Summary of ECJ C-677/21: Unlawful use of energy is a supply of goods


  • MX was summoned by Fluvius to pay EUR 813.41 for electricity consumption from May 2017 to August 2019, along with default and statutory interest.
  • MX had not been invoiced before as Fluvius had been supplying electricity to them under a public service obligation.
  • However, MX had used electricity without a contract with a commercial supplier and was therefore supplied by Fluvius under the same obligation.
  • Fluvius invoiced MX for the actual usage, which was deemed unlawful. The magistrate asked Fluvius to clarify the VAT chargeability on the invoiced amount.


  • Does the unlawful usage of energy constitute a supply of goods under Article 2(1)(a) and Article 14(1) of Directive 2006/112/EC, or is it considered a transfer of ownership under Article 14(2)(a)?
  • If Fluvius Antwerpen is entitled to compensation for the unlawful usage of energy, does it qualify as a taxable person under Article 9(1) of Directive 2006/112/EC due to its economic activity of exploiting tangible property for income?
  • If so, does this make Fluvius Antwerpen a public authority under the first paragraph of Article 13(1), and is the unlawful usage of energy significant enough to not be considered negligible under the third paragraph of Article 13(1)?


  • The supply of electricity by a distribution network operator, even if involuntary and due to unlawful conduct by a third party, constitutes a supply of goods for consideration entailing the transfer of the right to dispose of tangible property.
  • This also constitutes an economic activity of the operator as it involves a risk inherent in its activity.
  • If carried out by a public authority, it may be considered negligible only if it has minimal impact on competition.

See also

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  • For an overview of ECJ cases per article of the EU VAT Directive, click HERE


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