Judgment — ECLI:EU:C:2011:135
Date: 2011-03-10
Language of the case: German
Court formation: Third Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

summary and standardised preparation being intrinsic to them and the provision of rudimentary facilities to enable a limited number of customers to consume the food on the spot being of a merely ancillary and subordinate nature. Whether the customers use those rudimentary facilities or not is immaterial, since, as immediate consumption on the spot is not an essential characteristic of the transaction in question, it cannot determine its character. 75 With respect to party catering activities such as those at issue in the main proceedings in Case C‑502/09, it should be noted, first, that, as is apparent from paragraph 38 above, several combinations of transactions are conceivable, depending on customers’ wishes, ranging from the mere preparation and delivery of meals to the full service consisting in addition of the provision of crockery, furniture (tables and chairs), presentation of the dishes, decorations, provision of serving staff, and advice on the composition of the menu and if appropriate the choice of drinks. 76 Next, since what is concerned is a single supply, the classification of the transaction as a supply of goods or a supply of services will depend on all the factual circumstances, having regard to the qualitatively predominant elements from the point of view of the consumer. 77 As regards the food delivered by a party catering service, it must be observed that, unlike food supplied from snack stalls and mobile snack bars and in cinemas, it is not as a rule the result of mere standardised preparation but contains a distinctly greater aspect of the supply of services and requires more work and greater skill. Food quality, creativity and presentation are elements here which are most often of decisive importance for the customer. The customer is frequently offered the possibility not only of choosing the menu but even of having individual dishes made to order. This service aspect is moreover reflected linguistically, in so far as in everyday language one generally speaks of a catering ‘service’ and of food ‘ordered’ rather than ‘bought’ from the caterer. 78 The food is then delivered by the caterer in closed warmed receptacles or reheated by him on the spot. It is also essential for the customer that the food is delivered at the exact time he has specified. 79 Moreover, the supplies of a party catering service may include elements to enable consumption, such as the supply of crockery, cutlery or even furniture. Those elements, unlike the mere provision of a rudimentary infrastructure in the case of snack stalls or mobile snack bars and cinemas, require in addition a certain human intervention to deliver, collect, and if appropriate wash the items. 80 In the light of those considerations, it must be considered that, except in cases in which the caterer does no more than deliver standard meals without any additional service elements, or in which other special circumstances show that the supply of the food represents the predominant element of the transaction, the activities of a party catering service are supplies of services. 81 The answer to the first two questions in Cases C‑497/09 and C‑499/09, the second question in Case C‑501/09, and the second and third questions in Case C‑502/09 is therefore that Articles 5 and 6 of the Sixth Directive must be interpreted as meaning that: – the supply of food or meals freshly prepared for immediate consumption from snack stalls or mobile snack bars or in cinema foyers is a supply of goods within the meaning of Article 5 if a qualitative examination of the entire transaction shows that the elements of supply of services preceding and accompanying the supply of the food are not predominant; – except in cases in which a party catering service does no more than deliver standard meals without any additional elements of supply of services, or in which other special circumstances show that the supply of the food represents the predominant element of a transaction, the activities of a party catering service are supplies of services within the meaning of Article 6. The term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive 82 By the third question in Cases C‑497/09 and C‑499/09 and the first question in Cases C‑501/09 and C‑502/09, which should be taken together, the referring court asks the Court whether, if the transactions at issue in the various main proceedings are supplies of goods, the term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive also covers food or meals prepared for immediate consumption. 83 In the absence of a definition in the Sixth Directive of that concept of foodstuffs, it must be interpreted in the light of its context within the Sixth Directive (see, by analogy, Cases C‑83/99 Commission v Spain [2001] ECR I‑445, paragraph 17, and Case C‑3/09 Erotic Center [2010] ECR I‑0000, paragraph 14). 84 It follows from Article 12(3)(a) of the Sixth Directive that the application of either one or two reduced rates is an option accorded to the Member States as an exception to the principle that the standard rate applies. Moreover, according to that provision, the reduced rates of VAT may be applied only to the supplies of goods and services listed in Annex H to the directive (see Commission v Spain, paragraph 18, and Erotic Center, paragraph 15). It is settled case-law that, in matters of VAT, provisions which are in the nature of exceptions to a principle must be interpreted strictly, while ensuring that the exception is not deprived of its effectiveness (see, inter alia, Case C‑581/08 EMI Group [2010] ECR I‑0000, paragraph 20, and Case C‑175/09 AXA UK [2010] ECR I‑0000, paragraph 25). 85 The provision in question refers to foodstuffs in general and makes no distinction or restriction whatever according to the kind of business, method of selling, packaging, preparation or temperature. 86 Furthermore, the provision also mentions ‘ingredients normally intended for use in preparation of foodstuffs’ and ‘products normally intended to be used to supplement or substitute foodstuffs’. 87 Finally, food and meals prepared for immediate consumption serve as food for consumers. 88 The answer to the third question in Cases C‑497/09 and C‑499/09 and the first question in Cases C‑501/09 and C‑502/09 is therefore that, in cases of the supply of goods, the term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive must be interpreted as also covering food and meals which have been prepared for immediate consumption by boiling, grilling, roasting, baking or other means. Costs 89 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 Court (Third Chamber) hereby rules: 1. Articles 5 and 6 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 92/111/EEC of 14 December 1992, must be interpreted as meaning that: – the supply of food or meals freshly prepared for immediate consumption from snack stalls or mobile snack bars or in cinema foyers is a supply of goods within the meaning of Article 5 if a qualitative examination of the entire transaction shows that the elements of supply of services preceding and accompanying the supply of the food are not predominant; – except in cases in which a party catering service does no more than deliver standard meals without any additional elements of supply of services, or in which other special circumstances show that the supply of the food represents the predominant element of a transaction, the activities of a party catering service are supplies of services within the meaning of Article 6. 2. In cases of the supply of goods, the term ‘foodstuffs’ in category 1 of Annex H to the Sixth Directive 77/388, as amended by Directive 92/111, must be interpreted as also covering food and meals which have been prepared for immediate consumption by boiling, grilling, roasting, baking or other means. [Signatures] * Language of the case: German.