The Scope of the Transfer of a Totality of Assets in EU VAT

Abstract

Recently, in the Mailat-case, the Court of Justice of the European Union (CJEU) ruled that the lease of a restaurant business does not fall within the scope of the concept of the transfer of a totality of assets in the sense of Article 19 VAT Directive. Although this outcome was hardly a surprise, the Mailat-case shows that the CJEU has been imprecise in its conceptual approach to the interpretation of the concept of the transfer of a totality of assets in its case law on the matter. In this article, the author presents different conceptual approaches available for answering questions regarding the interpretation of the concept of the transfer of a totality of assets in EU Value Added Tax (VAT). On the basis of an analysis of the CJEU’s judgment in the Mailat-case in light of previous judgments, it is concluded and substantiated in what way the CJEU’s approach lacks conceptual clarity and thus gives rise to confusion for taxpayers and tax authorities.