Letting of immovable property — VAT exemption — Mooring for boats — Letting of premises and sites for parking vehicles excluded from exemption — Whether letting of moorings for boats excluded from exemption — Whether vehicles including boats — Preliminary ruling
The appellant (FML), a Danish independent institution, let water-based mooring berths and land sites for the winter storage of boats on a yearly or monthly basis or for periods of one to several days.
An annual lessee acquired the right to use a specific and identifiable mooring and to use common facilities, such as toilets and washing facilities. The mooring berths were adjusted to fit the size of each boat, and were individually numbered and marked with fencing, y-beams or pontoon bridging. If the lessee did not wish to use the berth for a period exceeding 24 hours, it was made available to visitors without reimbursement. Long-term lessees of moorings with a right to a land site were obliged to pay an annual site fee and a deposit, which varied according to the size of the boat. No deposit was required for letting a mooring berth without a right to a land site, although, in that case, the annual rent was higher. Moorings let on a monthly basis were subject to a monthly hire charge but no deposit was payable. Short-term lettings of one or several days also did not require a deposit. Winter storage facilities were also available, whereby the user could acquire the right to a particular site with free access to tend and prepare the boat.
A dispute arose as to whether the income from letting the mooring berths was subject to VAT. The appellant’s appeal in the lower court (the Landsskatteret) was unsuccessful, but the Vestre Landsret (Denmark) took the view that the resolution of the dispute required the interpretation of the VAT exemption provisions in article 13B(b) of the Sixth Council Directive 77/388/EEC and referred it to the European Court of Justice.
Held: A preliminary ruling was given.
The concept of the letting of immovable property included the letting of both water-based mooring berths for pleasure boats and land storage sites for boats within the port land area.
In the case of water-based mooring berths, the fact that the land was partially under water did not prevent it from being immovable property capable of being leased or let. As the owner, the appellant could rent out the entirety of the port land, including specified parts of it. However, a letting would not be concerned with a particular quantity of water, but with a specific area of the port basin. That water-covered area would be clearly delimited and could not be moved. Accordingly, a mooring berth in a port basin fulfilled the definition of immovable property within the meaning of article 13B(b).
Article 13B(b)(2) introduced an exception to the exemption laid down for the letting of premises and sites for the parking of vehicles. The term “vehicles” within that provision covered all means of transport, including boats. Letting moorings for boats was not limited solely to the right privately to occupy the surface of the water. It also entailed the provision of available port equipment for mooring the boat, landing stages and the use of various sanitary or other facilities. None of the reasons, including the social ones, that originally justified the exemption from VAT for immovable property could in these circumstances be applied to the letting of mooring berths for pleasure boats.
L Henriksen and M Andersen, advocates, appeared for the appellant; J Molde, acting as agent, and P Biering, advocate, appeared for the respondent; M Apessos and K Georgiadis, acting as agents, appeared for the Greek government, an interested party; E Traversa and T Fich, acting as agents, appeared for the European Commission, an interested party.
Eileen O’Grady, barrister
