# C_2014112EN.01000801.xml

| 14.4.2014 | EN | Official Journal of the European Union | C 112/8 |
| --- | --- | --- | --- |

14.4.2014

EN

Official Journal of the European Union

C 112/8

---

Judgment of the Court (Eighth Chamber) of 27 February 2014 (requests for a preliminary ruling from the Bundesfinanzhof — Germany) — Pro Med Logistik GmbH (C-454/12) v Finanzamt Dresden-Süd and Eckard Pongratz, acting as the receiver appointed to deal with the bankruptcy of Karin Oertel (C-455/12) v Finanzamt Würzburg mit Außenstelle Ochsenfurt

(Joined Cases C-454/12 and C-455/12) (1)

1

((Request for a preliminary ruling - VAT - Sixth VAT Directive - Article 12(3) - Annex H, category 5 - Directive 2006/112/EC - Article 98(1) and (2) - Annex III, point 5 - Principle of neutrality - Transport of passengers and their accompanying luggage - Legislation of a Member State applying different rates of VAT to transport by taxi and to transport by minicab))

2014/C 112/09

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Applicants: Pro Med Logistik GmbH (C-454/12), Eckard Pongratz, acting as the receiver appointed to deal with the bankruptcy of Karin Oertel (C-455/12)

Applicants:

Defendants: Finanzamt Dresden-Süd (C-454/12), Finanzamt Würzburg mit Außenstelle Ochsenfurt (C-455/12)

Defendants:

Re:

Re:

Requests for a preliminary ruling — Bundesfinanzhof — Germany — Interpretation of Article 98(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) in conjunction with point 5 of Annex III thereto, and of the third subparagraph of Article 12(3)(a), as amended, of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) in conjunction with point 5 of Annex H thereto, as amended — Principle of neutrality — Legislation of a Member State providing for a difference in treatment for VAT purposes between supplies of services which are identical from the consumer’s point of view and which meet the same needs — Transport of patients by taxi treated differently to the transport of patients by minicab.

Operative part of the judgment

Operative part of the judgment

| 1) | Having regard to the principle of fiscal neutrality, the third subparagraph of Article 12(3)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/4/EC of 19 January 2001, read in conjunction with Annex H, category 5, thereto, and Article 98(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III, point 5, thereto, must be interpreted as not precluding two types of services for the local transport of passengers and their accompanying luggage, namely transport by taxi and transport by minicab, from being subject to different rates of value added tax, one a reduced rate and the other the standard rate, in so far as, first, by reason of the different statutory requirements to which those two types of transport are subject, the activity of local transport of passengers by taxi constitutes a concrete and specific aspect of the category of services of transport of passengers and their accompanying luggage, covered by category 5 and point 5 of the respective annexes to those directives and, secondly, those differences have a decisive influence on the decision of the average user to use one such service or the other. It is for the referring court to determine whether that is the position in the cases in the main proceedings; |
| --- | --- |

1)

Having regard to the principle of fiscal neutrality, the third subparagraph of Article 12(3)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/4/EC of 19 January 2001, read in conjunction with Annex H, category 5, thereto, and Article 98(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III, point 5, thereto, must be interpreted as not precluding two types of services for the local transport of passengers and their accompanying luggage, namely transport by taxi and transport by minicab, from being subject to different rates of value added tax, one a reduced rate and the other the standard rate, in so far as, first, by reason of the different statutory requirements to which those two types of transport are subject, the activity of local transport of passengers by taxi constitutes a concrete and specific aspect of the category of services of transport of passengers and their accompanying luggage, covered by category 5 and point 5 of the respective annexes to those directives and, secondly, those differences have a decisive influence on the decision of the average user to use one such service or the other. It is for the referring court to determine whether that is the position in the cases in the main proceedings;

| 2) | By contrast, having regard to the principle of fiscal neutrality, the third subparagraph of Article 12(3)(a) of Sixth Directive 77/388, as amended by Directive 2001/4, read in conjunction with Annex H, category 5, thereto, and Article 98(1) and (2) of Directive 2006/112, read in conjunction with Annex III, point 5, thereto, must be interpreted as precluding two types of services for the local transport of passengers and their accompanying luggage, namely transport by taxi and transport by minicab, from being subject to different rates of value added tax in the case where, under a special agreement which applies indiscriminately to the taxi undertakings and minicab undertakings which are parties to it, the transport of passengers by taxi is not a concrete and specific aspect of the transport of passengers and their accompanying luggage, and where that activity carried out under that agreement is considered to be similar, from the point of view of the average user, to the activity of local transport of passengers by minicab, this being a matter for the referring court to determine. |
| --- | --- |

2)

By contrast, having regard to the principle of fiscal neutrality, the third subparagraph of Article 12(3)(a) of Sixth Directive 77/388, as amended by Directive 2001/4, read in conjunction with Annex H, category 5, thereto, and Article 98(1) and (2) of Directive 2006/112, read in conjunction with Annex III, point 5, thereto, must be interpreted as precluding two types of services for the local transport of passengers and their accompanying luggage, namely transport by taxi and transport by minicab, from being subject to different rates of value added tax in the case where, under a special agreement which applies indiscriminately to the taxi undertakings and minicab undertakings which are parties to it, the transport of passengers by taxi is not a concrete and specific aspect of the transport of passengers and their accompanying luggage, and where that activity carried out under that agreement is considered to be similar, from the point of view of the average user, to the activity of local transport of passengers by minicab, this being a matter for the referring court to determine.

---

(1)  OJ C 399, 22.12.2012.

1

---