T-575/24 Digipolis

Provisional text

JUDGMENT OF THE GENERAL COURT (Chamber giving preliminary rulings)

25 February 2026 (*)

( Reference for a preliminary ruling – Taxation – Common system of VAT – Scope – Liability to tax – Body governed by public law – Articles 2, 9 and 13 of Directive 2006/112/EC – Intermunicipal cooperation – Conferral of management – Commissioning association – Provision of telematics services for the benefit of members of the association )

In Case T‑575/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), made by decision of 11 October 2024, received at the Court of Justice on 22 October 2024, in the proceedings

Belgische Staat/Federale Overheidsdienst Financiën

v

Digipolis Antwerpen AG,

District09 AG,

THE GENERAL COURT (Chamber giving preliminary rulings),

composed, at the time of the deliberations, of S. Papasavvas, President, N. Półtorak, M. Sampol Pucurull, G. Steinfatt (Rapporteur) and W. Valasidis, Judges,

Advocate General: J. Martín y Pérez de Nanclares,

Registrar: L. Ramette, Administrator,

having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 8 November 2024, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,

having regard to the fact that the case concerns the area referred to in point (a) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,

having regard to the written part of the procedure and further to the hearing on 5 September 2025,

after considering the observations submitted on behalf of:

– the Belgian Government, by D. Carmen and F. Lambotte, acting as Agents,

– Digipolis Antwerpen AG and District09 AG, by F. Soetaert, advocaat,

– the European Commission, by M. Herold and W. Roels, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 October 2025,

gives the following

Judgment

Legal context and the dispute

1The present request for a preliminary ruling concerns the interpretation of Articles 2, 9 and 13 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’) and of the principle of neutrality of value added tax (VAT).

2The request has been made in proceedings between Belgische Staat/Federale Overheidsdienst Financiën (Belgian State/Federal Public Finance Service), and Digipolis Antwerpen AG and District09 AG, the successors in title to Digipolis, an association governed by public law, concerning services supplied by Digipolis to some of its members not being liable to VAT.

Legal framework

European Union law

3Article 2 of the VAT Directive provides:

‘1. The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…

(c) the supply of services for consideration within the territory of a Member State by a taxable person acting as such;

…’

4Article 9(1) of the VAT Directive states:

‘“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” …’

5Article 11 of the VAT Directive provides:

‘After consulting the advisory committee on value added tax …, each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.

…’

6Article 13(1) of the VAT Directive is worded as follows:

‘States, regional and local government authorities and other bodies governed by public law shall not be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with those activities or transactions.

However, when they engage in such activities or transactions, they shall be regarded as taxable persons in respect of those activities or transactions where their treatment as non-taxable persons would lead to significant distortions of competition.

In any event, bodies governed by public law shall be regarded as taxable persons in respect of the activities listed in Annex I, provided that those activities are not carried out on such a small scale as to be negligible.’

7Annex I to the VAT directive includes a list of activities referred to in the third subparagraph of Article 13(1) of that directive. Point 1 of that annex refers to ‘telecommunications services’.

Belgian law

The VAT Code

8The request for a preliminary ruling contains references to the Wetboek van de belasting over de toegevoegde waarde (‘VAT Code’), but does not identify the version applicable to the facts of the dispute in the main proceedings or setting out the provisions referred to.

9The order for reference nevertheless makes it possible to understand that Articles 4, 6 and 44 of the VAT Code are intended to transpose Articles 9, 13 and 132 of the VAT Directive respectively. Accordingly, Article 4 of the VAT Code defines the concept of ‘taxable person’, Article 6 of that code governs the treatment of certain bodies regulated by public law as non-taxable persons and Article 44 of that code contains exemptions for certain activities in the public interest.

Decree on intermunicipal cooperation

10Article 10 of the decreet houdende de Intergemeentelijke samenwerking (Decree on intermunicipal cooperation) of 6 July 2001 (Belgisch Staatsblad, 31 October 2001, p. 37836) provides:

‘Two or more municipalities may establish a joint venture with legal personality to achieve objectives belonging to one or more substantively related policy areas.’ Without prejudice to decree provisions to the contrary, in addition to municipalities and provinces, only autonomous municipal authorities, public social [welfare] centres and their associations, in so far as they consist exclusively of public legal entities, and other cooperation structures established in accordance with the provisions of this decree, shall be entitled to participate.

…’

11Article 12 of the Decree on intermunicipal cooperation states:

Ԥ 1. The municipalities shall decide on the conferral of management in accordance with the Articles of Association of the joint venture.

Conferral of management means the entrusting by the participating municipalities to the joint venture of the implementation of decisions taken by them within the framework of its objectives, in the sense that the participating municipalities deny themselves the right to carry out the same task independently or jointly with third parties.

§ 2. There are three forms of joint venture with legal personality:

…

3° commissioning association: a joint venture with conferral of management to which the participating municipalities entrust the implementation of one or more clearly defined competences relating to one or more functionally related policy areas.’

The ‘emanation’ theory

12It is apparent both from the request for a preliminary ruling and from the reply of the Belgian State/Federal Public Finance Service to a question put at the hearing that the ‘emanation’ theory is the basis for an ‘administrative tolerance’, that is to say, a tax practice which has its origins in aanschrijving nr. 148/1971 (Circular No 148/1971) of 5 October 1971 and aanschrijving nr. 6/1975 (Circular No 6/1975) of 27 February 1975.

13As regards the scope of that practice, the referring court reproduced the answer by the minister van Financiën (Minister for Finance, Belgium) of 25 May 2018 to parliamentary question No 2188 of 19 April 2018, which states as follows:

‘Commissioning associations are indeed treated in the same way as intermunicipal associations in terms of VAT, with member municipalities having relinquished their regulatory and management rights. … Where participants have waived [those rights], the “emanation theory” applies.

The [‘emanation’] theory involves ignoring the fact that the activity is carried out by the commissioning association. From a VAT perspective, the activity is deemed to be carried out by the participants in the commissioning association themselves.

This means that the activities (with conferral of management) performed by the commissioning association in relation to third parties are not subject to VAT where those activities, if performed by the participants themselves, would also not be subject to VAT.

Where the commissioning association performs activities for third parties which would fall outside the scope of VAT or would be exempt from VAT if performed by the participants themselves, those activities are also not subject to VAT in respect of the commissioning association or are exempt from VAT.

By contrast, the activities carried out by the commissioning association for third parties are subject to VAT [if] they would also be subject to VAT if carried out by the participants themselves. The VAT status of the participant is therefore relevant here, since it has to be considered whether or not the participant itself would have to charge VAT when applying Article 4, Article 6 and/or Article 44 of the VAT Code.

The fact that, under the [‘emanation’] theory, it is ignored that the activity is carried out by the association and for VAT purposes the activity is deemed to be carried out by the participants themselves also has implications for the services performed by the commissioning association for the participants. Services performed by a commissioning association for its participants are deemed to be services to itself.

For the purposes of the conferral of management, the commissioning association is deemed to be acting “in place of” and not “on behalf of” its participants. A self-supply of services does not in principle fall within the scope of VAT, which means that in the relationship between the commissioning association and its participants, there are in principle no services subject to VAT either.

The VAT status of the participants is not relevant here, since internal operations do not fall within the scope of VAT, irrespective of whether the participant qualifies as a public body under Article 6 of the VAT Code or a normal VAT taxable person under Article 4 of the VAT Code.’

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

14In 2003, the Stad Gent (City of Ghent, Belgium), the Openbaar centrum voor maatschappelijk welzijn Gent (Public Social Welfare Centre, Ghent, Belgium), the Stad Antwerpen (City of Antwerp, Belgium) and the Openbaar centrum voor maatschappelijk welzijn Antwerpen (Public Social Welfare Centre, Antwerp, Belgium) (together ‘the founding members’) set up Digipolis, a legal person governed by public law, in the form of a commissioning association with legal personality and conferral of management.

15Article 2 of the articles of association of Digipolis provided that Digipolis was subject to the provisions of the Decree on intermunicipal cooperation.

16Article 4 of the articles of association of Digipolis stated that the purpose of that association was the management, operation, development and promotion of telematics and its applications. Digipolis was to continue to act as a strategic instrument for each of its members. To that end, it was to align its policy, strategy and functioning with those of its members. In that context, the members were to aim to identify opportunities for mutual synergies, carry out joint projects and organise joint telematics services which were more optimal from a business and functional point of view than if they had organised those services separately.

17Article 7 of the articles of association of Digipolis, as originally drafted, provided that Digipolis’ founding participants were the cities of Ghent and Antwerp and their public social welfare centres.

18Following an amendment to Article 7 in 2010, external autonomous agencies of the founding members were able to join the association, which the Autonoom Gemeentebedrijf Stedelijk Onderwijs Antwerpen (Autonomous Municipal Education Authority of the City of Antwerp, Belgium), the Autonoom Gemeentebedrijf Kinderopvang Antwerpen (Autonomous Municipal Childcare Authority of the City of Antwerp, Belgium), the Autonoom Gemeentebedrijf voor Stadsontwikkeling Antwerpen (Autonomous Municipal Authority for Urban Development of the City of Antwerp, Belgium), the Zorgbedrijf Antwerpen (Public and Social Support Office of the City of Antwerp, Belgium) and the Aotonoom Gemeentebedrijf Stadsontwikkeling Gent (Autonomous Municipal Authority for Urban Development of the City of Ghent, Belgium) (together, ‘the non-founding members’) did.

19Digipolis supplied telematics services and related supplies of computer equipment to its members and to third parties.

20Following a tax inspection relating to the years 2014 to 2016, the Belgian State/Federal Public Finance Service took the view that the fees and contributions charged to the non-founding members, that is to say, to members other than those who were public bodies falling within the scope of Article 6 of the VAT Code, ought to have been subject to VAT. According to the Belgian State/Federal Public Finance Service, the non-founding members, in their capacity as autonomous external agencies, ought to be regarded as taxable persons within the meaning of Article 4 of the VAT Code.

21A report and a supplementary report with adjusted amounts were drawn up on 15 December 2017 and 9 January 2018 respectively, by which the Belgian State/Federal Public Finance Service claimed the unpaid VAT due in respect of the years 2014 to 2016 from Digipolis, together with a fine and interest.

22In view of the position adopted by the VAT authorities for the years 2014 to 2016, Digipolis paid VAT for the years 2017 to 2020 on the fees charged to the non-founding members and exercised the corresponding right of deduction. However, in the VAT returns for November and December 2020, Digipolis applied for a refund of the VAT paid. The Belgian State/Federal Public Finance Service rejected that application by decision of 24 February 2021.

23Digipolis brought an action on 7 October 2020 (for the years 2014 to 2016) and another on 19 March 2021 (for the years 2017 to 2020) before the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division, Belgium) seeking, in essence, reimbursement of the sums paid in respect of those years.

24In 2020, Digipolis transferred its business to AG Digipolis Antwerpen and AG District09. On 1 January 2021, Digipolis was dissolved and put into liquidation. The liquidation closed on 30 June 2021.

25By judgment of 7 October 2022, the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) declared that the VAT claim for the years 2014 to 2016 was unfounded and ordered the Belgian State/Federal Public Finance Service to repay the amounts at issue, together with default interest. As regards the years 2017 to 2020, it held that the transactions carried out by Digipolis for the benefit of its members did not fall within the scope of VAT.

26The rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) pointed out that the parties to the main proceedings did not dispute that Digipolis could be classified as a commissioning association and that the ‘emanation’ theory applied to the founding members which came within the scope of Article 6 of the VAT Code, such that the commissioning association was acting in place of those public bodies. It held that the Belgian State/Federal Public Finance Service had, accordingly, accepted that the founding members had waived their regulatory and management rights as regards the supply of telematics services and related applications. In addition, the rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Court of First Instance, Antwerp, Antwerp Division) indicated that it was clear from Article 10 of the Decree on intermunicipal cooperation that, in addition to municipalities and provinces, joint ventures such as autonomous municipal authorities could join a commissioning association. On that basis, that court held that, by joining Digipolis, all the members of that association had knowingly waived their regulatory and management rights as regards the supply of telematics services and related applications. Digipolis was therefore, according to that court, acting as an extension of its members and the transactions which it carried out were not taxable, with the result that there was no need to distinguish between those members according to whether or not they were subject to VAT.

27The Belgian State/ Federal Public Finance Service brought an appeal against the judgment of 7 October 2022 before the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), which is the referring court.

28According to the Hof van beroep te Antwerpen (Court of Appeal, Antwerp), it is common ground between the parties to the main proceedings that the ‘emanation’ theory applies to the founding members. Accordingly, in view of the fact that they waived their regulatory and management rights in matters relating to the provision of telematics services, Digipolis was acting in the place of the founding members and ought therefore to be regarded as an extension of them. The hof van beroep te Antwerpen (Court of Appeal, Antwerp) also notes that it is common ground between the parties to the main proceedings that the amounts paid by the founding members to Digipolis do not, on the same basis, constitute the price of a supply of services, but a financial contribution to management costs, with the result that they are not subject to VAT.

29However, the dispute between the parties to the main proceedings concerns whether the services supplied by Digipolis to non-founding members must be regarded as self-supplies of services, resulting in no VAT being payable on them, or whether it is necessary, in that regard, to distinguish between the members of Digipolis who fall within the scope of Article 6 of the VAT Code and those who are taxable persons within the meaning of Article 4 of the VAT Code, such that the services supplied to non-founding members ought to be subject to VAT.

30In those circumstances, the Hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are Articles 2, 9 and 13 of [the VAT Directive] and the principle of neutrality infringed if those provisions are interpreted as meaning that, by joining a commissioning association, participants who have made a conferral of management are not liable for VAT when they avail themselves of the services of the commissioning association since, in the context of the conferral of management, the latter is deemed to be acting in place of its members, with the result that services provided by the commissioning association to the participants are deemed to be services provided to itself and thus there is no participation in trade [or] taxable transactions?

(2) In the light of th[o]se provisions, should a distinction be made in this respect between [members of] the commissioning association for the purpose of Article 13 of [the VAT Directive] and [members] for the purpose of Articles 9 and 132 of [that directive]?’

Consideration of the questions referred

31By its questions, which will be dealt with together, the referring court is, in essence, asking whether Articles 2, 9 and 13 of the VAT Directive and the principle of neutrality must be interpreted as precluding a legal person governed by public law organised as a commissioning association, whose activity consists of the supply of telematics services and the related supply of computer equipment to its members, in the context of a conferral of management, being regarded, taking account of Belgian tax practice under which those services are regarded as supplied to itself, as not subject to VAT in respect of the services which it supplies to its members and whether, in that regard, a distinction must be made between the members of that association on the basis of their VAT status.

32In order to provide the referring court with a useful response, it is therefore necessary to analyse whether an association such as Digipolis must be regarded as a taxable person for the purposes of VAT and whether the application of the Belgian tax practice at issue is likely to have consequences for that classification.

33The VAT Directive establishes a common system of VAT based, inter alia, on a uniform definition of taxable transactions (see, to that effect, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 49).

34It is necessary, in order to ascertain whether the activities carried out by a commissioning association, such as Digipolis, for its members fall within the scope of the VAT Directive, to examine, first, whether those activities constitute a supply of goods or services for consideration, within the meaning of Article 2(1)(a) and (c) of that directive, and, second, whether they have been carried out independently in the context of an economic activity, within the meaning of Article 9(1) of that directive, with the result that that association has acted as a taxable person (see, to that effect, judgment of 30 March 2023, Gmina O., C‑612/21, EU:C:2023:279, paragraph 24). In addition, it is necessary, depending on the circumstances, to ascertain whether, by way of derogation from the general rule of taxation laid down in Article 9(1) of the VAT Directive, Article 13(1) of that directive precludes a commissioning association such as Digipolis from being a taxable person in respect of the transactions in question, since the application of the latter provision requires a prior finding that the activity in question is economic in nature (see, to that effect, judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 66).

Whether there is a supply of goods or services for consideration

35According to settled case-law, in order for such transactions to be ‘for consideration’ within the meaning of Article 2(1)(a) and (c) of the VAT Directive, there must be a direct link between the supply of goods or services, on the one hand, and the consideration actually received by the taxable person, on the other. Such a direct link is established where there is a legal relationship between the provider of the supply of goods or services, on the one hand, and the recipient, on the other, a legal relationship in which there is reciprocal performance, the remuneration received by the provider of the transactions constituting the actual consideration for the service supplied to that recipient (judgments of 30 March 2023, Gmina O., C‑612/21, EU:C:2023:279, paragraph 25, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 33). Furthermore, the criterion relating to the existence of a legal relationship in the context of which the transactions in question and the consideration for them take place must be interpreted by taking into account all of the circumstances of each individual case, such that the principle of fiscal neutrality is not disregarded, so that it must be given a broad meaning (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 31).

36In order to be regarded as the value actually given in return for the service supplied, the remuneration must remain reasonable in relation to the service supplied in that it must not remunerate only part of the services supplied or to be supplied to the point of breaking the direct link between the services supplied and the consideration. That being said, the fact that the price paid for an economic transaction is higher or lower than the cost price and, therefore, a price higher or lower than the open market value, is irrelevant for the purpose of establishing whether it was a transaction effected ‘for consideration’. That circumstance is not such as to affect the direct link between the services supplied or to be supplied and the consideration received or to be received, the amount of which is determined in advance and according to well-established criteria (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 34 and the case-law cited).

37The direct link between the supply of services and the consideration is broken when the remuneration is awarded in a voluntary and uncertain way so that its amount is practically impossible to determine or where its amount is difficult to quantify or the circumstances relating to its calculation are uncertain (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 36 and the case-law cited).

38However, the fact that compensation is determined not on the basis of individualised services, but at a flat-rate, in advance and annually would not in itself be such as to affect the direct link between the supply of services made and the consideration received (see judgment of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 38 and the case-law cited).

39In the present case, it is apparent from the request for a preliminary ruling and from the observations submitted to the General Court that Digipolis received payments from its members as consideration for the supply of telematics services and related supplies of computer equipment, which enabled it to cover its costs. The legal relationship between Digipolis and its members was set out in its articles of association, which in turn had to comply with the Decree on intermunicipal cooperation.

40As is apparent from the case-law cited in paragraphs 36 to 38 above, neither the fact that the payments made to a commissioning association such as Digipolis serve only to cover the operating costs of that association and do not enable it to make a profit, nor the fact that the members’ contributions are established in advance by reference to various allocation keys and on a flat-rate basis preclude the transactions carried out by that association for the benefit of its members from being regarded as carried out for consideration within the meaning of Article 2(1)(a) and (c) of the VAT Directive.

Whether a commissioning association such as Digipolis is liable to VAT

41The VAT Directive attributes a very wide scope to VAT. Indeed, the terms used in Article 9(1) of the VAT Directive, in particular the term ‘any person who’, give to the notion of ‘taxable person’ a broad definition, focused on independence in the exercise of an economic activity, to the effect that all persons – natural or legal, both public and private, even entities devoid of legal personality – who, in an objective manner, satisfy the criteria set out in that provision must be regarded as being taxable persons for the purposes of VAT and to the effect that the concept of ‘economic activity’, is itself defined broadly as comprising all activities of producers, traders and persons supplying services and, in particular, the exploitation of tangible or intangible property for the purpose of obtaining income therefrom on a continuing basis. It is the existence of such an activity carried out independently which establishes the status as a taxable person (see, to that effect, judgment of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraphs 18 and 28 and the case-law cited).

Whether there has been a supply of goods or services in the context of an economic activity

42‘Economic activity’ within the meaning of Article 9(1) of the VAT Directive is an objective concept, in the sense that the activity is considered per se and without regard to its purpose and results (see judgments of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 34 and the case-law cited, and of 4 July 2024, Latvijas Informācijas un komunikācijas tehnoloģijas asociācija, C‑87/23, EU:C:2024:570, paragraph 42 and the case-law cited).

43An activity is thus, in general, classified as economic where it is permanent and is carried out in return for remuneration which is received by the person carrying out the transaction, which implies that the remuneration itself must be regarded as having a continuing basis (see judgments of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 42 and the case-law cited, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 42 and the case-law cited).

– The criterion of a continuing basis

44The question whether an activity is designed to obtain income on a continuing basis is an issue of fact which must be assessed having regard to all the circumstances of the case (see judgment of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraph 29 and the case-law cited).

45The fact that an activity is carried out over a period of a number of years, determined in advance, does not preclude it from being regarded as having a continuing basis (see, to that effect, judgments of 2 June 2016, Lajvér, C‑263/15, EU:C:2016:392, paragraphs 30, 33 and 37, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 45 and the case-law cited).

46In the present case, the fact that Digipolis was established for a period of 18 years, in accordance with its articles of association and the Decree on intermunicipal cooperation, in order to carry out telematics activities for which it received, throughout that period, payments from its members, demonstrates the continuing basis on which it carried out its activity for the purpose of the case-law cited in paragraph 43 above.

– The criterion relating to the activity being carried out ‘for remuneration’

47In order to determine whether a supply of services is supplied in return for remuneration, so that the activity in question is to be classified as an economic activity, all the circumstances in which it is supplied have to be examined (judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 29, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 43).

48Comparing the circumstances in which the person concerned supplies the services in question with the circumstances in which that type of service is usually provided, that is to say, in the present case, by a private provider in the telematics sector, may therefore be one way of ascertaining whether the activity concerned is an economic activity (see, to that effect, judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 30, and of 30 March 2023, Gmina L., C‑616/21, EU:C:2023:280, paragraph 43).

49In that context, it may be relevant to take into account whether, in the exercise of the activity in question, the person whose liability to VAT is under examination is active in the market concerned (see, to that effect, judgment of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 35).

50Other factors, such as, inter alia, the number of customers and the amount of earnings, in particular whether they make it possible to cover the operating costs of the operator, may be taken into account along with others when that question is under consideration (judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 31, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 44).

51In the present case, first, it is apparent from the objective nature of the concept of ‘economic activity’ that the activity is considered ‘per se’, and without regard to its purpose and results (see paragraph 42 above). It follows that both the fact that the services at issue in the main proceedings were supplied in the context of the conferral of management of Digipolis’ members’ telematics and the fact that Digipolis was supposed to carry out that activity in place of its members, so that they could achieve economies of scale and in order to optimise telematics activities from a staff and functional point of view, are irrelevant.

52There is nothing to prevent private operators on the market from carrying out activities in the telematics sector.

53Second, while Digipolis’ activities in the telematics sector were focused primarily on its members and while the nature of persons who may be members of a commissioning association is strictly limited by the Decree on intermunicipal cooperation, it appears that Digipolis also provided its services, on an ad hoc basis, to other customers. Indeed, the referring court stated that Digipolis also provided services to third parties.

54Third, while the financial contributions determined annually, in advance and paid by Digipolis’ members to Digipolis were not supposed to enable it to make a profit, they were however supposed to cover its costs (see paragraph 39 above).

55The contributions paid to Digipolis cannot therefore be treated in the same way as fees in an amount corresponding to only a small part of the costs incurred, which precludes the activity at issue in the main proceedings from being regarded as an activity carried out ‘for remuneration’ (see, to that effect, judgments of 29 October 2009, Commission v Finland, C‑246/08, EU:C:2009:671, paragraphs 37, 38, 50 and 51), and of 30 March 2023, Gmina L., C‑616/21, EU:C:2023:280, paragraph 46 and the case-law cited).

56Fourth, as regards the fact, relied on by the defendants in the main proceedings, that Digipolis did not actively canvass the market in order to provide its services to third parties and did not advertise, it has been held that it cannot be inferred from the case-law that the fact of taking active steps to market property is a necessary condition for an activity relating to property asset management to be regarded as being carried out for the purpose of obtaining income therefrom on a continuing basis and therefore to be classified as ‘economic’ (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraphs 74 and the case-law cited). Such case-law may be transposed, mutatis mutandis, to the telematics sector.

57Consequently, while the conditions under which Digipolis carried out its activity consisting of supplying telematics services and the related supply of computer equipment are not identical in all respects to the conditions under which such an activity is carried out by a private operator, they appear to be sufficiently similar for that activity to be classified as an activity carried out for remuneration.

Whether an economic activity is carried out independently

58As the Advocate General observed in point 54 of his Opinion, the independence criterion must, like the concept of ‘taxable person’, be interpreted broadly.

59The same criteria for assessing the condition of independence in the exercise of economic activities, laid down in Article 9(1) of the VAT Directive, may apply to public and private persons (judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 35).

60In order to establish whether a commissioning association such as Digipolis independently carries out economic activities, it is necessary to ascertain whether, in the pursuit of its activities, it is in an employer-employee relationship vis-à-vis its members (see, to that effect, judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 33).

61In that regard, in order to assess whether that employer-employee relationship exists, it is necessary to check whether the person concerned performs his or her activities in his or her own name, on his or her own behalf and under his or her own responsibility and whether he or she bears the economic risk associated with carrying out his or her activities (judgments of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 34, and of 21 December 2023, Administration de l’enregistrement, des domaines et de la TVA (VAT – Member of a board of directors), C‑288/22, EU:C:2023:1024, paragraph 52).

62In order to find that activities carried out by operators not integrated into the public administration are independent, the case-law has taken into account the complete absence of any employer-employee relationship between such operators and public authorities, as well as the fact that such operators acted on their own account and under their own responsibility, were free to arrange how they performed their work and themselves received the emoluments which made up their income (see judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 34 and the case-law cited). It is also apparent from the case-law that convergent economic interests between an association and the persons which make up that entity are not sufficient to support a finding that that association does not exercise its activities ‘independently’ (judgment of 17 December 2020, WEG Tevesstraße, C‑449/19, EU:C:2020:1038, paragraph 32).

63It also follows from the case-law that the fact that the person concerned is not acting in his or her own name and on his or her own behalf (see, to that effect, judgment of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraphs 74 to 77), or that it does not assume the responsibility and economic risk entailed by the transaction in question (judgments of 18 October 2007, van der Steen, C‑355/06, EU:C:2007:615, paragraphs 23 to 26, and of 13 June 2019, IO (VAT – Activities of a member of a supervisory board), C‑420/18, EU:C:2019:490, paragraphs 42 and 43), makes it possible to rule out such a transaction having been carried out independently.

64Admittedly, it is settled case-law that, in view of the purpose of the VAT Directive, which is intended to determine the basis of assessment for VAT in a uniform manner and in accordance with EU rules, the status of taxable person must be interpreted in a uniform manner in all the Member States and assessed exclusively on the basis of the criteria set out in Article 9(1) of the VAT Directive (see judgment of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraph 31 and the case-law cited).

65However, taking provisions of national law into account may be useful in determining whether, in circumstances such as those in the main proceedings, the criteria for considering that an economic activity has been carried out independently are satisfied (judgment of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraph 32). While it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret national law, to determine whether the activity in question was carried out independently, the General Court, which is called upon to provide answers of use to the national court, may provide guidance, based on the file in the main proceedings and on the observations submitted to it, which may enable the national court to give judgment in the specific case before it (see, to that effect, judgments of 12 May 2016, Gemeente Borsele and Staatssecretaris van Financiën, C‑520/14, EU:C:2016:334, paragraph 32, and of 3 April 2025, Grzera, C‑213/24, EU:C:2025:238, paragraph 33).

66In the present case, even if Digipolis carried on its activities by virtue of a transfer of powers authorised by its members, who held the entirety of its share capital, and if its management bodies were made up of representatives of its members, which, in fact, limited its autonomy, it was a legal person governed by public law which was independent of its members, and had its own articles of association, registered office, bodies, capital, assets, budget and employees. Accordingly, it would seem to be clear from those circumstances that it was not an internal structure of its members and that it was not integrated into them, but that it had sufficient organisational freedom in terms of human and material resources when it carried out its activities.

67It was also Digipolis, and not its members, which took part in the procedure before the tax authorities and brought legal proceedings in order to protect its rights (see paragraphs 20 to 24 above).

68It is therefore for the referring court to ascertain whether Digipolis acted in its own name and on its own behalf, as appears to be apparent from the factors referred to in paragraphs 66 and 67 above.

69Moreover, having regard to its legal personality, assets and share capital, it appears that Digipolis carried out its activities under its own responsibility and that it bore the economic risk associated with carrying out those activities, which, however, it is also for the referring court to ascertain.

70In those circumstances, it appears that Digipolis carried out its activities independently, such that it satisfied the conditions to be classified as a taxable person.

The absence of liability to tax arising from transactions being engaged by a body governed by public law as a public authority

71Under the first and second paragraphs of Article 13(1) of the VAT Directive, States, regional and local government authorities and other bodies governed by public law are not to be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities, unless treatment as non-taxable persons would lead to significant distortions of competition.

72As a derogation from the general rule that any activity of an economic nature is subject to VAT, that provision must be interpreted strictly (judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 77).

73According to settled case-law, it follows from the very wording of that provision that, in order for the rule of treatment as a non-taxable person to apply, two cumulative conditions must be satisfied: the activities in question must be carried out by a body governed by public law and that body must act as a public authority (judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 78).

74In the first place, as regards the first of the conditions referred to in paragraph 73 above, it is apparent from Article 10 of the Decree on intermunicipal cooperation that two or more municipalities may establish a joint venture with legal personality to achieve objectives belonging to one or more substantively related policy areas. Also, it is apparent from the request for a preliminary ruling and from the extract from Digipolis’ registration in the Belgisch Staatsblad that Digipolis was a legal person governed by public law in the form of a commissioning association. Accordingly, a body such as Digipolis appears to meet the definition of a body governed by public law, as provided for in the first subparagraph of Article 13(1) of the VAT Directive, which it is for the referring court to ascertain.

75Furthermore, it has already been held that a commissioning association under Belgian law, such as Digipolis, appeared to fall within the definition of a body governed by public law within the meaning of Article 13(1) of the VAT Directive (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraphs 18 and 50).

76However, it must be ensured that the second condition laid down in the first subparagraph of Article 13(1) of the VAT Directive is satisfied. Only activities engaged in by a body governed by public law acting as a public authority are exempt from VAT.

77As regards the second condition referred to in paragraph 76 above, it is the manner in which the activities at issue are carried out that determines the scope of the treatment of bodies governed by public law as non-taxable persons. Thus, activities carried out as public authorities for the purposes of the first subparagraph of Article 13(1) of the VAT Directive are those engaged in by bodies governed by public law under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private traders (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 78 and the case-law cited).

78It has also been held that the subject matter or purpose of the activity is in that regard irrelevant and that the fact that the pursuit of the activity in question involves the use of powers conferred by public law shows that that activity is subject to a public law regime (see judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct), C‑604/19, EU:C:2021:132, paragraph 79 and the case-law cited).

79In the present case, there is nothing in the file to suggest that, in the context of the activity in question vis-à-vis its members, Digipolis made use of the powers of a public authority. On the contrary, Digipolis appears to have performed its activities under the same conditions as private economic operators, which it is for the referring court to ascertain.

80In the second place, since private operators may supply telematics services, to make commissioning associations which provide such services, such as the association in the main proceedings, not liable to tax could lead to significant distortions of competition, which it is for the referring court to ascertain. Those associations would then have to be regarded as taxable persons, pursuant to the second subparagraph of Article 13(1) of the VAT Directive.

81In the third place, as the Advocate General correctly maintains in point 68 of his Opinion, in accordance with the third subparagraph of Article 13(1) of the VAT Directive, bodies governed by public law are regarded as taxable persons when they carry out, to a non-negligible extent, activities listed in Annex I to that directive. Those activities include telecommunications services. It is common ground that telematics combines information technology with telecommunications. In their observations submitted to the General Court, Digipolis’ successors in title also assert that ‘telematics’ refers to telecommunications and information technology activities. In the present case, given that those services were provided over a prolonged period to Digipolis’ members or to third parties, and that they constituted Digipolis’ main activity, they cannot be regarded as negligible.

82Accordingly, the first subparagraph of Article 13(1) of the VAT Directive does not appear to be applicable to the activities carried out by Digipolis vis-à-vis its members.

83Furthermore, it must be stated that the question referred for a preliminary ruling mentions Article 13 of the VAT Directive as a whole, which also includes paragraph 2 under which Member States may regard the activities of bodies governed by public law as activities in which those bodies engage as public authorities where those bodies are exempt under certain provisions of that directive, which it lists. However, it may follow from the second and third subparagraphs of Article 13(1) that a commissioning association such as Digipolis must be regarded as a taxable person irrespective of the fact that its activities may be classified as activities engaged in as a public authority as provided for in the first subparagraph of Article 13(1) of that directive (see paragraphs 80 and 81 above).

Whether the status of the members of the commissioning association, such as Digipolis, has any influence in relation to VAT

84First, as Digipolis correctly maintains, in accordance with Article 2(1) of the VAT Directive, only the supply of goods and services within the territory of a Member State ‘by’ a taxable person acting as such is subject to VAT. It is the status and activity of the person performing the transactions in question, and not the status of the recipients of those supplies or services, which are decisive in order to determine whether those transactions are subject to VAT, as the Advocate General observed in points 75 and 76 of his Opinion.

85Second, it is apparent from the case-law cited in paragraph 77 above that it is the manner in which the activities at issue are carried out which determine the scope of the treatment of bodies governed by public law as non-taxable persons.

86In the present case, it is therefore necessary to assess whether Digipolis satisfies the second condition laid down in the first subparagraph of Article 13(1) of the VAT Directive in the light of the supply of telematics services and related supplies of computer equipment.

87First, as stated in paragraph 79 above and subject to the assessment to be carried out by the referring court, there is nothing to suggest that activities consisting, for a body governed by public law, in providing telematics services and supplying computer equipment involved the use of powers of a public authority. Second, not only could the fact of Digipolis not being liable to VAT lead to significant distortions of competition, but those activities in themselves appear to preclude the body governed by public law which carries them out from being not liable to tax (see paragraphs 80 and 81 above).

Interpretation of the principle of neutrality of VAT

88The principle of fiscal neutrality was intended by the EU legislature to reflect, in matters relating to VAT, the general principle of equal treatment. It precludes in particular treating economic operators carrying out the same transactions differently for VAT purposes (judgment of 16 February 2023, DGRFP Cluj, C‑519/21, EU:C:2023:106, paragraph 88).

89In the light of the foregoing analysis, it is not necessary to answer the question regarding Digipolis’ liability to VAT from the point of view of the principle of neutrality of VAT.

The possible consequences of the ‘emanation’ theory for the liability to tax of a commissioning association such as Digipolis

90As the Advocate General observed, in essence, in points 57 to 61 of his Opinion, the effect of the ‘emanation’ theory in Belgian law, in so far as it introduces a legal fiction under which a supply of services by a commissioning association to its members is regarded as a self-supply of services to itself by those members and is therefore not subject to VAT, is to establish a situation which falls outside the scope of tax and which is not laid down in the VAT Directive, in particular Articles 11 and 13 thereof.

91In that regard, since it is apparent from the documents before the Court, which must be reviewed by the referring court, that Digipolis provides services for consideration and independently carries out an economic activity, it must, in principle, be regarded as a taxable person for the purposes of the VAT Directive. The application of the ‘emanation’ theory cannot call into question that status which arises from the VAT Directive or have the effect of exempting those services from taxation.

92Taking account of the foregoing, the answer to the questions submitted for a preliminary ruling is that Articles 2, 9 and 13 of the VAT Directive must be interpreted as meaning that:

– a legal person governed by public law organised as a commissioning association, whose activity consists in supplying telematics services and making related supplies of computer equipment to its members in the context of a conferral of management, must be regarded as liable to VAT, there being no need, in that regard, to distinguish between its members according to their status for VAT purposes, provided that those services are supplied for consideration and that that association carries out, independently, an economic activity;

– a national tax practice leading to those supplies of services being analysed as self-supplies of services performed by the members of the commissioning association is not such as to call into question that association’s liability to VAT.

Costs

93Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the General Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds,

THE GENERAL COURT (Chamber giving preliminary rulings)

hereby rules:

Articles 2, 9 and 13 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that:

– a legal person governed by public law organised as a commissioning association, whose activity consists in supplying telematics services and making related supplies of computer equipment to its members in the context of a conferral of management, must be regarded as liable to value added tax (VAT), there being no need, in that regard, to distinguish between its members according to their status for VAT purposes, provided that those services are supplied for consideration and that the association carries out, independently, an economic activity;

– a national tax practice leading to those supplies of services being analysed as self-supplies of services performed by the members of the commissioning association is not such as to call into question that association’s liability to VAT.

Signatures

Papasavvas

Półtorak

Sampol Pucurull

Steinfatt

Valasidis

Delivered in open court in Luxembourg on 25 February 2026.

[Signatures]

Notes

* Language of the case: Dutch.

OPINION OF ADVOCATE GENERAL

MARTÍN y PÉREZ DE NANCLARES

delivered on 22 October 2025 ¹

(Reference for a preliminary ruling – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(c) – Taxable transactions – Articles 9 to 13 – Concept of ‘taxable person’ – Intermunicipal cooperation – Provision of services by an association to its members for remuneration – Belgian administrative tolerance which allows the association and its members to be regarded as a single taxable person)

I. Introduction

1This request for a preliminary ruling, made by the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), requires the Court to interpret Directive 2006/112/EC, ² in particular Article 9 thereof, which contains the definition of the concept of ‘taxable person’, based on the independent exercise of an economic activity.

2In the main proceedings, the Belgian tax authorities and the successors to a public legal entity, established as an association, are in dispute as to whether the services provided by the latter to some of its members must be subject to value added tax (VAT), in that those services were supplied independently by a taxable person or, on the contrary, whether they must be classified as internal transactions, which therefore fall outside the scope of Directive 2006/112.

3The dispute between the parties to the main proceedings arises from Belgian law and, more specifically, from an administrative tolerance based on a legal theory known as ‘the emanation theory’. That theory allows a ‘commissioning’ association to be regarded as acting as an extension of its members, with the result that its services to its members constitute internal self-supplies and are therefore non-taxable.

4The referring court has doubts as to whether that tolerance is compatible with Directive 2006/112.

II. Legal framework

A. European Union law

5In accordance with Article 2(1)(c) of Directive 2006/112, ‘the supply of services for consideration within the territory of a Member State by a taxable person acting as such’ is subject to VAT.

6The first subparagraph of Article 9(1) of that directive provides:

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

7The first paragraph of Article 11 of that directive provides:

‘… each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.’

8Article 13(1) of that directive is worded as follows:

‘… local government authorities and other bodies governed by public law shall not be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities …

However, … they shall be regarded as taxable persons in respect of those activities or transactions where their treatment as non-taxable persons would lead to significant distortions of competition.

In any event, bodies governed by public law shall be regarded as taxable persons in respect of the activities listed in Annex I, provided that those activities are not carried out on such a small scale as to be negligible.’

9Article 132 of Directive 2006/112 lays down exemptions for certain activities in the public interest. Paragraph 1(f) thereof provides:

‘Member States shall exempt the following transactions:

…

the supply of services by independent groups of persons, who are carrying on an activity which is exempt from VAT or in relation to which they are not taxable persons, for the purpose of rendering their members the services directly necessary for the exercise of that activity …’

10Annex I to that directive sets out a list of activities referred to in the third subparagraph of Article 13(1) of that directive. Point 1 of that annex refers to ‘telecommunications services’.

B. Belgian law

1. The Belgian VAT Code

11The request for a preliminary ruling contains references to the Belgian VAT Code, without identifying the applicable version and without reproducing the provisions referred to.

12The order for reference nevertheless makes it possible to understand that Articles 4, 6 and 44 of that code are intended to transpose Articles 9, 13 and 132 of Directive 2006/112 respectively. Accordingly, Article 4 of the Belgian VAT Code defines the concept of ‘taxable person’, Article 6 of that code governs the treatment of certain bodies regulated by public law as non-taxable persons and Article 44 of that code contains exemptions for certain activities in the public interest.

2. The Decree on intermunicipal cooperation

13In the version applicable to the dispute in the main proceedings, the Decreet van Intergemeentelijke Samenwerking (Decree on intermunicipal cooperation) of 6 July 2001 (Belgisch Staatsblad, 31 October 2001, p. 37836) provided in Article 10 thereof:

‘Two or more municipalities may establish a joint venture with legal personality to achieve objectives belonging to one or more substantively related policy areas. …’

14Under Article 12(1) of that decree:

‘1. The municipalities decide on the conferral of management in accordance with the Articles of Association of the joint venture.

Conferral of management means the entrusting by the participating municipalities to the joint venture of the implementation of decisions taken by them within the framework of its objectives, in the sense that the participating municipalities deny themselves the right to carry out the same task independently or jointly with third parties.’

15Paragraph 2 of that article provided that there are three forms of joint venture with legal personality, including the ‘commissioning association’, defined as ‘a joint venture with conferral of management to which the participating municipalities entrust the implementation of one or more clearly defined competences relating to one or more functionally related policy areas’.

3. The emanation theory

16It is apparent from the request for a preliminary ruling that the emanation theory is the basis for an ‘administrative tolerance’ which has its origins in Orders No 148/1971 of 5 October 1971 and No 6/1975 of 27 February 1975 (‘Orders No 148/1971 and No 6/1975’).

17With regard to the scope of that theory, the referring court reproduced the reply of the minister van Financiën (Minister for Finance) of 25 May 2018 to parliamentary question No 2188 of 19 April 2018 (‘the ministerial reply to parliamentary question No 2188’), which states as follows:

‘Commissioning associations are indeed treated in the same way as intermunicipal companies in terms of VAT, with member municipalities having relinquished their regulatory and management rights. … Where participants have waived their regulatory and management rights, the “emanation theory” applies.

The emanation theory involves ignoring the fact that the activity is carried out by the commissioning association. From a VAT perspective, the activity is deemed to be carried out by the participants in the commissioning association themselves.

…

[That] fact … also has implications for the services performed by the commissioning association for the participants. Services performed by a commissioning association for its participants are deemed to be services to itself.

For the purposes of the conferral of management, the commissioning association is deemed to be acting “in place of” and not “on behalf of” its participants. A self-supply of services does not in principle fall within the scope of VAT, which means that in the relationship between the commissioning association and its participants, there are in principle no services subject to VAT either.

The VAT status of the participants is not relevant here, since internal operations do not fall within the scope of VAT, irrespective of whether the participant qualifies as a public body under Article 6 of the [Belgian] VAT Code or a normal VAT taxable person under Article 4 of the [Belgian] VAT Code.’

III. The facts giving rise to the dispute and the request for a preliminary ruling

18The dispute in the main proceedings is between the Belgische Staat/Federale Overheidsdienst Financiën (Belgian State/Federal Public Finance Service) (‘the tax authorities’) and Digipolis Antwerpen AG and AG District 09 (‘the successors to Digipolis’).

19In 2020, those companies took over the activities of a public legal entity established in 2003 in the form of a ‘commissioning’ association called ‘Digipolis’.

20The founding members of Digipolis included Belgian cities. In 2010, other public legal entities engaged in activities in the public interest, such as childcare and community development, joined that association (‘the non-founding members’).

21Digipolis provided information and communication technology services, including, in particular, telematics services, to its members and third parties.

22Following a tax audit carried out in 2017, the tax authorities found that the services provided to the non-founding members during the years 2014 to 2016 should have been subject to VAT. Consequently, they claimed from Digipolis the VAT that would have been due for those years.

23For the years 2017 to 2020, Digipolis paid VAT on the services provided to the non-founding members, while requesting a correction and refund of that tax. That request was rejected by the tax authorities.

24According to the first instance court, before which proceedings were brought by the successors to Digipolis, the tax authorities wrongly found that the services in question were subject to VAT.

25The tax authorities appealed against that judgment before the referring court, arguing that the services provided by Digipolis to the non-founding members were subject to VAT. The position would be different only if the emanation theory applied. However, only the members of Digipolis which are regarded as non-taxable public bodies for the purposes of Article 6 of the Belgian VAT Code could benefit from VAT exemption on the basis of that theory. The non-founding members regarded as ordinary taxable persons for the purposes of Article 4 of that code would be excluded from that benefit.

26The successors to Digipolis take the view, by contrast, that it follows from the ministerial reply to parliamentary question No 2188 that the emanation theory applies to services provided by a commissioning association to its non-founding members. Accordingly, those services are deemed to be self-supplies, carried out within a single taxable person and therefore do not fall within the scope of VAT.

27Taking the view that, in order to resolve that dispute, it is necessary to interpret Directive 2006/112 and the principle of fiscal neutrality, the hof van beroep te Antwerpen (Court of Appeal, Antwerp) decided to stay the proceedings and, under the procedure provided for in Article 267 TFEU, to refer for a preliminary ruling the following question, which comprises two parts:

‘Are Articles 2, 9 and 13 of […] Council Directive [2006/112] and the principle of neutrality infringed if those provisions are interpreted as meaning that, by joining a commissioning association, participants who have made a conferral of management are not liable for VAT when they avail themselves of the services of the commissioning association since, in the context of the conferral of management, the latter is deemed to be acting in place of its members, with the result that services provided by the commissioning association to the participants are deemed to be services provided to itself and thus there is no participation in trade [or] taxable transactions? In the light of these provisions, should a distinction be made in this respect between participants in the commissioning association for the purpose of Article 13 of [Directive 2006/112] and participants for the purpose of Articles 9 and 132 of [Directive 2006/112]?’

IV. The procedure before the Court of Justice and the General Court

28This request for a preliminary ruling was lodged at the Registry of the Court of Justice on 22 October 2024. Pursuant to Article 50b of the Statute of the Court of Justice of the European Union, the request was transferred to the General Court.

29The parties to the main proceedings and the European Commission submitted written observations and participated at the hearing held on 5 September 2025.

V. Legal assessment

30In the light of the particularly brief statement of grounds which, according to the referring court, justified its decision to refer the matter, the meaning and scope of the question referred cannot be determined clearly. I therefore consider it necessary, first, to identify the premisses on which that question is actually based (A), which will enable me, secondly, to carry out the legal analysis of that question (B), leaving to one side the points of law which, in the present case, do not require the Court’s interpretation.

A. The scope of the question referred

31In the well-known procedural context of the preliminary ruling procedure, ³ it is for the General Court to provide the national court with an answer which will be of use to it and enable it to determine the case before it, by reformulating, where necessary, the questions referred to it. ⁴ Reformulation is often a delicate question and requires a careful examination of the request for a preliminary ruling. In that connection, it is necessary to extract from all the information provided by the national court the points of EU law which actually require interpretation, having regard to the subject matter of the dispute. ⁵

32According to my reading of the request for a preliminary ruling, it is apparent that the referring court is uncertain, in essence, as to the compatibility of the emanation theory with EU law (1). However, contrary to what is stated in the written observations submitted to the Court, the referring court does not ask whether Digipolis fulfils the conditions for the application of Articles 2, 9 and 13 of Directive 2006/112 (2). An analysis of the subject matter of the main proceedings and the questions submitted by the referring court will enable me to draw conclusions as to the scope of the question referred (3).

1. The questions from the referring court

33In the present case, in order to justify the question referred for a preliminary ruling, the referring court simply refers to the ‘dispute between the parties’.

34In my view, the parties to the main proceedings disagree as to whether the emanation theory should be applied in order to determine whether the services in question, provided by Digipolis to its non-founding members, are subject to VAT.

35In that regard, it is apparent from the request for a preliminary ruling that the emanation theory was developed by the tax authorities in Orders No 148/1971 and No 6/1975 and that its purpose was set out in detail in the ministerial reply to parliamentary question No 2188.

36It is also apparent that that theory is the basis for an administrative tolerance, ⁶ which applies to the tax treatment of services provided by ‘commissioning associations’. These are public law entities entrusted by their members with providing certain services under a ‘conferral of management’, which means that those members waive their right to provide those services themselves. ⁷ In so far as those conditions are satisfied, the commissioning association and its members are deemed to form a single taxable person for the purposes of VAT liability.

37At the hearing, the Belgian State essentially confirmed that interpretation, while noting that the emanation theory consists of two aspects, one external and the other internal. The first aspect reflects the historical purpose of that theory, namely the outsourcing to a third party of powers legally conferred on municipalities. That entity then exercises those powers in the name and on behalf of the participating municipalities, for the benefit of citizens. In that situation, the commissioning association should be regarded as an extension of its members. The second aspect of that theory covers a situation which is ‘atypical’ by comparison with the historical purpose of the emanation theory, namely that of services provided by a commissioning association to its members, which are deemed to be self-supplies.

38It is that second aspect which is at issue in the main proceedings. In that regard, the parties to the main proceedings disagree as to whether, in the light of the scope of the emanation theory, its benefits are available exclusively to the municipalities which participate in a commissioning association, such as Digipolis, or whether those benefits may be extended to other members, which are typically public law entities operating in the municipal sphere, such as the non-founding members in the present case.

39At the hearing, the parties explained at length their disagreements on that subject. However, I consider that the question whether certain public law entities can benefit from the emanation theory requires an interpretation of the scope of that theory. This is a question of Belgian law, the resolution of which does not fall within the jurisdiction of the Court. According to its case-law, the Court is bound by the assessment of the referring court. ⁸

40In my view, the referring court implicitly but necessarily starts from the premiss that the services in question are likely to fall within the scope of the emanation theory, irrespective of the status of the non-founding members. ⁹ Moreover, the information contained in the request for a preliminary ruling does not suggest that the application of that theory is limited to services to municipalities. On the contrary, the ministerial reply to parliamentary question No 2188, reproduced in that request, expressly refers to the application of that theory to all the members of a commissioning association, irrespective of whether they are taxable persons or non-taxable persons within the meaning of Articles 4 and 6 of the Belgian VAT Code.

41If the referring court is asking the Court to rule on the applicability of the emanation theory, it is exclusively in the light of EU law. In my view, it follows that, by its question, the referring court seeks to determine whether that theory is compatible with the requirements arising from Directive 2006/112 and the principle of fiscal neutrality.

2. The absence of a question on the liability of Digipolis for VAT

42As already indicated, contrary to what is stated in the written observations submitted to the Court, I consider that the referring court is not seeking to ascertain whether, in the present case, Digipolis fulfils the conditions for the application of Articles 2, 9 and 13 of Directive 2006/112, even though it expressly referred to those provisions in the question referred. It seems to me that the request for a preliminary ruling is based on two premisses. First, pursuant to Article 9 of Directive 2006/112, Digipolis must be regarded as a taxable person, on the ground that it independently carries out an economic activity, namely the provision of telematics services to its members and third parties. Secondly, since those services are provided for remuneration, they fall within the scope of that directive, as defined in Article 2(1)(c) thereof. They are therefore subject to VAT, unless the emanation theory allows the opposite result to be achieved. ¹⁰

43For the purposes of the present reference for a preliminary ruling, it must therefore be considered that, under Articles 2 and 9 of Directive 2006/112, the services in question are, in principle, subject to VAT.

44Several grounds may be relied on in support of that interpretation of the order for reference.

45On the one hand, I consider that the referring court notes that the emanation theory establishes a legal fiction through the use of the term ‘deemed’ (in Flemish: ‘geacht’) to describe the effects of that theory. This therefore leads to a situation in which the services in question, provided by Digipolis, ‘are deemed to be services provided to itself’, by way of derogation, in particular, from the criterion of independence laid down in Article 9 of Directive 2006/112.

46On the other hand, it seems unlikely to me that the purpose of the request for a preliminary ruling could be to determine the applicability of Article 9 of Directive 2006/112 to the present case. First of all, I tend to the view that the account of the facts set out in the request for a preliminary ruling is not such as to enable the Court to provide further clarification in that regard. Next, when requested to give a preliminary ruling, the Court does not have jurisdiction to apply the rules of law to a specific situation. ¹¹ Finally, in my view, the relevant case-law contains useful elements for the practical application of Article 9 of Directive 2006/112 in the present case, such as guidance on assessing the relationship between an association and its members in the light of the criterion of independence laid down in that article. ¹²

3. Conclusions on the scope of the question referred

47All of the foregoing considerations lead me to conclude that, by the first part of the question referred, the referring court seeks to ascertain whether Directive 2006/112 and the principle of fiscal neutrality must be interpreted as precluding the application of national legislation or of a national administrative practice under which services provided by an association to its members, for remuneration, are deemed to be internal transactions, with the result that they fall outside the scope of that directive, although that association, acting independently, must be regarded as a taxable person within the meaning of Article 9 of that directive.

48I consider that it is in that context that it is necessary to address the second part of the question referred, which seeks to ascertain whether the Court’s answer might vary if the non-founding members of Digipolis – as recipients of the services in question – are regarded not as taxable persons within the meaning of Article 9 of Directive 2006/112, but as non-taxable public bodies for the purposes of Article 13 of that directive.

B. Analysis of the question referred

49As I have just explained, the referring court appears to consider that the emanation theory, in so far as it allows for a derogation from the criterion of independence laid down in Article 9 of Directive 2006/112, could be contrary to that directive. It is therefore for the Court to examine whether that directive, and in particular Article 9 thereof, leaves Member States with a margin of discretion which allows the tax authorities to preclude the applicability of that directive under the conditions set out by the emanation theory.

50It is to that end that I shall analyse, in turn, the requirements arising from Article 9 of Directive 2006/112 (1) and from Articles 11 and 13 of that directive (2), with a view to determining the compatibility of the emanation theory with those provisions. Finally, I shall address the referring court’s questions concerning the possible effect which the status of the recipients of the services could have on the compatibility of that theory with EU law (3).

1. The compatibility of the emanation theory with Article 9 of Directive 2006/112

51It is clear from settled case-law that Directive 2006/112 attributes, through the concept of ‘taxable person’, a very wide scope to VAT. ¹³ That concept is the subject matter of the provisions of Title III of that directive, namely Articles 9 to 13.

52In that regard, it seems useful to recall that, in order to ensure the uniform application of that directive, the concept of ‘taxable person’ must be interpreted autonomously, regardless of the purpose and results of the transactions concerned. ¹⁴ I consider, in particular, that it is exclusively on the basis of the criteria laid down in Article 9 of Directive 2006/112, which must be interpreted in the light of the other provisions of Title III thereof, that a person’s status as a taxable person must be assessed. It follows that all persons – natural or legal, both public and private, even entities devoid of legal personality – which, in an objective manner, satisfy the criteria set out in Article 9(1) of that directive are regarded as being taxable persons for the purposes of VAT. ¹⁵

53As set out in Article 9(1) of that directive, ‘“taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity’. The terms used in that provision, in particular the term ‘any person who’, give the notion of ‘taxable person’ a broad definition focused on independence in the pursuit of an economic activity. ¹⁶

54As Advocate General Cosmas has already pointed out with regard to Article 4(4) of the Sixth VAT Directive, it follows from a systematic analysis of Title III of Directive 2006/112 that the term ‘independently’ must also be interpreted broadly. That assessment is supported by Articles 10 and 11, which come under Title III and contain negative definitions of that word. ¹⁷ Article 10 provides examples of working relationships in which there is typically a relationship of employer and employee, excluding the independent exercise of an economic activity. ¹⁸ Article 11 allows any persons who, while legally independent, are closely bound to one another by financial, economic and organisational links to be regarded as a single taxable person. ¹⁹

55It is in that regulatory context that the Court of Justice has developed criteria for assessing whether, in addition to the situation referred to in Article 11 of Directive 2006/112, legally separate persons may be regarded as not being independent. ²⁰

56Thus, in order to establish whether a person independently carries out an economic activity, for the purposes of Article 9 of Directive 2006/112, it is necessary to ascertain whether there is an employer-employee relationship in the pursuit of that activity. This is ascertained on the basis of a typological description, involving an examination of all the conditions under which the activity is carried out, on a case-by-case basis. In that context, it is necessary to check whether the person concerned performs his or her activities in his or her own name, on his or her own behalf and under his or her own responsibility, and whether he or she bears the economic risk associated with carrying out those activities. ²¹ With regard in particular to the independence of legal entities from the persons comprising them or from their members, it seems appropriate to me to point out that the Court of Justice has found that convergent economic interests are not sufficient to support a finding that such an entity does not exercise its activities ‘independently’. ²²

57I consider that the emanation theory, as presented by the referring court, disregards the criterion of independence laid down in Article 9 of Directive 2006/112. It establishes a legal fiction which allows a service provider and a service recipient to be considered to constitute a single taxable person, whereas, in the light of Article 9 of Directive 2006/112, the former provides those services independently of the latter.

58That assessment of the emanation theory is supported both by the legal framework on which it is based, namely Orders No 148/1971 and No 6/1975, and by the description of it in the ministerial reply to parliamentary question No 2188. Unless I am mistaken, those texts make no reference to the criterion of independence referred to in Article 9 of Directive 2006/112.

59Moreover, to my knowledge, nor does the Decree on intermunicipal cooperation address the criterion of independence. that decree defines concepts central to the emanation theory, namely those of ‘conferral of management’ and ‘commissioning association’, without, however, requiring the existence of an employer-employee relationship, for the purposes of the case-law cited in point 56 of this Opinion, between the persons or entities which make such a conferral and the association with conferral of management.

60I therefore concur with the Commission, which, during the hearing, rightly pointed out that the emanation theory is a purely Belgian concept which finds no support in Directive 2006/112.

61I conclude that the emanation theory is, in principle, contrary to Article 9 of Directive 2006/112, to its binding nature and to the objective of harmonisation pursued by that directive, inter alia on the basis of the definition of the concept of ‘taxable person’. In particular, national legislation or a national practice, implementing the emanation theory, cannot limit the scope of Directive 2006/112 by derogating from the criteria laid down in Article 9(1) thereof. ²³

62That theory might nonetheless be compatible with Article 9 of Directive 2006/112 if it constituted the implementation of one of the derogations from that provision provided for in Articles 11 and 13 of Directive 2006/112.

2. The compatibility of the emanation theory with Articles 11 and 13 of Directive 2006/112

63As regards, in the first place, Article 11 of Directive 2006/112, I would recall that it lays down the conditions under which several persons, ‘while legally independent’, may be regarded as forming part of a group that is treated as a single taxable person. The members of such a ‘VAT group’ cannot be regarded as independent taxable persons, with the result that services provided for consideration between them are not subject to VAT. ²⁴

64As the Commission stated at the hearing, there is nothing in the file before the Court to suggest that Digipolis and its members form a group for the purposes of Article 11 of Directive 2006/112. ²⁵ In my view, the application of that provision was never contemplated in the present case, as evidenced, moreover, by the response of the successors to Digipolis to a question that I asked at the hearing. They maintained, in essence, that there was no need to raise the question of the applicability of that article, on the ground that the emanation theory already allowed the services in question to be classified as internal services not subject to VAT.

65Furthermore, I tend to the view that the omission of any reference to Article 11 of Directive 2006/112, in particular in the request for a preliminary ruling, could arise from the inapplicability of that provision. In particular, I do not have the impression that the members of Digipolis or Digipolis itself have ceased to submit VAT declarations separately and ceased to be identified, within and outside their group, as individual taxable persons, as required by the case-law relating to Article 11. ²⁶

66In the second place, as regards Article 13 of Directive 2006/112, service providers falling within the scope of the first subparagraph of paragraph 1 thereof are not to be regarded as taxable persons, even though they ‘independently’ carry out an economic activity. ²⁷

67During the hearing, it was established that, in the present case, there is no question of applying that provision. Its application is subject to two conditions, that is to say, first, the activities in question must be carried out by a body governed by public law and, second, that body must act as a public authority. ²⁸ It is true that, according to the information contained in the order for reference, it seems to have been established that Digipolis is such a body. However, the parties to the main proceedings make no claim that the provision of telematics services to the members of that association falls within the powers of a public authority. To the contrary, the Belgian State has confirmed that such services do not constitute powers which Belgian law reserves to municipalities. ²⁹

68I consider that the application of Article 13(1) of Directive 2006/112 is also excluded on a different ground. In accordance with that provision, bodies governed by public law are regarded as taxable persons when they carry out, to a non-negligible extent, activities listed in Annex I to that directive. These include telecommunications, which, in my understanding, form an integral part of the telematics services in question in this case. ³⁰ Moreover, in the present case, those services were provided over a prolonged period of time and also to third parties. It appears to me that those circumstances indicate that, in all likelihood, Digipolis’ activity was not of a minimal scale and thus entailed a risk of significant distortions of competition. ³¹

69Beyond the present case, I consider that the emanation theory has no connection with Articles 11 and 13 of Directive 2006/112. In particular, it concerns neither the designation of VAT groups nor the classification of bodies governed by public law as taxable persons, and its application is in no way subject to the conditions laid down in Articles 11 and 13 of Directive 2006/112.

70It seems to me that that assessment is supported by the fact that Orders No 148/1971 and No 6/1975, which form the legal basis for the emanation theory, make no reference whatsoever to the provisions of the ‘Second VAT Directive’, in force at the time, which corresponded, in essence, to what are now Articles 11 and 13 of Directive 2006/112. ³² Moreover, to my knowledge, it is only since 1992 that the Belgian VAT Code has included a provision on VAT groups. ³³ That provision requires the adoption of national transposition measures, which are contained in a Royal Decree of 2007. ³⁴

71In my view, it follows from the foregoing considerations that the emanation theory does not comply with the requirements laid down, respectively, in Articles 11 and 13 of Directive 2006/112. Its application would therefore result in the creation of an additional derogation from Article 9 of that directive, which is not provided for therein. In my view, the introduction of such a derogation is contrary to the objective of harmonisation pursued by that directive.

3. The relevance of the status of the recipients of the services

72By the second part of the question referred, the referring court asks whether the emanation theory could be compatible with Directive 2006/112 if the non-founding members of Digipolis – which were the recipients of the services in question – were not taxable persons within the meaning of Article 9 of that directive, but non-taxable bodies governed by public law for the purposes of Article 13 thereof.

73I note that, at the hearing, the Belgian State sought to reframe that question by arguing that, in the light, inter alia, of their specific status within commissioning associations, only municipalities, which fall within Article 13 of Directive 2006/112, could benefit from the application of the emanation theory. Other members, such as municipal companies, are excluded.

74However, as already stated, ³⁵ the referring court does not seem to me to share that assessment and, in any event, it does not ask the Court about the scope of the emanation theory. In my view, the second part of the question referred is based on the idea that the status of the recipient of services as a taxable person or as a non-taxable person could affect the tax status of the provider of those services.

75In my view that idea must be rejected. It already conflicts with the wording of Article 9 of Directive 2006/112, which does not refer to the recipients of supplies of goods or services. The criteria set out in paragraph 1 of that provision focus on the pursuit of economic activities for the supply of goods or services. They therefore refer to suppliers and providers. ³⁶

76I consider that whether or not the recipient of the goods or services is a taxable person is irrelevant in that regard. In particular, whether or not a service provider carries on an economic activity cannot depend on whether the recipient uses those services for the purposes of its taxed transactions. ³⁷ Similarly, as stated by the successors to Digipolis in their written observations and by the Commission at the hearing, under Article 2(1)(c) of Directive 2006/112, the taxable nature of a service depends exclusively on whether the supplier is a taxable person.

77In conclusion, neither the nature of the activities carried out by the recipient of a service nor whether it is a taxable or non-taxable person is relevant for the purpose of answering the question whether that service falls within the scope of Directive 2006/112.

78By contrast, those elements do make it possible to determine whether the VAT exemption provided for in Article 132(1)(f) of that directive applies. That provision lays down an exemption for ‘independent groups of persons’, provided, inter alia, that those persons themselves carry on an activity which is exempt from VAT or are not taxable persons. ³⁸

79In the main proceedings, that exemption was relied on, in the alternative, by the successors to Digipolis. At the hearing, they stated that some non-founding members of that association carry on activities which are exempt from VAT not under the various situations referred to in Article 132 of Directive 2006/112, but under Article 135 of that directive. It seems to me that that fact precludes the application of Article 132(1)(f) of that directive. Only services which contribute directly to the exercise of activities in the public interest referred to in that article come under the exemption provided for therein. ³⁹

80Moreover, in the light of the proposed interpretation of Article 9 of Directive 2006/112, I consider that it is no longer necessary to examine, in isolation, the principle of fiscal neutrality.

VI. Conclusion

81In the light of the foregoing considerations, I propose to respond to the hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium) as follows:

Article 9 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in the version applicable to the years at issue from 2014 to 2020, as most recently amended by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community,

must be interpreted as precluding the application of national legislation or of a national administrative practice under which services provided by an association to its members, for remuneration, are deemed to be internal transactions, with the result that they fall outside the scope of that directive, although that association, acting independently, must be regarded as a taxable person within the meaning of Article 9 of that directive and does not fall within the scope of Articles 11 or 13 thereof.

José Martín y Pérez de Nanclares

Delivered in open court in Luxembourg on 22 October 2025.

[Signatures]

¹ Original language: French.

² Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), in the version applicable to the years at issue, 2014 to 2020, as last amended by the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21) (‘Directive 2006/112’).

³ Judgments of 13 June 2024, Adient (C‑533/22, EU:C:2024:501, paragraph 33), and of 12 May 2022, U. I. (Indirect customs representative) (C‑714/20, EU:C:2022:374, paragraph 33).

⁴ Judgment of 5 March 2020, X (Exemption of VAT for telephone consultations) (C‑48/19, EU:C:2020:169, paragraph 35).

⁵ See judgments of 20 March 1986, Tissier (35/85, EU:C:1986:143, paragraph 9), and of 5 December 2024, Modexel (C‑680/23, EU:C:2024:1000, paragraph 17 and the case-law cited).

⁶ The Court of Justice has already had occasion to assess Belgian administrative tolerance in the case which gave rise to the judgment of 24 February 2022, Pharmacie populaire – La Sauvegarde and Pharma Santé – Réseau Solidaris (C‑52/21 and C‑53/21, EU:C:2022:127). See also Grabias, F., La tolérance administrative, Dalloz, Paris, 2018, pp. 22 and 26, which defines administrative tolerance as ‘an unlawful choice made by the administration in favour of an unlawful act committed by a citizen’, having ‘the effect of setting aside the rule of law to which that citizen is normally subject’.

⁷ See Article 12(1) and (2) of the Decree on intermunicipal cooperation.

⁸ As regards the jurisdiction of the Court of Justice, see judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 40 and the case-law cited). As regards the jurisdiction of the referring court to interpret national law, see judgment of 28 October 2021, X-Beteiligungsgesellschaft (VAT – Successive payments) (C‑324/20, EU:C:2021:880, paragraph 31 and the case-law cited).

⁹ As explained in point 48 of this Opinion, the referring court, by contrast, raises the issue of whether the status of the non-founding members can have a bearing on the compatibility of the emanation theory with EU law, which is a different issue.

¹⁰ I would point out that the referring court does not address the question whether the services in question could benefit from a VAT exemption if they fell within the scope of Directive 2006/112. However, the exemption under Article 132(1)(f) of that directive was relied on, in the alternative, by the successors to Digipolis before that court (see below, point 79 of this Opinion).

¹¹ See, by analogy, judgment of 18 June 2015, Martin Meat (C‑586/13, EU:C:2015:405, paragraph 31), and order of 12 February 2025, Pegazus Busz (C‑262/24, not published, EU:C:2025:107, paragraph 22).

¹² See, in particular, judgment of 17 December 2020, WEG Tevesstraße (C‑449/19, EU:C:2020:1038, paragraph 32). See, in detail, point 56 of this Opinion.

¹³ See judgment of 3 April 2025, Grzera (C‑213/24, EU:C:2025:238, paragraph 18 and the case-law cited).

¹⁴ See judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 26 and the case-law cited).

¹⁵ See, by analogy, judgment of 21 October 2004, BBL (C‑8/03, EU:C:2004:650, paragraph 37 and the case-law cited), which concerns Article 4 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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), and judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 28). See also Opinion of Advocate General Jääskinen in Gmina Wrocław (C‑276/14, EU:C:2015:431, point 34) and the analysis of the judgment in that case in Grube, F., ‘EuGH: Wirtschaftlich tätige „kommunale Einrichtungen“ mangels Selbständigkeit keine Unternehmer im umsatzsteuerrechtlichen Sinne – Gmina Wrocław’, Mehrwertsteuerrecht, No 23, 2015, pp. 926 to 930 (929 to 930).

¹⁶ Judgment of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraphs 27 and 28).

¹⁷ See Opinion of Advocate General Cosmas in Heerma (C‑23/98, EU:C:1999:259, points 18 and 19). For an overview of the case, see Berlin, D., ‘Chronique de jurisprudence fiscale européenne’, Revue trimestrielle de droit européen, No 4, 2002, pp. 725 to 788 (731 to 734). It should be noted that the broad interpretation of the criteria laid down in Article 9(1) of Directive 2006/112 does not mean that Article 11 must be interpreted narrowly (judgment of 1 December 2022, Finanzamt T (Internal supplies within a VAT group), C‑269/20, EU:C:2022:944, paragraph 42).

¹⁸ See Opinion of Advocate General Kokott in Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:590, point 29), and judgment of 21 December 2023, Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:1024, paragraph 50), in which the Court of Justice clarified that the relationship of employer and employee referred to in Article 10 of Directive 2006/112 is only one relevant criterion for the purpose of applying Article 9(1) of that directive. It should also be noted that Article 5 of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1) expressly provides for a situation in which an entity, namely a European Economic Interest Grouping, must be regarded as a taxable person separate from its members.

¹⁹ With regard to Article 11 of Directive 2006/112, see in detail below, point 63 of this Opinion.

²⁰ That issue must be distinguished from the issue of the application and use of goods by the taxable person for himself or herself, which is governed by Articles 16 and 26 of Directive 2006/112. See, in that regard, Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 32).

²¹ See judgment of 21 December 2023, Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:1024, paragraphs 51 and 52), and Opinion of Advocate General Kokott in Administration de l’Enregistrement, des Domaines et de la TVA (VAT – Member of a board of directors) (C‑288/22, EU:C:2023:590, points 26, 27 and 29). With respect to non-taxable internal transactions within an undertaking, in particular in the specific case of fixed establishments, see Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 35).

²² See, in particular, judgment of 17 December 2020, WEG Tevesstraße (C‑449/19, EU:C:2020:1038, paragraph 32). With regard to the relationship between a legal entity and its members, see also judgment of 27 January 2000, Heerma (C‑23/98, EU:C:2000:46, paragraph 18), and judgment of 12 October 2016, Nigl and Others (C‑340/15, EU:C:2016:764, paragraphs 30 to 34).

²³ I would point out that the Court of Justice found a similar solution as regards the right to deduct in the judgment of 15 December 2011, Commission v France (C‑624/10, not published, EU:C:2011:849, paragraphs 45 and 48).

²⁴ Judgment of 11 July 2024, Finanzamt T II (C‑184/23, EU:C:2024:599, paragraphs 38 to 41 and 47). See also Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 33): Article 11 of Directive 2006/112 ‘enables the Member States, under certain conditions, to treat two (or more) persons together as a single taxable person, in order to avoid the existence of a transaction between those persons inter se. That serves to confer a certain “organisational neutrality”’. For an overview of the development of the case-law of the Court of Justice, see Korn, C., ‘UStG § 2 Unternehmer, Unternehmen. Unionsrechtliche Grundlage und Unterschiede zu § 2 Abs. 2 Nr. 2’, in Bunjes (ed.), Umsatzsteuergesetz, 24th ed., C.H. Beck, Munich, 2025, paragraphs 170 to 177 (170 to 172).

²⁵ Unless I am mistaken, that provision, the implementation of which is optional, was in fact transposed into Belgian law by Royal Decree No 55 of 9 March 2007 on the regime for taxable persons forming a VAT group, which implements Article 4(2) of the Belgian VAT Code. See, in that regard, Hanssens, S., ‘Unité TVA’, in Bourgeois (ed.), TVA – questions choisies, Larcier, Brussels, 2021, pp. 181 to 202 (182 and 183).

²⁶ Judgment of 11 July 2024, Finanzamt T II (C‑184/23, EU:C:2024:599, paragraphs 39 and 40).

²⁷ In point 36 of his Opinion in Gmina Wrocław (C‑276/14, EU:C:2015:431), Advocate General Jääskinen points out that Article 13 of Directive 2006/112 can be applied only where there is a taxable person within the meaning of Article 9 of that directive, that is to say a person who ‘independently’ carries out an economic activity; it is therefore necessary to confirm the independent nature of the economic activity before examining the applicability of Article 13 of that directive.

²⁸ Judgment of 25 February 2021, Gmina Wrocław (Transformation of the right of usufruct) (C‑604/19, EU:C:2021:132, paragraphs 78 and 79). It should be noted that the Court of Justice has already examined the public nature of a commissioning association, such as Digipolis, and concluded that it was a body governed by public law for the purposes of Article 13(1) of Directive 2006/112 (judgment of 27 April 2023, Fluvius Antwerpen, C‑677/21, EU:C:2023:348, paragraph 50).

²⁹ The Commission emphasised that point at the hearing.

³⁰ Telematics refers to the combined use of telecommunications and information technology: Amory, B., Poullet, Y., ‘Le droit de la preuve face à l’informatique et à la télématique’, Revue internationale de droit comparé, No 37-2, 1985, pp. 331 to 352 (332). In their observations submitted to the Court, the successors to Digipolis also assert that the concept of ‘telematics’ refers to telecommunications and information technology activities.

³¹ See judgment of 27 April 2023, Fluvius Antwerpen (C‑677/21, EU:C:2023:348, paragraph 55): ‘… that activity is not subject to VAT only if it is possible to regard the activity referred to in Annex I to Directive 2006/112, carried out by a body governed by public law acting as a public authority, as being of such minimal scale in space or time and, consequently, of such a slight economic impact that the distortions of competition likely to result are liable to be, if not nil, at the very least insignificant.’

³² Second Council Directive 67/228/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes – Structure and procedures for application of the common system of value added tax (OJ, English Special Edition: Series I Volume 1967, p. 16). The fourth paragraph of point 2 of Annex A to that directive provided: ‘the expression “independently” … also makes it possible for each Member State not to consider as separate taxable persons, but as one single taxable person, persons who, although independent from the legal point of view, are, however, organically linked to one another by economic, financial or organisational relationships. Any Member State intending to adopt such a system shall enter into the consultations mentioned in Article 16’. The fifth paragraph of point 2 of Annex A provided: ‘States, regional and local government bodies and other public corporate bodies shall not as a general rule be considered as taxable persons in respect of activities which they pursue in their official capacity as official authorities.’

³³ See, in that regard, Hanssens, S., ‘Unité TVA’, in Bourgeois (ed.), TVA – questions choisies, Larcier, Brussels, 2021, pp. 181 to 202 (183).

³⁴ Royal Decree No 55 of 9 March 2007 on the regime for taxable persons forming a VAT group. See also point 64 of this Opinion.

³⁵ See points 39 and 40 of this Opinion.

³⁶ See judgments of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 28), and of 15 April 2021, Administration de l’Enregistrement, des Domaines et de la TVA (C‑846/19, EU:C:2021:277, paragraph 47 and the case-law cited), and Opinion of Advocate General Kokott in Latvijas Informācijas un komunikācijas tehnoloģijas asociācija (C‑87/23, EU:C:2024:222, points 56 and 57). See also point 53 of this Opinion.

³⁷ See Opinion of Advocate General Kokott in Adient (C‑533/22, EU:C:2024:106, point 31) according to which ‘a taxable transaction within the meaning of Article 2(1)(a) and (c) of … [Directive 2006/112] always presupposes the existence of two persons, at least one of whom – the supplier – must be a taxable person’.

³⁸ Judgment of 2 July 2020, Blackrock Investment Management (UK) (C‑231/19, EU:C:2020:513, paragraph 38).

³⁹ Judgment of 21 September 2017, DNB Banka (C‑326/15, EU:C:2017:719, paragraphs 33 to 37).