ECLI:EU:T:2026:545

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JUDGMENT OF THE GENERAL COURT (Fifth Chamber, sitting with five Judges)

9 September 2026 (*)

( Reference for a preliminary ruling – Taxation – Common system of VAT – Transfer of a totality of assets or part thereof – Article 19 of Directive 2006/112/EC – Donation of an undertaking in two equal shares to two individuals – Subsequent transfer of the shares to a general partnership owned by the individuals who were the beneficiaries of the donation )

In Case T‑366/25 [Szytelbiecka], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), made by decision of 6 February 2025, received at the Court on 19 May 2025, in the proceedings

D.B.

Dyrektor Krajowej Informacji Skarbowej,

THE GENERAL COURT (Fifth Chamber, sitting with five Judges),

composed of M. Sampol Pucurull, President, T. Pynnä (Rapporteur), J. Laitenberger, M. Stancu and W. Valasidis, Judges,

Advocate General: J. Martín y Pérez de Nanclares,

Registrar: I. Kurme, Administrator,

having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 5 June 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,

having regard to the fact that the case concerns the area referred to in point (a) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,

having regard to the written part of the procedure,

further to the hearing on 25 March 2026,

after considering the observations submitted on behalf of:

– D.B., by P. Kuźmiak, tax advisor, and M. Palusiński, radca prawny,

– Dyrektor Krajowej Informacji Skarbowej, by M. Kowalewska, K. Nowicka, T. Tratkiewicz and T. Wojciechowski, acting as Agents,

– the Polish Government, by B. Majczyna and A. Kramarczyk‑Szaładzińska, acting as Agents,

– the European Commission, by M. Herold and J. Szczodrowski, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 May 2026,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 19 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) (‘the VAT Directive’).

2 The request for a preliminary ruling has been made in the context of a dispute between D.B. and the Dyrektor Krajowej Informacji Skarbowej (Director of National Tax Information, Poland) (‘the tax authority’) concerning a tax ruling on the exemption from value added tax (VAT) of a donation of assets.

The legal framework

European Union law

3 Article 2(1) of the VAT Directive provides:

‘The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…’

4 The first paragraph of Article 19 of the VAT Directive provides that:

‘In the event of a transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof, Member States may consider that no supply of goods has taken place and that the person to whom the goods are transferred is to be treated as the successor to the transferor.’

Polish law

5 Under Article 2(27e) of the ustawa o podatku od towarów i usług (Law on the tax on goods and services) of 11 March 2004 (Dz. U. of 2024, item 361), as amended (‘the Law on VAT’):

‘For the purposes of the following provisions: “an organised part of an undertaking” shall mean an organisationally and financially separate group of tangible and intangible assets within an existing undertaking, including liabilities, used to perform specific economic tasks, which at the same time could constitute an independent undertaking performing those tasks independently’.

6 Article 6(1) of the Law on VAT, exercising the option provided for in Article 19 of the VAT Directive, as set out in the request for a preliminary ruling, provides:

‘The provisions of this Law shall not be applicable to transactions involving the disposal of an undertaking or an organised part thereof’.

The dispute in the main proceedings and the question referred for a preliminary ruling

7 D.B. carries on an undertaking under the name ‘Przedsiębiorstwo B.’ (‘undertaking B.’). D.B. intends to donate the entire undertaking to her two daughters, A.K. and P.K., who will each receive a half share. D.B. will retain no assets forming part of undertaking B.’s assets at the time of the donation and will cease to carry on business immediately thereafter.

8 A.K. and P.K. run a separate undertaking, P., as a general partnership. They plan to incorporate undertaking B. into it and to continue the latter’s activities in a substantially unchanged form.

9 D.B. applied to the tax authority for a tax ruling concerning the legal provisions relating to the exemption from VAT of the donation made to her daughters.

10 On 26 June 2020, the tax authority issued a tax ruling to D.B. in which it found that there had been no disposal of an undertaking within the meaning of Article 6(1) of the Law on VAT. It added that, in the case of co-ownership by shares, each co-owner would hold a specific share of the property as sole owner and could dispose of it without the consent of the other co-owners. According to the tax authority, the subject of the transfer without consideration in that case was not undertaking B., but a shareholding in its various components, which would not allow for the independent pursuit of economic activities. The assets of undertaking B. that would be transferred would not be used to carry out specific economic tasks, since the economic activity would be carried out by the general partnership formed by A.K. and P.K., to which the shares received will be transferred. Thus, the economic activity would not be carried out by either of the acquirers of those shares, but only by another entity, the general partnership.

11 D.B. lodged an appeal against this tax ruling, which was dismissed by the Wojewódzki Sąd Administracyjny w Poznaniu (Provincial Administrative Court, Poznań, Poland) by judgment of 30 March 2021. The court of first instance upheld the tax authority’s reasoning, according to which the donation of shares in undertaking B. to A.K. and P.K. did not constitute a tax-exempt transaction under Article 6(1) of the Law on VAT, given that the subject of the donation was neither undertaking B., nor an organised part thereof, and that the economic activity would be carried out by a third party, namely a general partnership formed by A.K. and P.K.

12 D.B. lodged an appeal on a point of law with the referring court, the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), alleging, inter alia, a breach of Article 6(1) of the Law on VAT and Article 19 of the VAT Directive, read in conjunction with Article 55 of the ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 on the Civil Code) (Dz. U. of 2020, item 1740), as amended, on the grounds that the court of first instance had held that, in the present case, the transaction did not constitute a donation of an undertaking but rather a donation of assets, without taking into account the beneficiaries’ intention to continue the economic activity in essentially the same form.

13 The referring court considers that Article 19 of the VAT Directive, which is transposed by Article 6(1) of the Law on VAT, may be interpreted as supporting the reasoning of the Wojewódzki Sąd Administracyjny w Poznaniu (Provincial Administrative Court, Poznań), but that it may also be subject to a functional interpretation taking into account the objective of the transaction, which is the transfer of the whole of undertaking B. and the continuation of its economic activity. It adds that it is also hearing a separate case, the subject of which is to determine whether the transfer by A.K. and P.K. of the shares in undertaking B., which had been transferred to them – to the company of which they are co-owners and which will continue the business of undertaking B. – will be exempt from VAT under Article 19 of the VAT Directive.

14 In those circumstances, the referring court decided to stay proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 19 of [the VAT Directive] be interpreted as meaning that a transfer of a totality of assets within the meaning of that provision also occurs when there is a transfer without consideration by a taxable person of a half share each of a totality of assets to two individuals who are not taxable persons and who intend to contribute those shares immediately as a contribution in kind to a business partnership of which they are partners?’

Admissibility

15 Without formally raising the issue of the inadmissibility of the request for a preliminary ruling, the European Commission submits, in essence, that it is apparent from the statement of facts in the order for reference that the transfer of the undertaking by the applicant in the main proceedings to her two daughters was carried out without consideration, by way of a donation, so that, as such, such a transaction is not, in principle, subject to VAT. The referring court does not indicate the legal basis on which the supply of goods in question could be subject to VAT, with the result that the question referred could be regarded as hypothetical.

16 In that regard, it should be noted that, according to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the EU Courts to determine, enjoy a presumption of relevance. Accordingly, the EU Courts may refuse to rule on a request for a preliminary ruling made by a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the EU Courts do not have before them the factual or legal material necessary to give a useful answer to the questions submitted to them (see judgment of 11 June 2026, Jenec, C‑81/24, EU:C:2026:470, paragraph 27 and the case-law cited).

17 In the present case, it is apparent from the order for reference that, in so far as the transfer, without consideration, of the undertaking at issue in the main proceedings to two natural persons, each receiving a half share, does not constitute the transfer of a totality of assets or part thereof within the meaning of the first paragraph of Article 19 of the VAT Directive, that transfer would not constitute a transaction exempt from VAT.

18 In those circumstances, it is not manifestly clear that the requested interpretation of the VAT Directive bears no relation to the facts or the subject matter of the main proceedings, or that the issue raised is of a hypothetical nature.

19 Consequently, the request for a preliminary ruling is admissible.

Consideration of the question referred

20 By its request for a preliminary ruling, the referring court asks, in essence, whether the transfer, without consideration, of an undertaking to two natural persons, each receiving a half share, who intend to make an immediate contribution in kind of those shares to a company carrying on an economic activity, of which they are partners, constitutes the transfer of a totality of assets or part thereof within the meaning of the first paragraph of Article 19 of the VAT Directive.

21 It must be borne in mind in that regard that, according to the fundamental principle underlying the VAT system, VAT applies to each transaction by way of production or distribution after deduction of the VAT directly borne by the various cost components (see judgment of 30 May 2013, X, C‑651/11, EU:C:2013:346, paragraph 45 and the case-law cited).

22 In that context, the first paragraph of Article 19 of the VAT Directive provides that Member States may, in the event of a transfer of a totality of assets or part thereof, whether for consideration or without consideration or by way of a contribution to a company, consider that no supply of goods has taken place and that the recipient is the successor to the transferor. It follows that, when a Member State has exercised that option, the transfer of a totality of assets or part thereof is not regarded as a supply of goods for the purposes of the VAT Directive and is therefore not subject to VAT under Article 2 of that directive (see, to that effect and by analogy, judgment of 30 May 2013, X, C‑651/11, EU:C:2013:346, paragraph 29 and the case-law cited).

23 In order to answer the question referred by the referring court, it is therefore necessary to examine whether a series of transactions such as those at issue in the main proceedings can be classified as a ‘single transaction’, and then to determine whether such transactions may constitute the transfer of a totality of assets or part thereof within the meaning of Article 19 of the VAT Directive.

24 In the first place, it should be noted that, for VAT purposes, each transaction must normally be regarded as distinct and independent, as follows from the second subparagraph of Article 1(2) of the VAT Directive (see judgment of 1 August 2025, Határ Diszkont, C‑427/23, EU:C:2025:596, paragraph 37 and the case-law cited; see also, to that effect, judgment of 25 February 1999, CPP, C‑349/96, EU:C:1999:93, paragraph 29).

25 Nevertheless, according to established case-law, in certain circumstances, several formally distinct transactions – which might, taken separately, give rise to taxation or exemption – must be considered to be a single transaction when they are not independent. A transaction is a single supply where, in particular, two or more components or acts supplied by the taxable person are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split (see judgment of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraphs 69 and 70 and the case-law cited; judgment of 1 August 2025, Határ Diszkont, C‑427/23, EU:C:2025:596, paragraphs 38 and 39).

26 In the context of the cooperation established under Article 267 TFEU, it is for the national court to determine whether that is the case, having regard, in the context of an overall assessment, to the qualitative importance, and not simply the quantitative importance, of the relevant components. The EU Courts may nonetheless provide it with all the elements of interpretation of EU law that may be of use to it (see, to that effect, judgments of 27 October 2005, Levob Verzekeringen and OV Bank, C‑41/04, EU:C:2005:649, paragraph 23, and of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 33). It is therefore for the referring court to verify the following elements.

27 It is apparent from the file before the General Court that each of the beneficiaries of the transfer of undertaking B. receives a share amounting to half of that undertaking. The co-owners are separate legal entities; they will be sole owners of their respective shares in undertaking B., and may each dispose of their share without the other’s consent. It follows that A.K. and P.K. are individually free to carry out, or not to carry out, the second proposed transaction consisting of transferring undertaking B. to the general partnership which they jointly own. Furthermore, that second transaction is not conditional upon the first, is independent of it and will take place at a later date, as the applicant in the main proceedings confirmed at the hearing.

28 Thus, subject to verification by the referring court, it appears to follow, in essence, from these facts that the various transactions in the present case cannot be regarded as transactions so closely linked that they objectively constitute a single, indivisible economic transaction within the meaning of the case-law cited in paragraph 25 above.

29 It follows that the four transactions at issue in the main proceedings, namely, first, the transfer by D.B. to A.K. and P.K. of two shares each equivalent to half of undertaking B., and, secondly, the transfer to the general partnership jointly owned by A.K. and P.K. of the two shares they received from D.B., must normally be regarded as each constituting a separate and independent transaction within the meaning of Article 1(2) of the VAT Directive, in accordance with the case-law cited in paragraph 24 above.

30 In the second place, it should be noted that the purpose of the first paragraph of Article 19 of the VAT Directive is to facilitate transfers of undertakings by making such transfers simpler and by preventing the cash resources of the recipient from being overburdened by a disproportionate charge to tax which, in any event, would ultimately be recovered through deduction of the input VAT paid (see judgment of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraph 13 and the case-law cited).

31 As regards the question of whether the transfer, without consideration, of an undertaking to two natural persons, each receiving half, who intend to transfer those shares to a general partnership owned by them, constitutes the transfer of a totality of assets or part thereof within the meaning of Article 19 of the VAT Directive, it should be emphasised that two conditions must be met.

32 It is clear from case-law that the concept of ‘transfer of a totality of assets or part thereof’ must be interpreted as covering the transfer of a business or an independent part of an undertaking, including tangible elements and, as the case may be, intangible elements, where, first, those elements together constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity and, secondly, the transferee intends to operate the business or part of the undertaking transferred and not merely to liquidate the activity concerned immediately (see, to that effect, judgment of 30 May 2013, X, C‑651/11, EU:C:2013:346, paragraph 32 and the case-law cited).

33 In order for there to be, as required by the first condition laid down by the case-law referred to in paragraph 32 above, a transfer of a business, or of an independent part of an undertaking, all of the elements transferred must, together, be sufficient to allow an independent economic activity to be carried on (see judgment of 19 December 2018, Mailat, C‑17/18, EU:C:2018:1038, paragraph 15 and the case-law cited).

34 As the Advocate General states in point 65 of his Opinion, it is in respect of each of D.B.’s daughters that it must be ascertained whether the condition relating to the ability to carry on undertaking B.’s economic activity independently is satisfied, given that the transactions at issue in the main proceedings are distinct and independent of one another, as noted in paragraph 29 above.

35 It is apparent from the request for a preliminary ruling that, as part of the division of assets between D.B.’s two daughters, a share amounting to half of undertaking B. will be transferred to each of them. Such a transfer, subject to the checks which it is for the referring court to carry out, cannot be treated as a transfer of a totality of assets or part thereof within the meaning of Article 19 of the VAT Directive, in so far as each of those shares does not constitute an autonomous unit comprising the assets of that undertaking, such that D.B.’s two daughters could have separately carried on an independent economic activity.

36 Consequently, the transfer to two persons of a share representing half of an undertaking, such that those persons cannot individually carry on an independent economic activity, does not satisfy the first condition for the application of the scheme provided for in Article 19 of the VAT Directive, irrespective of their intention to make a contribution in kind of those shares to a company carrying on an economic activity, of which they are partners.

37 As the condition relating to the ability to carry on an economic activity independently is not met, the possibility of a total or partial transfer of assets, within the meaning of Article 19 of the VAT Directive, is ruled out. Consequently, there is no need to examine the condition relating to the recipient’s intention to carry on such an activity.

38 It follows from all the foregoing considerations that the answer to the question referred for a preliminary ruling is that the first paragraph of Article 19 of the VAT Directive must be interpreted as meaning that the transfer, without consideration, of an undertaking to two natural persons, each receiving a half share, who intend immediately to make a contribution in kind of those shares to a company carrying on an economic activity, of which they are partners, does not constitute a transfer of a totality of assets or part thereof within the meaning of that provision.

Costs

39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds,

THE GENERAL COURT (Fifth Chamber, sitting with five Judges)

hereby rules:

The first paragraph of Article 19 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that the transfer, without consideration, of an undertaking to two natural persons, each receiving a half share, who intend to make an immediate contribution in kind of those shares to a company carrying on an economic activity, of which they are partners, does not constitute a transfer of a totality of assets or part thereof within the meaning of that provision.

Sampol Pucurull

Pynnä

Laitenberger

Stancu

Valasidis

Delivered in open court in Luxembourg on 9 September 2026.

[Signatures]

* Language of the case: Polish.

i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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