# C_2012389EN.01000401.xml

| 15.12.2012 | EN | Official Journal of the European Union | C 389/4 |
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15.12.2012

EN

Official Journal of the European Union

C 389/4

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Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf

(Case C-440/12)

2012/C 389/06

Language of the case: German

Referring court

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Parties to the main proceedings

Applicant: Metropol Spielstätten Unternehmergesellschaft (with limited liability)

Applicant:

Defendant: Finanzamt Hamburg-Bergedorf

Defendant:

Questions referred

Questions referred

| 1. | Is Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in combination with Article 135(1)(i) of that directive, to be interpreted as meaning that value added tax and a national special tax on games of chance may be levied only as alternatives, and not cumulatively? |
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1.

Is Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in combination with Article 135(1)(i) of that directive, to be interpreted as meaning that value added tax and a national special tax on games of chance may be levied only as alternatives, and not cumulatively?

1

| 2. | Only if the answer to Question 1 is in the affirmative:
  If, under national provisions, both value added tax and a special tax are levied on games of chance, does this mean that value added tax is not levied or that the special tax is not levied, or does the decision as to which of the two taxes may not be levied depend on national law? |
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2.

Only if the answer to Question 1 is in the affirmative:

If, under national provisions, both value added tax and a special tax are levied on games of chance, does this mean that value added tax is not levied or that the special tax is not levied, or does the decision as to which of the two taxes may not be levied depend on national law?

| 3. | Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winning, the content of the machine’s cash box (‘electronically counted cash box’) serves as a basis of assessment after a certain period of time? |
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3.

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winning, the content of the machine’s cash box (‘electronically counted cash box’) serves as a basis of assessment after a certain period of time?

| 4. | Only if the answer to Question 3 is in the affirmative:
  How is the basis of assessment otherwise to be determined? |
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4.

Only if the answer to Question 3 is in the affirmative:

How is the basis of assessment otherwise to be determined?

| 5. | Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that the levying of VAT is subject to the condition that the trader can pass the value added tax on to the recipient of the supply? If so, what is to be understood by the ability to pass on the tax? In particular, is the legal permissibility of a correspondingly higher price for the product or service an attribute of the ability to pass that tax on? |
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5.

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that the levying of VAT is subject to the condition that the trader can pass the value added tax on to the recipient of the supply? If so, what is to be understood by the ability to pass on the tax? In particular, is the legal permissibility of a correspondingly higher price for the product or service an attribute of the ability to pass that tax on?

| 6. | Only if in answer to Question 5 the legal permissibility of a higher price is a precondition:
  Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that provisions which limit the consideration for goods or services subject to value added tax are to be applied in accordance with European Union law in such a way that value added tax is understood not to be included in the consideration set but to be in addition to it, even where, according to their wording, the national provisions governing consideration do not expressly so provide? |
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6.

Only if in answer to Question 5 the legal permissibility of a higher price is a precondition:

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that provisions which limit the consideration for goods or services subject to value added tax are to be applied in accordance with European Union law in such a way that value added tax is understood not to be included in the consideration set but to be in addition to it, even where, according to their wording, the national provisions governing consideration do not expressly so provide?

| 7. | Only if the answer to Question 5 is in the affirmative and the answers to Questions 6 and 3 are in the negative:
  In the present case, is no value added tax to be levied on the total turnover of the gaming machines, or is it to be levied only on the part that cannot be passed on, and how is that part to be determined: for example, on the turnover at which the stake per game could not be increased, or on the turnover at which the contents of the cash box per hour could not be increased? |
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7.

Only if the answer to Question 5 is in the affirmative and the answers to Questions 6 and 3 are in the negative:

In the present case, is no value added tax to be levied on the total turnover of the gaming machines, or is it to be levied only on the part that cannot be passed on, and how is that part to be determined: for example, on the turnover at which the stake per game could not be increased, or on the turnover at which the contents of the cash box per hour could not be increased?

| 8. | Is Article 1(2) of Directive 2006/112 to he interpreted as precluding a national regulation on an unharmonised tax under which the value added tax owed is set in full against that tax? |
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8.

Is Article 1(2) of Directive 2006/112 to he interpreted as precluding a national regulation on an unharmonised tax under which the value added tax owed is set in full against that tax?

| 9. | Only if the answer to Question 8 is in the affirmative:
  Does the setting of value added tax against a national, unharmonised tax in the case of traders liable to pay the latter tax have the effect that value added tax may not be levied on their competitors who, though not subject to this unharmonised tax, are subject to another special tax and for whom there is no provision for such offsetting? |
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9.

Only if the answer to Question 8 is in the affirmative:

Does the setting of value added tax against a national, unharmonised tax in the case of traders liable to pay the latter tax have the effect that value added tax may not be levied on their competitors who, though not subject to this unharmonised tax, are subject to another special tax and for whom there is no provision for such offsetting?

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(1)  OJ 2006 L 347, p. 1.

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