Opinion of the Advocate General — ECLI:EU:C:1998:40
Date: 1998-02-03
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

Summary of the Judgment
Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value added
tax — Exemptions provided for by the Sixth Directive — Exemption for certain services closely
linked to sport or physical education supplied by non-profit-making organisations to persons tak­
ing part in those activities — National legislation restricting the exemption to private establish­
ments with membership fees not exceeding a certain amount — Not permissible
(Council Directive 77/388, Art. 13(A)(1)(m) and Art. 13(A)(2)(a), third indent)
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SUMMARY— CASE C-124/96
A Member State which provides that VAT
exemption for services closely linked to
sport or physical education applies only to
those private establishments whose member­
ship fees do not exceed a specified amount
fails to fulfil its obligations under Article
13(A)(1)(m) of the Sixth Directive 77/388 on
the harmonisation of the laws of the Member
States relating to turnover taxes.
The conditions which may be laid down pur­
suant to Article 13(A)(1) of the Sixth Direc­
tive do not in any way affect the definition
of the subject-matter of the exemptions
envisaged by that provision, but are intended
to ensure the correct and straightforward
application of the exemptions and refer to
measures intended to prevent any possible
evasion, avoidance or abuse.
To apply the criterion of the amount of
membership fees may lead to results con­
trary to Article 13(A)(1)(m) of the Sixth
Directive: it may result, first, in a non-profit-
making body being excluded from the ben­
efit of the exemption provided for by the
provision and, secondly, in a profit-malung
body being able to benefit from it. More­
over, there is nothing in that provision to the
effect that a Member State, when granting an
exemption for a certain supply of services
closely linked to sport or physical education
provided by non-profit-making bodies, may
make that exemption subject to any condi­
tions other than those laid down in Article
13(A)(2) of the Sixth Directive.
The third indent of Article 13(A)(2)(a) of the
Sixth Directive does not imply that a Mem­
ber State, by making the exemption envis­
aged in Article 13(A)(1)(m) subject to one or
more conditions laid down in paragraph 2(a)
of that provision, may alter the scope of the
latter. Moreover, Article 13(A)(2)(a) excludes
a restriction of the exemption to private
sports bodies or establishments of a social
nature which charge membership fees not
exceeding a certain amount without taking
into account the nature and particular cir­
cumstances of each sporting activity.
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