Opinion of the Advocate General — ECLI:EU:C:2010:139
Date: 2010-03-11
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions – Exemption of betting, lotteries and other forms of gambling (Council Directive 2006/112, Art. 135(1)(i)) Article 135(1)(i) of Directive 2006/112 on the common system of value added tax must be interpreted as meaning that the exercise of the discretionary power of the Member States to fix conditions and limitations on the exemption from value added tax provided for by that provision allows those States to exempt from that tax certain forms only of gambling. That provision leaves a broad discretion to the Member States as regards the exemption or the taxation of the transactions concerned, for it allows those States to fix the conditions and the limitations to which entitlement to that exemption may be subject. In addition, its wording does not contain any indication to suggest that the Community legislature intended to put in place any form whatsoever of quantitative restriction in order, inter alia, to ensure that at least 50% of the forms of gambling operated and organised in a Member State or at least 50% of the turnover generated by the operation and organisation of those forms of gambling could come within the value added tax exemption provided for in that provision. Moreover, the principle of fiscal neutrality, in accordance with which supplies of similar services, which are therefore in competition with each other, must not be treated differently for value added tax purposes, does not preclude such legislation. That principle cannot, if it is not to deprive Article 135(1)(i) of Directive 2006/112 and the broad discretion which that provision grants to Member States of all effectiveness, be interpreted as precluding one form of gambling from being exempt from the payment of value added tax while another form of gambling is not, in so far, however, as the two forms of gambling are not in competition with one another. (see paras 26-27, 34-35, 39, operative part)