CJ, 22-01-2026, nr. C-379/24, nr. C-380/24

CJ, 22-01-2026, nr. C-379/24, nr. C-380/24

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

Uitspraak 22‑01‑2026

Inhoudsindicatie

References for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Supply of services by independent groups of persons, who are carrying on an activity which is exempt from VAT — Services directly necessary for the exercise of the exempt activity — Risk of distortion of competition — Cleaning services in the healthcare and education sectors — National legislation requiring that the services be directly and exclusively linked to the exempt activity and necessary for the exercise of that activity

K. Jürimäe, K. Lenaerts, F. Schalin, M. Gavalec, Z. Csehi

Partij(en)

In Joined Cases C-379/24 and C-380/24,*

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain), made by decisions of 22 and 29 April 2024, received at the Court on 28 May 2024, in the proceedings

Agrupació de Neteja Sanitària, AIE (C-379/24),

Educat Serveis Auxiliars SCCL (C-380/24)

v

Tribunal Económico-Administrativo Regional de Cataluña (TEARC),

THE COURT (Second Chamber),

composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin (Rapporteur), M. Gavalec and Z. Csehi, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

—

the Spanish Government, by P. Pérez Zapico, acting as Agent,

—

the European Commission, by A. Cabrera Ruiz and P. Carlin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 July 2025,

gives the following

Judgment

1

These requests for a preliminary ruling concern the interpretation of Article 132(1)(f) 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’).

2

The requests have been made in two separate sets of proceedings concerning the rejection, by the Tribunal Económico-Administrativo Regional de Cataluña (Regional Tax Tribunal, Catalonia, Spain), of the complaints lodged by Agrupació de Neteja Sanitària, AIE (‘ANS’) and Educat Serveis Auxiliars SCCL (‘Educat’), respectively, against the decisions to recover value added tax (VAT) concerning them.

Legal context

European Union law

3

Recitals 25 and 35 of the VAT Directive state:

‘(25)

The taxable amount should be harmonised so that the application of VAT to taxable transactions leads to comparable results in all the Member States.

…

(35)

A common list of exemptions should be drawn up so that the Communities’ own resources may be collected in a uniform manner in all the Member States.’

4

Title IX of that directive, entitled ‘Exemptions’, contains Chapter 1, entitled ‘General provisions’, which includes Article 131, which provides:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

5

Also under Title IX, Chapter 2, entitled ‘Exemptions for certain activities in the public interest’, contains Article 132, which provides in paragraph 1 thereof:

‘Member States shall exempt the following transactions:

…

(b)

hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable with those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar nature;

…

(f)

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, where those groups merely claim from their members exact reimbursement of their share of the joint expenses, provided that such exemption is not likely to cause distortion of competition;

…

(i)

the provision of children's or young people's education, …’

Spanish law

6

Article 20(1) of Ley 37/1992 del Impuesto sobre el Valor Añadido (Law 37/1992 on value added tax) of 28 December 1992 (BOE No 312 of 29 December 1992, p. 44247), in the version applicable to the facts in the main proceedings, provides:

‘The following transactions shall be exempt from [VAT]:

…

6.o.

Services supplied directly to their members by associations, groups or autonomous entities, including economic interest groups, made up exclusively of persons carrying on an exempt or non-taxable activity in respect of which VAT is not deductible, provided the following conditions are met:

(a)

Such services are used directly and exclusively in the course of that activity and are necessary in order to carry on [that activity].

(b)

The members are limited to reimbursing their share of the joint expenses.

…

The exemption shall also apply, once the condition set out in point (b) above is satisfied, where the deductible proportion does not exceed 10% and the service is not used directly and exclusively for the purposes of the transactions in respect of which VAT is deductible.

The exemption does not extend to services provided by trading companies.

…’

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

7

ANS, the applicant in the main proceedings in Case C-379/24, was formed on 11 February 2017 as Agrupación de Interés Económico (AIE) (Economic Interest Groups) the aim of which was to create shared infrastructure with regard to the provision of comprehensive cleaning services in hospitals, centres and buildings in general, in which the members of ANS carry on their healthcare and social care activities.

8

Educat, the applicant in the main proceedings in Case C-380/24, was formed on 15 July 2010 as Sociedad Cooperativa Catalana Limitada (SCCL) (Limited Catalan Cooperative Society), the aim of which was to create shared infrastructure with regard to the provision of comprehensive cleaning services in the establishments and facilities of the members of Educat, in which the members carry on educational activities such as nursery schools, primary schools, compulsory secondary education, further secondary education and vocational training establishments.

9

Both applicants in the main proceedings respectively concluded contracts with third parties for the management of the staff that they employed. On the basis of those contracts, those third parties assigned the staff to the facilities and tasks, selected staff, prepared payslips, handled any incidents (including managing and terminating employment relationships), provided appropriate training, in accordance with the legal requirements, and provided necessary materials for the performance of those tasks. Those contracts justified the use of subcontracting in respect of cleaning activities by the fact that those third parties had the necessary experience, knowledge and resources for the management of the cleaning services which the applicants in the main proceedings provided to their members.

10

Following VAT inspections, the Dependencia Regional de Inspección de la Agencia Española de Administración Tributaria (Regional Tax Inspectorate of the Spanish Tax Administration) made Educat and ANS subject to VAT in respect of the transactions that they carried on by providing cleaning services to their respective members. It was found that the exemption laid down in Article 20(1)(6) of Law 37/1992 did not apply on the ground that the applicants in the main proceedings had not directly provided those services but had called upon external undertakings which had actually carried out a substantial part of those services. Those inspections also showed that the cleaning services at issue were not directly and exclusively linked to the exempt activity carried on by the respective members of ANS and Educat, with the result that the application of the exemption could give rise to distortion of competition.

11

The Tribunal Económico-Administrativo Regional de Cataluña (Regional Tax Tribunal, Catalonia) upheld the two VAT recovery decisions adopted against ANS and Educat. ANS and Educat each brought an action against those decisions before the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain), which is the referring court. They submit that the exemption from VAT at issue cannot be refused based on the fact that the management of the staff has been contracted to a third-party undertaking which accords with the spirit and purpose of that exemption.

12

Under those circumstances, the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia) decided to stay the proceedings and to refer the following questions, which are formulated in the same terms in Cases C-379/24 and C-380/24, to the Court of Justice for a preliminary ruling:

‘(1)

Is a national rule — Article 20(1)(6) of [Law 37/1992] — which contains the stipulation that it relates to services provided directly and exclusively to the exempt activity … contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of [the VAT Directive], where that stipulation is interpreted such that a service — [cleaning in the area of healthcare (C-379/24) and cleaning in the area of education (C-380/24)] — [is not considered to be] exclusive to that exempt sector, even though it is singular, technical and complex in its organisation … and nature, as well as absolutely necessary?

(2)

Is an interpretation of Article 20(1)(6) of [Law 37/1992] contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of [the VAT Directive] where, in order to refuse the exemption in accordance with EU limits, non-exclusivity in the provision of the service to the activity is equated with causing distortion of competition, thereby combining national and EU limits in order to refuse it? Please clarify whether the limit of ‘not distorting competition’ implies refusing the exemption, if it is not disputed by the parties, whatever the extent of its effect may be ([judgment of 20 November 2003, Taksatorringen, C-8/01, EU:C:2003:621], paragraph 48), on the basis that any exemption is a break with the general principle — acknowledged by the Court of Justice — of liability to tax.’

13

By decision of the President of the Court of 10 July 2024, Cases C-379/24 and C-380/24 were joined for the purposes of the written and oral parts of the procedure and of the judgment.

Consideration of the questions referred

The first question

14

By its first question, the referring court asks, in essence, whether Article 132(1)(f) of the VAT Directive must be interpreted as precluding national legislation under which the supply of services by an independent group of persons cannot be classified as ‘directly necessary’ services, within the meaning of that provision, where those services are necessary for the activity which is exempt from VAT carried on by those persons, but are not exclusively linked to that activity on account of their general nature.

15

It should be observed as a preliminary point that it is clear from recitals 25 and 35 of the VAT Directive that the directive is designed to harmonise the basis of assessment of VAT and that the exemptions from that tax constitute independent concepts of EU law which, as the Court has held, must be placed in the general context of the common system of VAT introduced by that directive (see, by analogy, judgment of 20 November 2019, Infohos, C-400/18, EU:C:2019:992, paragraph 29).

16

In accordance with the settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 1 August 2025, Alace and Canpelli, C-758/24 and C-759/24, EU:C:2025:591, paragraph 91).

17

As regards the wording of Article 132(1)(f) of the VAT Directive, that provision exempts 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 the members of those groups the services directly necessary for the exercise of that activity, where those groups merely claim from their members the exact reimbursement of their share of the joint expenses, provided that such exemption is not likely to cause distortion of competition.

18

In that connection, it is clear from the settled case-law that the terms used to specify the exemptions from VAT set out in Article 132 of the VAT Directive must be interpreted strictly since those exemptions constitute exceptions to the general principle that all services supplied for consideration by a taxable person are subject to that tax. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive the exemptions of their intended effect. It is not the purpose of the case-law of the Court to impose an interpretation which would make the exemptions concerned almost inapplicable in practice (judgments of 11 December 2008, Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing, C-407/07, EU:C:2008:713, paragraph 30; of 4 May 2017, Commission v Luxembourg, C-274/15, EU:C:2017:333, paragraph 50; and of 18 November 2020, Kaplan International Colleges UK, C-77/19, EU:C:2020:934, paragraph 37).

19

It should also be noted that, although Article 132(1)(a) to (q) of the VAT Directive lists the ‘transactions’ exempted by the Member States, Article 132(1)(f) of that directive refers, more specifically, to the supply of services which are, first, supplied by independent groups of persons for the benefit of their members who are carrying on an activity which is exempt from VAT or in relation to which they are not taxable persons and, second, are ‘directly necessary’ for that activity.

20

It must therefore be held that, although the wording of Article 132(1)(f) of the VAT Directive requires a link between the supply of services by the independent group of persons and the exempt activity of its members, that provision does not require that those services be specific services constituting a contribution essential to that activity or to a specific transaction. It is sufficient that the supply of services by such a group is directly necessary for the exercise of the exempt activity of its members.

21

As regards the context in which Article 132(1)(f) of the VAT Directive occurs, that provision is included in Chapter 2 of Title IX of that directive, the chapter which also includes Article 134(a), under which ‘the supply of goods or services shall not be granted exemption, as provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1) … where the supply is not essential to the transactions exempted’. Article 134(a) thus expressly makes the supply of services referred to in the provisions listed therein subject to the condition that they be essential for the transactions exempted. It must be stated, in that regard, that the supply of services referred to in Article 132(1)(f) of that directive is not among those specified in Article 134(a).

22

It follows that, as the Advocate General observes in point 27 of her Opinion, it cannot be contemplated that the services referred to in Article 132(1)(f) of the VAT Directive are so specific as to constitute a contribution essential to the exempt activity, or to some of the transactions exempted. Furthermore, the mere fact that the exempt activities at issue in the main proceedings are covered by Article 132(1)(b) and (i) of that directive does not invalidate that interpretation.

23

By contrast, supplies of services which do not directly contribute to the carrying on of activities in the public interest, referred to in Article 132 of the VAT Directive, but which contribute to the exercise of other exempt activities, cannot be covered by the exemption laid down in Article 132(1)(f) of the VAT Directive (see, to that effect, judgment of 21 September 2017, Commission v Germany, C-616/15, EU:C:2017:721, paragraph 50).

24

The interpretation of Article 132(1)(f) of the VAT Directive stated in paragraphs 20 and 22 above is also consistent with the aim of that provision, which is to exempt from VAT certain activities in the public interest, with a view to facilitating access to certain services and the supply of certain goods, by avoiding the increased costs that would result if they were subject to that tax (see, by analogy, judgment of 20 November 2019, Infohos, C-400/18, EU:C:2019:992, paragraph 37). Thus, the supplies of services by an independent group of persons is covered by the exemption in that provision where those supplies of services directly contribute to activities in the public interest mentioned in Article 132 of that directive (judgment of 21 September 2017, Commission v Germany, C-616/15, EU:C:2017:721, paragraph 48).

25

That is indeed the case where the services are usually supplied by such a group to its members in so far as they are necessary for the exercise of the exempt activity. In that regard, ‘general’ services such as cleaning could be considered to be directly necessary both for the medical care sector and for the education sector where, moreover, there are specific hygiene requirements for the operators in those sectors. The referring court states, moreover, that the cleaning services at issue in the main proceedings are unique, technical and complex in regard to the activities at issue.

26

In the light of the foregoing, the answer to the first question is that Article 132(1)(f) of the VAT Directive must be interpreted as precluding national legislation under which the supply of services by an independent group of persons cannot be classified as ‘directly necessary’ services, within the meaning of that provision, where those services are necessary for the activity which is exempt from VAT carried on by those persons, but are not exclusively linked to that activity on account of their general nature.

The second question

27

By its second question, the referring court asks, in essence, whether Article 132(1)(f) of the VAT Directive must be interpreted as precluding an interpretation of national legislation under which there is, as a matter of principle, a distortion of competition or a risk of distortion of competition where the services supplied by an independent group of persons to its members may, on account of their general nature, be used for any taxable activity and not exclusively for the exempt activity which they carry on.

28

According to the national provision at issue in the main proceedings, the exemption from VAT laid down in Article 132(1)(f) of the VAT Directive is subject to the requirement that the services supplied directly to the members of independent groups of persons, made up of persons carrying on an exempt or non-taxable activity in respect of which VAT is not deductible, are used directly and exclusively for the purposes of that activity and are necessary in order to carry on that activity.

29

In that regard, it is apparent from the answer to the first question that that provision precludes national legislation under which the supply of services by an independent group of persons cannot be classified as ‘directly necessary’ services, within the meaning of that provision, where those services are necessary for the activity which is exempt from VAT carried on by those persons, but are not exclusively linked to that activity on account of their general nature.

30

The Spanish Government submits, however, that that provision does not preclude the exclusivity requirement imposed by the legislation at issue in the main proceedings in so far as that requirement is intended to ensure that the condition relating to the absence of distortion of competition laid down in Article 132(1)(f) of the VAT Directive can be applied simply and correctly.

31

Therefore, it is appropriate to examine whether a Member State may, having regard to the condition relating to the absence of distortion of competition, restrict the supply of services that are entitled to the exemption laid down in that provision, by means of national legislation.

32

As a preliminary point, it must be observed that the Member States are not obliged to transpose that criterion literally into their national law (judgment of 21 September 2017, Commission v Germany, C-616/15, EU:C:2017:721, paragraph 64).

33

Furthermore, in order to determine whether the application of the exemption referred to in Article 132(1)(f) of the VAT Directive is likely to cause distortion of competition, it is certainly possible for the national legislature to lay down rules which are easily managed and supervised by the competent authorities. Under Article 131 of the VAT Directive, Member States are to lay down conditions to which the exemptions are subject for the purpose of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. However, those conditions do not concern the definition of the content of the exemptions laid down by that directive (see, to that effect, judgments of 21 March 2013, Commission v France, C-197/12, EU:C:2013:202, paragraph 31; of 25 February 2016, Commission v Netherlands, C-22/15, EU:C:2016:118, paragraphs 28 and 29; and of 21 September 2017, Commission v Germany, C-616/15, EU:C:2017:721, paragraph 65).

34

That is precisely the effect of the national legislation at issue, by which the national legislature seeks to exclude all the services supplied by independent groups of persons which may also be used for activities not exclusively linked to the exempt activity that the members of those groups carry on.

35

In addition, it should be borne in mind that the purpose of the exemption from VAT laid down in Article 132(1)(f) of the VAT Directive consists in preventing an entity offering certain services from being required to pay that tax when it has found it necessary to cooperate with other entities by means of a common structure set up to undertake activities essential to the provision of those services (judgments of 11 December 2008, Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing, C-407/07, EU:C:2008:713, paragraph 37, and of 21 September 2017, Commission v Germany, C-616/15, EU:C:2017:721, paragraph 56). That provision is therefore intended, as stated in paragraph 24 above, to exempt from VAT certain activities in the public interest, with a view to facilitating access to certain services and the supply of certain goods, by avoiding the increased costs that would result if they were subject to VAT.

36

The fact of refusing to grant an independent group of persons, which satisfies all of the conditions laid down in Article 132(1)(f) of the VAT Directive, the exemption referred to in that provision solely because the supply of services to the members of that group is a supply of services of a general nature which may also be supplied to other persons would restrict the scope of that provision by excluding, as a matter of principle, from the exemption from VAT services supplied by that group to its members, and such a restriction of the scope of that provision is not supported by the purpose of that directive as recalled in the preceding paragraph of the present judgment (see, by analogy, judgments of 11 December 2008, Stichting Centraal Begeleidingsorgaan voor de Intercollegiale Toetsing, C-407/07, EU:C:2008:713, paragraphs 36 and 37, and of 20 November 2019, Infohos, C-400/18, EU:C:2019:992, paragraph 40).

37

By contrast, as the Advocate General observes in point 49 of her Opinion, a distortion of competition is likely to occur in the event of abuse within the meaning of Article 131 of the VAT Directive. Such an abuse cannot, however, be based on a general and irrebuttable presumption (see, to that effect, judgment of 20 November 2019, Infohos, C-400/18, EU:C:2019:992, paragraph 53).

38

In the light of the foregoing, the answer to the second question is that Article 132(1)(f) of the VAT Directive must be interpreted as precluding an interpretation of national legislation under which there is, as a matter of principle, a distortion of competition or a risk of distortion of competition where the services supplied by an independent group of persons to its members may, on account of their general nature, be used for any taxable activity and not exclusively for the exempt activity which they carry on.

Costs

39

Since 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 Court, other than the costs of those parties, are not recoverable.

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

1.

Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as precluding national legislation under which the supply of services by an independent group of persons cannot be classified as ‘directly necessary’ services, within the meaning of that provision, where those services are necessary for the activity which is exempt from value added tax carried on by those persons, but are not exclusively linked to that activity on account of their general nature.

2.

Article 132(1)(f) of Directive 2006/112

must be interpreted as precluding an interpretation of national legislation under which there is, as a matter of principle, a distortion of competition or a risk of distortion of competition where the services supplied by an independent group of persons to its members may, on account of their general nature, be used for any taxable activity and not exclusively for the exempt activity which they carry on.

[Signatures]

Conclusie 10‑07‑2025

Inhoudsindicatie

References for a preliminary ruling — Tax law — Value added tax — Directive 2006/112/EC — Article 132(1)(f) — Exemption for ‘cost-sharing groups’ — Exemption for services which may not be essential but are useful for the exempt activity of the members — Services for the direct purpose of carrying out tax-exempt activities — Existence of a distortion of competition by the grant of a tax exemption provided for by European Union law

Kokott

Partij(en)

Joined Cases C-379/24 and C-380/241.

Agrupació de Neteja Sanitària, AIE (C-379/24),

Educat Serveis Auxiliars SCCL (C-380/24)

v

Tribunal Económico-Administrativo Regional de Cataluña (TEARC)

(Requests for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain))

I. Introduction

1.

The two requests for a preliminary ruling in the present case concern the exemption from VAT of ‘cost-sharing groups’, which has already been the subject of the Court of Justice's case-law on several occasions. 2. That provision exempts services rendered by a group to its members if the group merely passes on the exact costs of those services to its members. However, the tax exemption is subject to the proviso that ‘such exemption is not likely to cause distortion of competition’.

2.

The Court of Justice had to deal with this rather vague (negative) criterion for the first time in 2001 in Taksatorringen. 3. However, the question posed there was not precise enough and the answer given was so vague (the exemption should be refused ‘if there is a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition’) that it was followed by many other requests for preliminary rulings. However, those were resolved without defining that criterion in more detail. It is therefore still unclear today when such distortions of competition can actually be assumed to exist as a result of a tax exemption provided for in European Union law itself, so that the exemption must ultimately be denied.

3.

It is therefore unsurprising that the present requests for a preliminary ruling — there are simultaneous proceedings pending before the General Court on this issue under Case T-558/24, which are currently suspended 4. — are ultimately asking the Court of Justice for a somewhat more practical interpretation.

II. Legal framework

A. European Union law

4.

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (‘the VAT Directive’) provides the legal framework under EU law. 5.

5.

Article 131 of the VAT Directive lays down general provisions governing tax exemptions:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

6.

Pursuant to Article 132(1)(f) of the VAT Directive in Chapter 2 concerning exemptions for certain activities in the public interest, 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, where those groups merely claim from their members exact reimbursement of their share of the joint expenses, provided that such exemption is not likely to cause distortion of competition’.

7.

Article 134 of the VAT Directive excludes some transactions from certain exemptions under EU law under certain circumstances:

‘The supply of goods or services shall not be granted exemption, as provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1), in the following cases:

(a)

where the supply is not essential to the transactions exempted;

(b)

where the basic purpose of the supply is to obtain additional income for the body in question through transactions which are in direct competition with those of commercial enterprises subject to VAT.’

B. Spanish law

8.

Article 20(1)(6) of the Law on VAT 37/1992 transposes Article 132(1)(f) of the VAT Directive and provides, in so far as relevant here, as follows:

‘The following shall be exempt from tax:

6.

Services rendered directly to their members by associations, groupings or autonomous entities, including Economic Interest Groupings, established exclusively by persons largely carrying on activities exempt from or not subject to tax, provided the following conditions are met:

(a)

such services are used directly and exclusively in the course of that activity and are necessary in order to carry it out.

(b)

the members are limited to reimbursing their share of the joint expenses.

…

The exemption does not extend to services provided by trading companies.’

III. Facts

9.

The applicant in Case C-379/24 (‘applicant 1’) was established on 11 February 2017 as an Agrupación de Interés Económico (A.I.E., Economic Interest Grouping). The aim was to create shared infrastructure for the members with regard to the provision of comprehensive cleaning services in hospitals, centres and buildings in general which are used by members to carry out their healthcare and health and social care activities.

10.

The applicant in Case C-380/24 (‘applicant 2’) was established on 15 July 2010 as a Sociedad Cooperativa Catalana Limitada (SCCL, Limited Catalan Cooperative Society). The aim was to create shared infrastructure for its members with regard to the provision of comprehensive cleaning services in the establishments and facilities in which its members carry out their educational activities (nursery, primary education, compulsory secondary education, further secondary education and vocational training).

11.

Both applicants concluded a contract with a (different) third party for the administration and HR management of the staff employed by the two applicants. On the basis of the contracts, those third parties assigned the staff to the facilities and tasks, selected staff, prepared payslips, handled any incidents (including managing and terminating employment relationships), ensured that sufficient training was given to meet legal requirements and provided materials. Both contracts justify the subcontracting of that activity to the third parties with the fact that they have the experience, knowledge and resources required to conduct the management of the cleaning services which the two applicants provide to its members.

12.

On 11 November 2013, a VAT audit of the second applicant was commenced for the periods January 2010 to December 2012, and on 2 June 2017 an audit of the fist applicant was commenced for the periods March 2013 to December 2014. Both audits concluded with the assessment of VAT for the transactions carried out by the applicants for the provision of cleaning services for their members. The arguments put forward are that the tax exemption provided for in Article 20(1)(6) of the Law on VAT does not apply because the applicants did not provide those services directly but used an external undertaking which actually provides a substantial part of the services. Furthermore, the cleaning services are not linked, directly and exclusively, to the tax-exempt activity and, therefore, the application of the tax exemption could lead to a distortion of competition.

13.

The tax authorities have confirmed both decisions. In response to those decisions, each of the applicants brought an action before the referring court. They argue that the exemption cannot be denied due to the fact that the management of the staff has been outsourced to a third company as this circumstance is in line with the spirit and purpose of the tax exemption.

IV. Requests for a preliminary ruling

14.

The Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain), which has jurisdiction over both actions, stayed both proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 267 TFEU:

‘(1)

Is it contrary to the spirit and purpose of the tax exemption in Article 132(1)(f) of the VAT Directive for a national provision to impose a requirement that the services in question be used directly and exclusively for the tax-exempt activity if that requirement is interpreted as meaning that a service (cleaning in the healthcare sector (C-379/24) or in the education sector (C-380/24)) is not used exclusively for the tax-exempt activity, even though it is unique, technical and complex in its organisation and design (in Case C-380/24: regular cleaning and disinfection of facilities where minors are present and cared for for a prolonged period of time) as well as absolutely necessary?

(2)

Is an interpretation of national law which rejects the tax exemption in accordance with the limits laid down by EU law contrary to the spirit and purpose of the tax exemption in Article 132(1)(f) of the VAT Directive because non-exclusivity in the provision of the service is equated with causing distortion of competition, thereby combining national and EU limits of the tax exemption? Please clarify whether the limit of ‘not distorting competition’ implies refusing the tax exemption, if it is not disputed by the parties, whatever the extent of its effect may be (Case C-8/01, paragraph 48), on the basis that any exemption is an infringement of the general principle — acknowledged by the Court of Justice — of liability to tax?’

15.

By order of 10 July 2024, the Court of Justice joined the two cases for a joint decision. Only the Spanish Government and the European Commission submitted written observations in the present proceedings. In accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, the Court of Justice did not consider it necessary to hold a hearing.

V. Legal assessment

A. Background to the questions referred

16.

The background to the questions referred is the decision by the EU legislature not to grant an input tax deduction in principle to undertakings which make exempt supplies, such as hospitals or children's education facilities. It does not follow from the requests for a preliminary ruling that the members of the applicants only carry out exempt transactions in accordance with Article 132(1) of the VAT Directive. But neither does it follow from the requests for a preliminary ruling that the applicants carry out other taxable or other exempt transactions. If the cleaning services were to be categorised as such, a tax exemption under Article 132(1)(f) of the VAT Directive would not be possible per se.

17.

The Opinion is therefore based on the assumption that both applicants carry out 100% exempt transactions under Article 132(1) of the VAT Directive. In such a situation, the services the applicants provide are not taxed, while at the same time the services they receive remain subject to VAT due to the lack of deduction of input VAT.

18.

The consequence is that those exemptions (in particular the exemptions for social reasons listed in Article 132 of the VAT Directive) are only partial tax exemptions. Given that the non-deductible VAT from the services subject to input VAT usually is (must be) taken into account in the price calculation of the services subject to output VAT, the consumer indirectly bears the VAT burden. As a result, only the added value created by the supplier itself at the final stage (for example, in the case of hospital services, its own services to the patient) is exempt from VAT.

19.

The consequence of the lack of deduction of input VAT by those undertakings is that, for example, cleaning services provided by the staff of a hospital only leads to a financial burden in terms of staff costs. However, the involvement of an external cleaning service provider leads to a financial burden at least in terms of its staff costs plus VAT.

20.

Consequently, there is generally an economic interest for undertakings in tax-exempt sectors (such as hospitals) to provide those services themselves (so-called internalisation) and not to purchase them from another undertaking subject to tax. However, tax-exempt undertakings may find themselves in situations in which it is not economically viable to hire the staff internally. For example, it may make sense for several hospitals to share staff costs of a data processing centre or — as is the case here — those of cleaning staff.

21.

For situations of that kind, Article 132(1)(f) of the VAT Directive exempts supplies by the group to its members provided certain conditions are met. In that case the exclusion of the input tax deduction does not have an impact on price, which means that the tax exemption for the final consumer continues to apply in full. That is because the tax exemption is independent of whether the input service was provided in its entirety by a tax-exempt undertaking itself (by its own staff) or together with other tax-exempt undertakings as part of a group (by the staff ‘shared’ by the group).

22.

That is exactly what happened in the present case. Several undertakings which provide tax-free medical treatment or tax-free educational services have joined forces and share the costs of the group's cleaning staff. However, they have outsourced the management of the staff to a third party. The fact that those paid services provided by the third party are taxable and that the VAT to be paid therefore represents a financial burden to be borne by the applicants appears to be undisputed and is not at issue in the legal action.

23.

It is therefore only necessary to clarify whether the cleaning services provided by the applicants to their members (shareholders) in return for reimbursement of costs — that is to say the shared costs of the cleaning staff 6. — are also subject to VAT. That depends on whether the cleaning services were provided ‘for the direct purpose of carrying out’ the exempted medical treatment or educational services and were therefore necessary for that purpose (see B. below) and whether the exemption of the cleaning services provided to the members leads to a distortion of competition (see C. below). On that point, the questions referred can be answered together.

B. Services provided by the group for the direct purposes of the members' tax-exempt activities

24.

According to Article 132(1)(f) of the VAT Directive, services provided by the group to its members ‘for the direct purpose of carrying out those (note: namely VAT-exempt) activities’ (here, medical and educational services) are exempt. In my view, ‘direct necessity’ in other language versions 7. means the same thing. The VAT Directive ultimately requires a certain link between the service provided by the group and the exempt activity of the members. However, the wording does not require a direct link with a specific tax-exempt transaction of the member; it is sufficient that the supply of the group is necessary for the privileged tax-exempt activities of the member.

25.

That also makes sense as the tax-exemption provision is aimed at reducing the input tax burden on the input side if several companies with certain tax-exempt activities form a group and only provide services to their members in return for the reimbursement of expenses. That is because VAT is always charged on input transactions if the input services are linked to the tax-exempt activity, irrespective of whether they are directly linked to a specific tax-exempt transaction.

26.

A comparison with the wording of Article 134 of the VAT Directive also shows that — contrary to the arguments put forward by the Commission and Spain — those services do not have to be indispensable for the tax-free transactions. Article 134 of the VAT Directive excludes certain exemptions provided for in Article 132 of the VAT Directive if they are not essential to the transactions exempted. Here, the Council expressly refers to a link to certain transactions (and not just to a tax-exempt activity). Furthermore, that exclusion only applies to the ‘exemption, as provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1)’. No reference is made to the tax exemption in Article 132(1)(f) of the VAT Directive, however.

27.

It follows, a contrario, that services provided by the group to its members for the direct purpose of carrying out the members' exempt activities must be read differently, that is to say more broadly. The services of the group need not therefore be indispensable for the tax-exempt activity, let alone for the tax-exempt transactions. Rather, the criterion of ‘directness’ in Article 132(1)(f) of the VAT Directive refers to the attribution of the group's service to the VAT-exempt activity as opposed to a parallel taxable activity of the member (or tax-exempt activity not covered by Article 132 of the VAT Directive).

28.

As the Court of Justice has already clarified, a partially taxable activity of the members does not rule out the tax exemption of the services of the group as such, 8. but only to the extent that those services are provided for the purposes of the taxable activity of the members. That is because those services, which contribute to the performance of other activities, are not covered by the scope of the exemption. 9.

29.

However, such direct attribution for the purpose of carrying out a tax-exempt activity always exists if the member exclusively carries out tax-exempt transactions that are listed in the catalogue of Article 132(1) of the VAT Directive. That then also explains the counter-exemption in the event of a distortion of competition (see point 36 et seq. below). A counter-exemption would be largely superfluous if only those activities of the group were exempt which are necessarily linked to the exempt activity (in the sense of a conditio sine qua non).

30.

To the extent that, in its statement, the Commission (and possibly also Spain) wishes to distinguish between general services, which are necessary for the majority of all transactions (for example, cleaning services, supervising services, IT services, etc.), and services specifically required for the tax exemption, that argument is unconvincing. The Commission even goes so far as to suggest that it can refer to the judgment in Taksatorringen10. as a useful example. The case concerned the sharing of costs for an expert among the members of a group of insurance companies. It was argued that the service in question (assessment of damage) was sufficiently closely linked to tax-exempt insurance services; however, the same was not true for general cleaning services.

31.

The argument is unconvincing for two reasons. On the one hand, insurances do not come within the scope of Article 132(1)(f) of the VAT Directive at all, a fact which at the time (in 2003) escaped the notice of the Commission, the referring court and the Court of Justice — which, in fairness, had not been asked about that point. The Court of Justice went on to clarify that point in 2017. 11. On the other hand, such costs are arguably even less specifically linked to tax-free insurance services than cleaning services in the medical and education sectors as in the present case. It is precisely the latter sectors that have special hygiene requirements for operators, which results in the particular need for certain cleaning services. The Court of Justice itself also only requires that the services directly contribute12. to activities in the public interest under Article 132 of the directive. It can hardly be denied that cleaning services in a hospital contribute directly to tax-exempt hospital services.

32.

By contrast, to my knowledge there are no general requirements on how damage to a motor vehicle is to be assessed. The amount of actual damage also has no impact on the tax-exempt service (insurance cover in return for payment of insurance premiums), but only concerns the amount that the insurance company ultimately has to pay out. The insurance cover provided in return for payment — that is to say, the tax-exempt service — is only affected in terms of the amount. Therefore, the Commission's approach of distinguishing between general services that are useful for all transactions (such as cleaning services) and specific, directly necessary services (assessment of damage to be compensated) is not convincing.

33.

That approach also contradicts the spirit and purpose of the provision to reduce the effects of the exclusion of the input VAT deduction (see point 18 et seq. above) if the service is not provided by a company's own staff but by a group to its members.

34.

If one takes that spirit and purpose seriously, then all services provided by the group to its members fall under the tax exemption if they are used by the members as services subject to input VAT in the context of their tax-exempt activity and are therefore directly attributable to the tax-free activity covered by Article 132 of the VAT Directive because they are common and necessary for that activity.

35.

That seems to me to be the case for general cleaning services, which are more than common and also necessary in the medical treatment sector as well as in the education sector. In fact, according to the referring court, they are unique, technical and complex in their organisation and design and absolutely necessary. They therefore fall squarely within the scope of Article 132(1)(f) of the VAT Directive. Such services, which are normally associated with the tax-exempt activity so that a competitor of a certain size would provide them himself or herself and which are attributable to the taxable person's tax-exempt activity covered by Article 132, therefore fall within the scope of Article 132(1)(f) of the VAT Directive.

C. Interpretation of the criterion of an absence of ‘distortion of competition’

1. Objective of the provision
36.

If cleaning services generally fall within the scope of the tax exemption, it must be decided whether and when the tax exemption of such services is excluded as that would otherwise lead to a distortion of competition.

37.

As the Court has already ruled 13. and I have stated elsewhere, 14. Article 132(1)(f) of the VAT Directive is intended to offset the competitive disadvantage of smaller undertakings compared to a larger competitor. That is because the latter can purchase the services supplied by the group either through its own employees or as part of a VAT group (Article 11 of the VAT Directive) through a closely related company. Article 132(1)(f) of the VAT Directive is intended to ensure equal VAT treatment of large and small undertakings, the need for which stems from the exclusion of the deduction for exempt outputs.

38.

A small hospital without its own cleaning staff must bear higher costs than a larger competitor in order to be able to offer the same services. That is a competitive disadvantage stemming primarily from the size of the undertaking. Article 132(1)(f) of the VAT Directive makes it possible, however, to avoid that competitive disadvantage. The above-mentioned hospital can form a group with another hospital. That group hires the staff to provide the necessary cleaning services for both hospitals. The relevant costs are split between the two. Because the service supplied by the group to its members is exempt, VAT is now not charged on staff costs (the VAT charge on input remains the same for material costs as well as for costs for administrative services provided by a third party). The competitive disadvantage suffered by the two smaller hospitals compared with the (larger) competitor would thus be eliminated.

39.

If, however, that exemption is intended to eliminate a competitive disadvantage, the grant of it as such cannot normally at the same time give rise to distortion of competition or create the risk of distortion of competition. The competition clause contained in Article 132(1)(f) of the VAT Directive seems somewhat unusual in this regard and makes little sense. 15.

2. Requirement of a strict interpretation of the distortion of competition criterion
40.

For that reason, it would seem that a strict interpretation must be adopted if the tax-exemption provision in Article 132(1)(f) of the VAT Directive is not to be redundant. The same conclusion is reached if the absence of distortion of competition is understood as an exception to the exemption provided for, in principle, in Article 132(1)(f) of the VAT Directive since, according to the Court of Justice, any exception to or derogation from a general rule is to be interpreted strictly. 16.

41.

If, however, the absence of distortion of competition is regarded as an exception to the exemption, which is in turn regarded as an exception to the general principle that VAT is to be levied, 17. a counter-exception could also be taken to exist. Such a counter-exception could be interpreted either very strictly (as an exception, which is to be interpreted strictly, to an exception) or very broadly (as a counter-exception to an exception which is to be interpreted strictly).

42.

The correct approach is to interpret such ‘counter-exception’ neither strictly nor broadly, but teleologically, that is to say in accordance with its spirit and purpose. According to the case-law of the Court of Justice, the interpretation must be consistent with the objectives pursued by those exemptions and comply with the requirements of fiscal neutrality. In particular, the terms used to specify the exemptions referred to in Article 132 may not be construed in such a way as to deprive the exemptions of their intended effect. 18.

43.

However, a broad interpretation prevents the spirit and purpose of the tax exemption (prevention of distortion of competition due to different options of internalisation) from being achieved. Compensation for a competitive disadvantage always inevitably has competition-related effects, which in turn cannot be regarded as a ‘harmful’ distortion of competition. In essence, that is consistent with the abovementioned (point 40) teleological, strict interpretation of the criterion of an absence of ‘distortion of competition’.

44.

A starting point for such a strict interpretation is offered by the case-law of the Court of Justice to the effect that a finding of a distortion of competition requires there to be a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition. 19. In that case the distortion of competition relates to the fact that the provision of services by a group is exempt. 20.

45.

In the light of the necessary strict interpretation of the criterion of an absence of distortion of competition, such a distortion cannot then be established solely on the basis of the existence of such a market. That would make a mockery of the idea behind Article 132(1)(f) of the VAT Directive. That provision is intended to give market participants an option to prevent a competitive disadvantage in relation to larger competitors (see point 36 above), that is to say within an existing market, by cooperating with other (usually smaller) market participants.

46.

In the view of the Court of Justice, when determining the existence of distortion of competition it must be examined whether the group can be certain of keeping its members' customers even if there is no exemption. 21. If the services supplied by the group are tailored to the needs of the members such that the group can also be certain that the members will purchase those services, there is, in principle, organised joint action (see above, point 36 et seq.), which is intended to be exempt under Article 132(1)(f) of the VAT Directive. In other words, the existence of such a group rules out any distortion of competition in principle, since the purpose of such a form of organisation is generally to ensure that the members also purchase the services.

47.

Members of a cost-sharing group usually only ever come together if they are certain that those members will also purchase the group's services (‘purchasing guarantee’). It can thus be assumed in principle that the formation of a group for the supply of its members will not cause a distortion of competition within the meaning of Article 132(1)(f) of the VAT Directive.

48.

If one were to take seriously the idea of organisational neutrality — which Advocate General Rantos 22. rightly emphasised in connection with Article 11 of the VAT Directive — then all services are covered which are normally provided in connection with the tax-exempt activities listed in Article 132(1) of the VAT Directive (here the tax-exempt medical treatment services and the tax-exempt educational services) and which can be carried out internally without great effort, so that large companies would normally carry them out themselves. In such a case, the tax exemption under Article 132(1)(f) of the VAT Directive merely eliminates the advantage of large undertakings and cannot, in itself, constitute a distortion of competition. Cleaning services, which are necessary not least for sanitary reasons in both the medical treatment sector and the education sector and are therefore common therein, cannot therefore give rise to a risk of distortion of competition in a cost-sharing group.

49.

In view of the purpose of the exemption (preventing a competitive disadvantage), the criterion requiring that there should be no distortion of competition can therefore, in my view, serve solely to avoid abuse (see Article 131 of the VAT Directive). Ultimately it simply serves to ensure that the exemption is not applied inappropriately. In my view, when that is the case can be ascertained only on the basis of indications.

3. Indications of an improper application
50.

An indication that the tax exemption provided for in Article 132(1)(f) of the VAT Directive is being applied inappropriately may be, for example, that the group supplies the same services to a significant extent for consideration to non-members and is to that extent, by exploiting effects of synergy, operating on the market primarily as a competitor and less as a cooperative group. That could, under certain circumstances, constitute a correspondingly genuine risk of distortion of competition in relation to the abovementioned third-party suppliers. That does not appear to be the case here.

51.

Yet another indication may be that the group does not supply any services tailored to the specific needs of its members, but only sells on the purchased services. Those services could just as easily be offered and received by others. Here, too, third-party suppliers might be forced from the market in question. In the present case, however, the group provides its own cleaning services as these are not merely purchased but are provided by the group's staff. The fact that a third party is engaged to provide HR management services does not affect the finding as the appropriate VAT is paid to the third party for that service.

52.

Another indication may be that the primary purpose of the group's formation is simply to optimise the input VAT burden rather than to establish reciprocal cooperation with a view to avoiding a competitive disadvantage. An optimisation of the input VAT burden can be taken to exist where a competitive advantage is created by switching any necessary peripheral services received to a group in a state with a very low VAT rate or no VAT (assuming that the tax exemption under Article 132(1)(f) of the VAT Directive were also to apply across borders 23.). This can probably also be ruled out in the present case.

VI. Conclusion

53.

I therefore propose that the Court of Justice respond as follows to the questions referred by the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain):

‘Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the exemption of services provided by a group to its members in return for the exact reimbursement of their share of the expenses concerns services subject to input VAT used by the members in the context of their tax-exempt activity and which are typically obtained for the provision of the exempt activity because they are necessary for that provision. The exemption of those services does not, in principle, lead to a distortion of competition if the services in question are normally provided as part of the tax-exempt activity, which a large company would usually provide itself. The situation may be different if the exemption is applied inappropriately.’

Beroepschrift 28‑05‑2024

Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 28 May 2024 — Agrupació de Neteja Sanitaria AIE v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

(Case C-379/24)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties to the main proceedings

Appellant: Agrupació de Neteja Sanitaria AIE

Respondent: Tribunal Económico Administrativo Regional de Cataluña (TEARC)

Questions referred

Is a national rule — Article 20(1)(6) of the VAT Law — which contains the stipulation that it relates to services provided directly and exclusively to the exempt activity (‘(a) such services are used directly and exclusively in the course of that activity and are necessary in order to carry it out;’) contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, 1. where that stipulation is interpreted such that a service — cleaning in the area of healthcare — [is not considered to be] exclusive to that exempt sector, even though it is singular, technical and complex in its organisation and nature, as well as absolutely necessary?

Is an interpretation of Article 20(1)(6) of the VAT Law contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of Directive 2006/112/EC where, in order to refuse the exemption in accordance with EU limits, non-exclusivity in the provision of the service to the activity is equated with causing distortion of competition, thereby combining national and EU limits in order to refuse it? Please clarify whether the limit of ‘not distorting competition’ implies refusing the exemption, if it is not disputed by the parties, whatever the extent of its effect may be ([judgment of 20 November 2003, Taksatorringen, C-8/01, EU:C:2003:621], paragraph 48), on the basis that any exemption is a break with the general principle — acknowledged by the Court of Justice — of liability to tax.

Beroepschrift 28‑05‑2024

Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 28 May 2024 — Educat Serveis auxiliars SCCL v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

(Case C-380/24)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties to the main proceedings

Appellant: Educat Serveis auxiliars SCCL

Respondent: Tribunal Económico Administrativo Regional de Cataluña (TEARC)

Questions referred

Is a national rule — Article 20(1)(6) of the VAT Law — which contains the stipulation that it relates to services provided directly and exclusively to the exempt activity (‘(a) such services are used directly and exclusively in the course of that activity and are necessary in order to carry it out;’) contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, 1. where that stipulation is interpreted such that a service — cleaning in the area of education — [is not considered to be] exclusive to that exempt sector, even though it is singular, technical and complex in its organisation — calling for the continuous cleaning and disinfection of facilities attended and occupied by children over long periods of time — and nature, as well as absolutely necessary?

Is an interpretation of Article 20(1)(6) of the VAT Law contrary to the meaning and purpose intended by the EU legislature with the exemption contained in Article 132(1)(f) of Directive 2006/112/EC where, in order to refuse the exemption in accordance with EU limits, non-exclusivity in the provision of the service to the activity is equated with causing distortion of competition, thereby combining national and EU limits in order to refuse it? Please clarify whether the limit of ‘not distorting competition’ implies refusing the exemption, if it is not disputed by the parties, whatever the extent of its effect may be ([judgment of 20 November 2003, Taksatorringen, C-8/01, EU:C:2003:621], paragraph 48), on the basis that any exemption is a break with the general principle — acknowledged by the Court of Justice — of liability to tax.

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