection with its economic activity, ²¹ as the holding of a share as such generates at most low costs and the amount of dividend income likewise does not depend on the other general costs.

32Consequently, the Commission’s view is not convincing.

D. Full input tax deduction on a functional analysis of the acquisition of shares

33On the other hand, the abovementioned problems do not arise on a functional analysis which takes into account the taxable person’s main operating business and has regard to the link between the acquisition of shares and that economic activity. In particular, the costs for the takeover are juxtaposed with the turnover from the operating business. Indeed, I take the view that such a functional analysis in cases like the present one follows from the Court’s case-law.

34The situation, typical of a pure holding company, in which the supply of taxable management services is virtually a condition for assuming an economic activity, does not exist in cases like that in the main proceedings. For, as has been seen, Ryanair already carries on a commercial activity on the air transport market and generates turnover accordingly. Against this background, it seems artificial to have regard to the future provision of remunerated management services.

35A functional analysis better addresses the economic dimension of the case. Although in this instance the takeover of a competitor is intended to be achieved by acquiring shares in the company, the case is much closer to the situation where an undertaking plans to buy up all of a competitor’s physical equipment and facilities than to the situation where an undertaking wishes to purchase shares merely to generate dividends.

36The consequence of such an approach — as the Commission also acknowledged at the hearing — would undoubtedly be that the acquirer would be entitled to full input tax deduction. This conclusion would follow from both the potentially applicable rules on the transfer of a business in general (Article 19(1) of the VAT Directive) and the normal rules. In the case of a full merger with the target company, deduction of input tax from the acquisition costs would likewise be out of the question. Limiting input tax deduction in the case of a ‘mere’ 100% shareholding would also call into question the principle of neutrality of legal form.

37Consequently, according to the Court’s case-law, direct involvement in management by supplying management services is certainly not the only case where the holding of a share can constitute an economic activity. Rather, the Court considers an economic activity to exist whenever the acquisition or holding of the share has a typical ²² business character. This is the case, for example, with commercial securities trading or if the acquisition or holding of shares constitutes a direct, permanent and necessary extension of a taxable activity. ²³

38The strategic takeover of an undertaking by which the acquiring company pursues the aim of extending or modifying its operating business is to be regarded as such a direct, permanent and necessary extension of a taxable activity. Although such a takeover is accompanied by the acquisition of shares in the company, it constitutes a measure aimed at (extended) taxable turnover.

E. The link between the acquisition of shares and the turnover from the operating business

39The question of the link between the costs incurred in connection with the acquisition of shares and the intended management services thus no longer arises. ²⁴ On a functional analysis, it is instead a matter of the link between the acquisition of shares and the (intended) turnover from the operating airline business. With regard to this turnover there is no disproportion between the value of the deductible input tax and the output transactions, with the result that an allocation is also unnecessary.

40According to the Court’s case-law, such expenditure has a direct and immediate link with certain output transactions which were a component of their cost. ²⁵ In addition, it is possible to claim deduction of input tax for the undertaking’s general costs which are components of the price of an undertaking’s products. ²⁶

41The expenditure made in connection with acquiring the shares of Aer Lingus undoubtedly constitutes components of the cost of the (intended) output transactions from the airline business following the takeover of Aer Lingus. These costs will also have to be factored into airfares somehow, if Ryanair is to operate profitably. Gaining control of Aer Lingus would have been the condition for improving overall business performance and thus for generating the intended output transactions with the parent company and the subsidiary. Such influence on the management of a competitor is possible only if the acquiring company holds the majority of the company’s shares.

42According to the Court’s case-law — as has already been explained above (point 26) — the fact that the intended takeover and the ongoing operation of Aer Lingus under the full control of Ryanair was not actually realised has no bearing on this conclusion. Here too, the intention of engaging in economic activity, proven by objective factors, is sufficient. ²⁷ That intention cannot be called into question subsequently on the ground that there was in fact no takeover of Aer Lingus. ²⁸

V. Conclusion

Conclusion

43I therefore propose that the questions referred for a preliminary ruling be answered as follows:

Under circumstances like those in the main proceedings (in the context of a strategic takeover for example), the acquisition of a company’s entire share capital with the intention of thereby bringing about a direct, permanent and necessary extension of the taxable activity of the acquiring company constitutes an economic activity within the meaning of Article 4 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (now Article 9(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax).

Costs incurred by the acquiring company in connection with achieving such a strategic takeover have a direct and immediate link with its taxable activity with the result that the value added tax paid on that expenditure is to be deducted in accordance with that activity.

¹ Original language: German.

² Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

³ Judgments of 20 June 1991, Polysar Investments Netherlands (C‑60/90, EU:C:1991:268, paragraph 17); of 14 November 2000, Floridienne and Berginvest (C‑142/99, EU:C:2000:623, paragraph 17); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 20).

⁴ Judgments of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 21); of 29 October 2009, AB SKF (C‑29/08, EU:C:2009:665, paragraph 30 et seq.); of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 34); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 21).

⁵ OJ 1997 L 145, p. 1.

⁶ With a view to a simpler form of citation reference will be made hereinafter to the provisions of the VAT Directive.

⁷ Decision C(2007) 3104 of 27 June 2007 (Case COMP/M.4439). The action for annulment brought against that decision by Ryanair before the General Court was unsuccessful, see judgment of 6 July 2010, Ryanair v Commission (T‑342/07, EU:T:2010:280).

⁸ Judgments of 14 February 1985, Rompelman (268/83, EU:C:1985:74, paragraph 24); of 29 February 1996, INZO (C‑110/94, EU:C:1996:67, paragraph 17); and of 22 October 2015, Sveda (C‑126/14, EU:C:2015:712, paragraph 20).

⁹ See the recent judgment of 21 September 2017, SMS group (C‑441/16, EU:C:2017:712, paragraph 46).

¹⁰ Judgments of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 21); of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 34); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 21).

¹¹ Judgments of 22 June 1993, Sofitam (C‑333/91, EU:C:1993:261, paragraph 13); of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 19); and of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 32).

¹² Judgments of 20 June 1991, Polysar Investments Netherlands (C‑60/90, EU:C:1991:268, paragraph 17); of 14 November 2000, Floridienne and Berginvest (C‑142/99, EU:C:2000:623, paragraph 17); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 20).

¹³ Judgments of 20 June 1991, Polysar Investments Netherlands (C‑60/90, EU:C:1991:268, paragraph 14); of 14 November 2000, Floridienne and Berginvest (C‑142/99, EU:C:2000:623, paragraph 17); of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 19); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 20).

¹⁴ Judgments of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 21); of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 34); and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 21).

¹⁵ Unremunerated (‘mere’) involvement is not therefore sufficient where there are additionally no taxable output transactions at all (see orders of 12 July 2001, Welthgrove (C‑102/00, EU:C:2001:416, paragraph 16 et seq.), and of 12 January 2017, MVM (C‑28/16, EU:C:2017:7, paragraph 34)).

¹⁶ Judgments of 14 February 1985, Rompelman (268/83, EU:C:1985:74, paragraph 23); of 8 June 2000, Schloßstrasse (C‑396/98, EU:C:2000:303, paragraph 39); and of 22 October 2015, Sveda (C‑126/14, EU:C:2015:712, paragraph 20).

¹⁷ Judgments of 14 February 1985, Rompelman (268/83, EU:C:1985:74, paragraph 24); of 8 June 2000, Schloßstrasse (C‑396/98, EU:C:2000:303, paragraph 40); and of 21 September 2017, SMS group (C‑441/16, EU:C:2017:712, paragraph 46).

¹⁸ Judgment of 8 June 2000, Breitsohl (C‑400/98, EU:C:2000:304, paragraph 34 et seq.).

¹⁹ See, to that effect, judgment of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 25), and Opinion of Advocate General Mazák in Securenta (C‑437/06, EU:C:2007:777, point 30 et seq.).

²⁰ With regard to this principle, see judgments of 22 June 1993, Sofitam (C‑333/91, EU:C:1993:261, paragraph 10); of 26 May 2005, Kretztechnik (C‑465/03, EU:C:2005:320, paragraph 33); and of 29 October 2009, AB SKF (C‑29/08, EU:C:2009:665, paragraph 55). However, in MVM, unlike the present case, the link between the inputs and the operating business was in any case doubtful (see order of 12 January 2017, MVM (C‑28/16, EU:C:2017:7, paragraph 39)).

²¹ In MVM the Court ruled that a mixed holding company which does not supply any taxable management services for its subsidiaries and additionally generates other turnover from its own operating business (leasing of power plants and fibre optic networks) may deduct input tax proportionately from the costs incurred by it in the procurement of consulting services only if they can be regarded as general costs for the operating branch of its business (see order of 12 January 2017, MVM (C‑28/16, EU:C:2017:7, paragraph 46 et seq.)).

²² See, with regard to the typological approach to economic activity within the meaning of Article 9(1) of the VAT Directive, my Opinion in Posnania Investment (C‑36/16, EU:C:2017:134, point 25).

²³ Judgments of 20 June 1996, Wellcome Trust (C‑155/94, EU:C:1996:243, paragraph 35); of 6 February 1997, Harnas & Helm (C‑80/95, EU:C:1997:56, paragraph 16); of 14 November 2000, Floridienne and Berginvest (C‑142/99, EU:C:2000:623, paragraph 29); of 8 February 2007, Investrand (C‑435/05, EU:C:2007:87, paragraphs 32/36); of 29 October 2009, AB SKF (C‑29/08, EU:C:2009:665, paragraph 31); and of 30 May 2013, X (C‑651/11, EU:C:2013:346, paragraph 52).

²⁴ Moreover, the Court has expressly rejected a direct and immediate link between these transactions, see judgment of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 32). The words used in the judgment of 29 October 2009, AB SKF (C‑29/08, EU:C:2009:665, paragraph 64) are misleading in this regard. It is possible to claim as general costs, see judgments of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 37), and of 16 July 2015, Larentia + Minerva and Marenave Schiffahrt (C‑108/14 and C‑109/14, EU:C:2015:496, paragraph 25).

²⁵ Judgments of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 31); of 26 May 2005, Kretztechnik (C‑465/03, EU:C:2005:320, paragraph 35); of 29 October 2009, AB SKF (C‑29/08, EU:C:2009:665, paragraph 57); and of 17 October 2013, Iberdrola and Others (C‑566/11, C‑567/11, C‑580/11, C‑591/11, C‑620/11 and C‑640/11, EU:C:2013:660, paragraph 28).

²⁶ Judgments of 27 September 2001, Cibo Participations (C‑16/00, EU:C:2001:495, paragraph 33); of 26 May 2005, Kretztechnik (C‑465/03, EU:C:2005:320, paragraph 37); of 6 September 2012, Portugal Telecom (C‑496/11, EU:C:2012:557, paragraph 37); and of 17 October 2013, Iberdrola and Others (C‑566/11, C‑567/11, C‑580/11, C‑591/11, C‑620/11 and C‑640/11, EU:C:2013:660, paragraph 29).

²⁷ See judgments of 14 February 1985, Rompelman (268/83, EU:C:1985:74, paragraph 24); of 29 February 1996, INZO (C‑110/94, EU:C:1996:67, paragraph 17); of 22 October 2015, Sveda (C‑126/14, EU:C:2015:712, paragraph 20); and of 21 September 2017, SMS group (C‑441/16, EU:C:2017:712, paragraph 46).

²⁸ The referring court also expressly observes that the question whether Ryanair’s intention in this regard is proven by objective factors or whether the objective factors tend to rule out such an intention has been definitively clarified in the main proceedings. This was also underlined by all the parties at the hearing.