The Court of Justice of the European Union has given its opinion in respect of C-677/21 Fluvius Antwerpen. The Court considered whether Article 2(1)(a), read in conjunction with Article 14(1), of the VAT Directive must be interpreted as meaning that the unlawful use of energy is a supply of goods, being the transfer of the right to dispose of tangible property as owner.
The court concluded that:
- Article 2(1)(a) read in conjunction with Article 14(1) of the VAT Directive must be interpreted as meaning that unlawful usage of energy is a supply of goods for consideration, if the remuneration that is payable pursuant to law is dependent on consumption.
- Article 9(1) of the VAT Directive must be interpreted as meaning that, if a distribution network operator additionally supplies electricity, that can also be regarded as an economic activity on its part. That is the case if the supply, for example due to illegal electricity usage, constitutes a risk inherent in its economic activity as a distribution network operator.
- Negligible activities within the meaning of the third subparagraph of Article 13(1) of the VAT Directive can only be present if the body governed by public law should not be regarded as a taxable person on the basis of other activities.