Case C‑308/16

Kozuba Premium Selection sp. z o.o.

v

Dyrektor Izby Skarbowej w Warszawie

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny)

(Reference for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 12(1) and (2) — Article 135(1)(j) — Taxable transactions — Exemption for the supply of buildings — Concept of ‘first occupation’ — Concept of ‘conversion’)

Summary — Judgment of the Court (Second Chamber), 16 November 2017

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Transaction involving the supply of buildings or parts thereof, and of the land on which they stand — National law making the exemption for a first occupation conditional upon it arising in the context of a taxable transaction — Unlawful — National law making the exemption in cases of the upgrade of an existing building conditional upon not exceeding a fixed threshold of the initial value thereof — Lawfulness — Condition — Definition of the concept of ‘upgrade’ laid down in the national law identical to that of ‘conversion’ included in Directive 2006/112 — Verification a matter for the national court

(Council Directive 2006/112, Arts 12(1) and (2) and 135(1)(j))

Articles 12(1)(a) and 135(1)(j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding a national law, such as that at issue in the main proceedings, which makes the VAT exemption on the supply of buildings subject to the condition that the first occupation thereof arises in the context of a taxable transaction. The same provisions must be interpreted as not precluding such a national law from making that exemption subject to the condition, in the case of the ‘upgrade’ of an existing building, that the costs incurred have not exceeded 30% of the initial value thereof, provided that that concept of ‘upgrade’ is interpreted in the same way as that of ‘conversion’ in Article 12(2) of Directive 2006/112, namely as meaning that the building concerned must have been subject to substantial modifications intended to modify the use or alter considerably the conditions of occupation.

(see para. 59, operative part)