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Building land EU VAT case law

9 cases of the Court of Justice and the General Court of the European Union on this point of VAT law, from 1992 to 2024.

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Under each case, what the Court decided, from its summary. The summaries are AI-generated and are not official documents: open the case for the Court’s own text.

C-594/23 Lomoco Development and Others

Judgment · 7 November 2024 · Denmark

Land with only foundations in place is building land

The Court held that such a supply is a supply of building land within Article 12. Although "building" is defined broadly as any structure fixed to or in the ground, that definition is tied to the first occupation criterion in Article 12(1)(a). Foundations cannot be occupied and their casting does not end the production process. Even "parts of a building" must be capable of occupation, as where flats in a staged development are finished separately. Breitsohl does not assist, as it did not interpret that concept. Developers and their advisers can no longer rely on foundations alone to fix the VAT classification, or the timing, of a land supply.

C-191/21 Ministère de l’Économie, des Finances et de la Relance

Order · 10 February 2022 · France

Margin scheme on resale of land, legal identity of the goods purchased and resold

Ruling by reasoned order under Article 99, the Court held that Article 392 precludes the margin scheme where land purchased as built-on land has become building land before resale. The goods purchased and resold must be legally identical. It does not preclude the scheme where land already classified as building land under national law is merely altered, such as by partitioning into lots, provided the alterations do not amount to "buildings". It is for the national court to classify the land purchased. For property dealers the classification of the land is fixed at the moment of purchase, not only at resale.

C-299/20 Icade Promotion

Judgment · 30 September 2021 · France

Margin scheme on resale of building land

The margin scheme applies where acquisition bore non-deductible VAT, and also where no VAT was charged but the purchase price incorporated input VAT borne by the initial seller. Otherwise it does not apply to acquisitions outside the scope (for example from a private individual managing private assets) or exempt. It cannot apply where land not built on only becomes building land after purchase, but partitioning into lots and connection to grids and networks does not exclude it, provided the improvements are not themselves "buildings". For developers and land traders in Member States operating the Article 392 derogation, an acquisition is tested for embedded VAT and not merely for the absence of a deduction.

C-71/18 KPC Herning

Judgment · 4 September 2019 · Denmark

Sale of land with an existing building intended for demolition

A Member State may not classify such a supply as a supply of building land. Where the sale is economically independent of other services and does not form a single transaction with them, land carrying a building at the date of supply cannot be classified as building land, even if the parties intend total or partial demolition. Only objective circumstances, such as demolition undertaken or begun by the vendor and cost borne by the purchaser, can bind sale and demolition into a single supply of undeveloped land (Don Bosco). Relevant to developers, housing bodies and their advisers structuring brownfield and redevelopment deals.

C-543/11 Woningstichting Maasdriel

Judgment · 17 January 2013 · Netherlands

When demolished land becomes building land

The exemption does not apply where an overall assessment of the circumstances prevailing at the time of supply, including the parties' intention if supported by objective evidence, shows the land was in fact intended to be built on. Completed demolition by the vendor, or its undertaking to demolish with a view to future construction, is part of that objective evidence. The national definition of building land must cover all unbuilt land intended to support a building. Application is for the national court. Member State definitions of building land cannot be narrowed by formal criteria such as a requirement for post-demolition groundworks or a granted permit.

C-180/10 Słaby and Others

Judgment · 15 September 2011 · Poland

Sales of building land by private landowners and the boundary of economic activity

Mere management of private property remains outside VAT. The number and scale of sales, division into plots, the period involved and the income earned are not decisive. The seller becomes a taxable person only if he takes active steps to market the land by mobilising resources similar to a trader, for example preparatory development works or proven marketing measures. Article 12(1) applies only if the Member State has actually exercised the option, which the national court must verify. Article 16 does not apply where no input VAT was deductible. Flat-rate farmer status is irrelevant. The reference point for land disposals by individuals and farmers is qualitative, not quantitative. Relevant to landowners, farmers and property developers.

C-136/97 Norbury Developments

Judgment · 29 April 1999 · United Kingdom

Scope of a retained transitional exemption for building land

The Member State may still exempt those supplies. The transitional exemption survives both changes. Granting an option to waive the exemption is expressly authorised by Article 28(3)(c) and Annex G. Article 28(3)(b) bars new exemptions and any extension of existing ones, but not their reduction, since progressive abolition is the aim of Article 28(4). The Court also confirmed it is bound by the national court's classification of the land as building land, that definition being left to Member States. Relevant to property developers and their advisers relying on retained pre-1977 exemptions, and to anyone arguing that a Member State has lost the benefit of a standstill exemption by amending it.

C-468/93 Gemeente Emmen

Judgment · 28 March 1996 · Netherlands

Who defines building land

It is for the Member States to define "building land" for the purposes of Articles 4(3)(b) and 13B(h), the Council having deliberately declined the Commission's proposed common definition. Article 4(3)(b) covers land "unimproved or improved", so the degree of transformation is irrelevant. What matters is that the Member State has defined the land as intended for building. The Court will not specify the required degree of improvement. Member States must nonetheless respect the aim of Article 13B(h), which exempts only land not intended to support a building. Confirms that the boundary between exempt undeveloped land and taxable building land is set nationally, not by an EU concept of servicing or site preparation.

C-208/91 Beaulande

Judgment · 16 December 1992 · France

Stamp duty on building land and the prohibition on turnover taxes

Article 33 does not preclude such a duty. It lacks the essential characteristics of VAT. It is not a general tax, applying only to real estate conveyances for consideration requiring certain formalities, no production and distribution chain is involved, since it bites only on transfer to the final consumer, it is not deductible against like duty on later conveyances, and it is charged on the full value of the property, not on added value. Confirms that transfer taxes and registration duties on immovable property can coexist with VAT on the same transaction, including where they are reinstated as a clawback when a development condition fails. Relevant to property developers, land traders and their advisers assessing double charges on land acquisitions, and to anyone testing a national charge against Article 33.

Related topics

Supply of land which has not been built on · National derogations · Economic activity · Supply of goods · Chargeable event, chargeability and collection of VAT · Exemptions · Common flat-rate scheme for farmers