3.5.2 Acting ‘as such’ (as a taxable person)

In order for activities as performed by a taxable for consideration to be subject to VAT, the activities have to be performed by the taxable person acting ‘as such’. This means that not all activities as performed by taxable persons, even if performed for consideration, are subject to VAT. This has been consistently confirmed by the CJEU.1 The CJEU has ruled that it is not necessary for a taxable person acting in a certain field of activity, that (other) transactions that he occasionally carries out have to fall within the same field of activity. However, for these activities to be subject to VAT, they will still have to qualify as ‘economic activities’ on their own accord.2 This means that the taxable person will have to perform these activities for the purpose of obtaining income therefrom on a continuing basis, as mentioned before. In my view, this means that, as an example, a self-employed lawyer (a taxable person) that sells his daughters bicycle because it has become too small, is not acting ‘as such’ (i.e. in his capacity of taxable person) when selling that bicycle, unless he sells bicycles (and/or other goods) on a sufficiently regular basis for these activities to be considered ‘economic activities’ by themselves.

In order to be considered a taxable person, the person has to – independently – perform economic activities. As I already described above, ‘economic activities’ (as defined in Article 9 of the EU VAT Directive) and ‘transactions that are subject to VAT’ (as defined in Article 2 of the EU VAT Directive) are not the same. I will now elaborate a bit further on the EU VAT concept of ‘economic activities’.