Case C-428/02

Fonden Marselisborg Lystbådehavn

v

Skatteministeriet

and

Skatteministeriet

v

Fonden Marselisborg Lystbådehavn

(Reference for a preliminary ruling from the Vestre Landsret)

(Sixth VAT Directive – Article 13B(b) – Exemptions – Leasing of immovable property – Letting of premises and sites for parking vehicles – Mooring berths for boats – Land storage sites for boats)

Opinion of Advocate General Kokott delivered on 14 October 2004

Judgment of the Court (Third Chamber), 3 March 2005

Summary of the Judgment

1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions laid down by the Sixth Directive – Exemption for the letting of immovable property – Meaning – Letting of water‑ and land‑based mooring berths for boats

(Council Directive 77/388, Art. 13B(b))

(Council Directive 77/388, Art. 13B(b), point 2)

1. Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, must be interpreted as meaning that the concept of letting of immovable property includes the letting of both water-based mooring berths for boats and land sites for storage of boats on port land.

As regards, more particularly, the former, a mooring berth in a port basin fulfils the definition of immovable property within the meaning of the provision concerned, since the letting does not concern a particular quantity of water, but a specific part of the port basin which is clearly delimited and cannot be moved.

(see paras 34-36, operative part 1)

2. Article 13B(b) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, as amended by Directive 92/111, which excludes the letting of premises and sites for parking vehicles from the exemption from value added tax, must be interpreted as meaning that the term of ‘vehicles’ used in that provision includes all means of transport, including boats.

(see paras 44, 46-47, operative part 2)

JUDGMENT OF THE COURT (Third Chamber) 3 March 2005 (1)

(Sixth VAT Directive – Article 13B(b) – Exemptions – Leasing of immovable property – Letting of premises and sites for parking vehicles – Mooring berths for boats – Land storage sites for boats)

In Case C-428/02,REFERENCE for a preliminary ruling under Article 234 EC from the Vestre Landsret (Denmark), made by order of 15 November 2002, received at the Court on 26 November 2002, in the proceedings

and

v

THE COURT (Third Chamber),,

composed of A. Rosas, President of the Chambre, A. Borg Barthet, J.‑P. Puissochet, J. Malenovský and U. Lõhmus (Rapporteur), Judges,

Advocate General: J. Kokott,

having regard to the written proceedings and further to the hearing on 23 September 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 14 October 2004,

gives the following

‘1.

2.‘Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse:

…

(b)

Member States may apply further exclusions to the scope of this exemption;

…’.

‘The following goods and services are exempt from VAT:

…

‘1.

2.On those grounds, the Court (Third Chamber) rules as follows:

[Signatures]