Judgment;Summary — ECLI:EU:C:2019:1138
Date: 2019-12-19
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-715/18 — 1 
Case C-715/18 
Request for a preliminary ruling 
Date lodged: 
15 November 2018 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
2 August 2018 
Applicant and appellant on a point of law: 
Segler-Vereinigung Cuxhaven e.V. 
Defendant and respondent in the appeal on a point of law: 
Finanzamt Cuxhaven 
  
[...] 
BUNDESFINANZHOF 
(FEDERAL FINANCE COURT) 
[...] 
ORDER 
In the case of 
Segler-Vereinigung Cuxhaven e.V., [...] Cuxhaven, 
applicant and appellant on a point of law, 
[...] 
v 
Finanzamt Cuxhaven (Cuxhaven Tax Office), 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 8. 2018 — CASE C-715/18 
 
2  
defendant and respondent in the appeal on a point of law, 
concerning turnover tax from 2010 to 2012, 
the Vth Chamber 
[...] [composition of the Chamber] 
ordered as follows on 2 August 2018: 
A. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: [Or. 2]  
Does the tax rate reduction for the letting of places on camping or caravan 
sites under Article 98(2) of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax (‘the VAT Directive’), in 
conjunction with Annex III, No 12, to that directive, also cover the letting of 
boat moorings? 
B. The proceedings are stayed pending the decision of the Court of Justice of 
the European Union. 
Grounds 
I. 
1 In dispute is the question whether the turnover from the collection of harbour fees 
is subject to the reduced tax rate under Paragraph 12(2)(11) of the 
Umsatzsteuergesetz (Law on turnover tax; ‘the UStG’). 
2 The applicant and appellant on a point of law (‘the applicant’) is a registered, non-
profit association whose purpose is to promote sailing and motorised water sports. 
3 In its harbour, it maintains some 300 moorings, around 50 per cent of which were 
permanently allocated to members in the years at issue. The members are obliged 
to tolerate the use of their moorings by guests in their absence. The remaining 50 
per cent of the moorings are available to guests without restriction. 
4 The applicant subjected the revenues from letting the moorings to guests to the 
reduced tax rate in the years at issue (2010 to 2012). Following a special turnover 
tax audit carried out on the applicant, the defendant and [Or. 3] respondent in the 
appeal on a point of law (‘the tax office’) amended the turnover tax assessments 
for 2010 to 2012 and subjected the turnover at issue to the standard rate of 
taxation. 
5 The Finanzgericht (Finance Court) (FC) dismissed the action by its [...] judgment. 
The short-term letting of boat moorings could not, it ruled, be subsumed under the 
wording ‘short-term letting of camping areas’ under Paragraph 12(2)(11) of the 
UStG. A boat was primarily a means of transport. It was irrelevant that many 
SEGLER 
 
3 
boats also had facilities for overnight stays (cabins) and that these could be used 
accordingly on the guest moorings. 
6 The short-term letting of boat moorings was instead covered by the wording 
‘letting of premises and sites for the parking of vehicles’ of the second alternative 
of Paragraph 4(12)(2) of the UStG based on Article 135(2)(b) of Council 
Directive 2006/112/EC of 28 November 2006 on the common system of value 
added tax (‘the VAT Directive’). This conclusion obtained by way of grammatical 
and systematic interpretation, according to the FC, was also supported by the 
development history of Paragraph 12(2)(11) of the UStG and the meaning and 
purpose thereof. This conclusion was not precluded by the general principle of 
equality set out in Article 3(1) of the Grundgesetz (Basic Law; ‘the GG’). 
7 This is opposed by the applicant by its appeal on a point of law, in which it claims 
that there has been an infringement of substantive law. Taxation at the standard 
rate, it submits, infringes the general principle of equality, because the letting of 
areas for motor homes and caravans is subject to the reduced tax rate. This, in its 
view, favours a comparable economic process. [Or. 4] 
8 According to the FC’s argument that there could not be a tax reduction under 
Paragraph 12(2)(11) of the UStG for the letting of premises and sites for the 
parking of vehicles, there should also be no reduced tax rate for the letting of 
premises and sites for the parking of motor homes. That, it found, is manifestly 
contrary to the statutory provisions and the will of the legislature, which 
fundamentally wishes to tax all short-term accommodation in facilities of any kind 
at the reduced tax rate. In addition, the applicant does not provide premises and 
sites for the parking of vehicles, but performs accommodation services. The focus 
of the services performed thereby is the letting of moorings for the purpose of 
accommodating yachtsmen. A prerequisite for the occurrence of a transaction is 
not the parking of a vehicle, but a longer stay for at least one night; the so-called 
harbour fee is incurred exclusively for overnight stays. The possibility of parking 
the vehicle is of secondary importance. 
II. 
9 [...] [Procedural matters]  
10 1. Legal context 
11 (a) EU law 
12 (aa) Pursuant to Article 20 of the Charter of Fundamental Rights of the European 
Union (‘the EU Charter of Fundamental Rights’), everyone is equal before the 
law. 
13 (bb) Article 52(1) of the EU Charter of Fundamental Rights guarantees that any 
[Or. 5] limitation on the exercise of the rights and freedoms recognised by the 
Charter must be provided for by law and respect the essence of those rights and 
REQUEST FOR A PRELIMINARY RULING OF 2. 8. 2018 — CASE C-715/18 
 
4  
freedoms. Subject to the principle of proportionality, limitations may be made 
only if they are necessary and genuinely meet objectives of general interest 
recognised by the European Union or the need to protect the rights and freedoms 
of others. 
14 (cc) Pursuant to Article 98(1) of the VAT Directive, Member States may apply 
either one or two reduced rates. Pursuant to Article 98(1) of the VAT Directive, 
the reduced rates are to apply only to supplies of goods or services in the 
categories set out in Annex III. 
15 (dd) Annex III, No 12, to the VAT Directive provides, inter alia, for the possibility 
of a tax reduction for the letting of places on camping or caravan sites. 
16 (b) National law 
17 (aa) Pursuant to Article 3(1) of the GG, everyone is equal before the law. 
18 (bb) Paragraph 4(12)(a) of the UStG provides that the letting and leasing of 
immovable property, rights governed by provisions of civil law relating to 
immovable property, and sovereign rights in regard to immovable goods and 
property are exempt from taxation. There is no exemption for the letting of living 
and sleeping areas provided by a commercial operator for the short-term 
accommodation of strangers, the letting of premises and sites for the parking of 
vehicles, the short-term letting of places on camping sites and the letting and 
[Or. 6] leasing of equipment and machinery of any kind, which are part of an 
undertaking’s operating plant (operating devices), even where they are constituent 
parts of an immovable property. 
19 (cc) The first sentence of Paragraph 12(2)(11) of the UStG provides that the tax is 
to be reduced to seven per cent for the letting of living and sleeping areas 
provided by a commercial operator for the short-term accommodation of 
strangers, and the short-term letting of camping areas. 
20 2. The position under EU law 
21 (a) Pursuant to Article 98(1) of the VAT Directive, Member States may apply 
either one or two reduced rates. Under Article 98(2) of the VAT Directive, the 
reduced rates are to apply only to supplies of goods or services in the categories 
set out in Annex III (also cf. Court of Justice judgment of 6 May 2010, 
Commission v France, C-94/09, EU:C:2010:253, paragraph 22). Annex III, 
No 12, to the VAT Directive provides, inter alia, for the possibility of a tax 
reduction for the letting of places on camping or caravan sites. 
22 (b) These provisions of EU law raise doubts as to whether an authorisation of the 
Member States to apply a reduced tax rate to the letting of boat moorings can be 
assumed. This is because it is questionable whether the terms ‘places on camping 
sites’ and ‘places on caravan sites’ can also cover boat moorings. 
SEGLER 
 
5 
23 In addition, provisions which — like tax reductions — are in the nature of 
exceptions to a principle must be interpreted strictly, that [Or. 7] is to say, in 
accordance with the usual meaning of those words (Court of Justice judgments of 
18 March 2010, Erotic Center, C-3/09, EU:C:2010:149, paragraphs 15 and 16, 
and of 18 January 2001, Commission v Spain, C-83/99, EU:C:2001:31, 
paragraph 19; [...] [reference to national case-law]). According thereto, boat 
moorings are neither places on camping sites nor places on caravan sites. This is 
because the origin of ‘camping’ is to be found in the Latin word ‘campus’ — 
field. It might also have to be considered that, as opposed to a camping site, a 
harbour generally has additional functions, for example the capacity as a 
transshipment point for economic goods. 
24 (c) On the other hand, the general principle of equal treatment enshrined in 
Article 20 of the EU Charter of Fundamental Rights is one of the fundamental 
principles of EU law. 
25 (aa) It requires — as in national law Article 3 of the GG — that comparable 
situations must not be treated differently, and that different situations must not be 
treated in the same way, unless such treatment is objectively justified (Court of 
Justice judgments of 19 October 1977, Ruckdeschel and Hansa-Lagerhaus Ströh 
& Co., 117/76 and 16/77, EU:C:1977:160, paragraph 7; of 13 March 2014, Jetair 
and BTWE Travel4you, C-599/12, EU:C:2014:144, paragraph 53; and of 
11 February 2015, bpost, C-340/13, EU:C:2015:77, paragraph 27). 
26 (bb) In VAT law, the principle of equal treatment is also expressed in the principle 
of fiscal neutrality (Court of Justice judgments of 15 November 2012, 
Zimmermann, C-174/11, EU:C:2012:716, paragraph 46 et seq.; Jetair and BTWE 
[Or. 8] Travel4you, EU:C:2014:144, paragraph 53). That principle also precludes 
economic operators carrying out the same transactions from being treated 
differently in relation to the levying of turnover tax (Court of Justice judgments of 
28 June 2007, JP Morgan and Others, C-363/05, EU:C:2007:391, paragraph 29; 
of 19 July 2012, A, C-33/11, EU:C:2012:482, paragraph 32; reference by the 
Bundesfinanzhof (Federal Finance Court) to the Court of Justice of 22 June 2016 
[in Case C-462/16] V R 42/15, [...] paragraph 36). 
27 (cc) The present Chamber therefore considers it conceivable that the functional 
and economic identity of the services demands equal treatment of both situations 
in the case of tax reduction in order to prevent unequal treatment contrary to the 
general principle of equality and the principle of neutrality. 
28 This is because, in contrast to an industrial port, a pure leisure harbour may have 
the same function as a camping site. This functional and economic identity is 
expressed if one also speaks of ‘motor home parks’ in the case of areas for motor 
homes. Both the driver of a motor home and the helmsman of a boat, with their 
vehicles also being designed for overnight accommodation, use a ‘motor home 
park’ or a (boat) harbour which provides electricity, water, disposal facilities and 
sanitary facilities for the passengers and vehicles. It is not the surface on which 
REQUEST FOR A PRELIMINARY RULING OF 2. 8. 2018 — CASE C-715/18 
 
6  
the vehicle stands or floats that characterises the service performed, but rather the 
infrastructure. In essence, the applicant, in the same way as the operator of a 
motor home park, provides its customers with accommodation and the possibility 
of staying overnight in their own vehicle. The fact that the driver of a motor home 
reaches his destination via the public road network whereas the helmsman of a 
boat uses waterways for this purpose is of no significance for the qualification of 
the service. That can already be deduced from the fact that camping is 
characterised not by the [Or. 9] form of the journey, but by the conduct at the 
destination. However, the two services differ in that in one case the vehicle is on 
an area of water and in the other case the vehicle is on some kind of solid surface. 
29 3. The position under national law 
30 Pursuant to the first sentence of Paragraph 12(2)(11) of the UStG, the tax is 
reduced to seven per cent for the letting of living and sleeping areas provided by a 
commercial operator for the short-term accommodation of strangers, and for the 
short-term letting of camping areas. 
31 (a) The literal interpretation allows the inclusion of boat moorings within the term 
‘camping area’. It is true that boat moorings may not be covered by the concept of 
a camping site, which is not defined by federal law [...] [reference to national 
case-law]. This is because, according to the camping-site regulations of most 
federal states (cf. for example in each case Paragraph 1(1) of the camping site 
regulations — CPlVO — for Bavaria, Mecklenburg-West Pomerania, Lower 
Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Saxony-Anhalt, 
Paragraph 1, in conjunction with Paragraph 2(1) and (2), of the CPlVO Baden-
Württemberg), it is possible to define as a camping site any site which — at least 
for certain times of the year — is intended to accommodate more than three 
caravans or tents, with a motor home also being regarded as a caravan [...] 
[reference to national case-law]. [Or. 10] 
32 However, the legislature did not restrict the tax reduction in Paragraph 12(2)(11) 
of the UStG to camping sites, but extended it to the short-term letting of camping 
areas, even though it provides a regulation for the short-time letting of places on 
camping sites in the second sentence of Paragraph 4(12) of the UStG. The 
legislature thereby opens up the possibility of also including other areas within the 
tax reduction. This is because the term ‘area’ also covers areas of water. The 
origin of the word ‘campus’ – field – is of secondary importance in this regard. In 
the same way that it is irrelevant for the concept of a plot of land whether or not 
the plot is flooded with water [...] [reference to national case-law], it is irrelevant 
for the concept of a camping area whether this consists of grass, concrete or 
indeed of water. 
33 (b) The inclusion of the letting of boat moorings within the tax reduction is also in 
line with the intention of the legislature and additionally satisfies the purpose of 
the provision. 
SEGLER 
 
7 
34 (aa) Paragraph 12(2)(11) of the UStG was inserted into the UStG by the Law for 
the Acceleration of Economic Growth (‘Growth Acceleration Law’) of 
22 December 2009 (Bundesgesetzblatt (Federal Law Gazette; ‘BGBl’) I 2009, 
3950). The provision was intended to promote not only the turnover of the 
traditional hotel industry but also short-term accommodation in guest houses, 
guest rooms and comparable facilities (Report of the Finance Committee, 
documents of the German Federal Parliament — BTDrucks — 17/147, page 9, 10 
on Article 5 on No 1). The ‘comparable facilities’ were then defined in the law by 
the term ‘camping areas’. This is understood by the legislature as ‘for example 
areas for pitching tents, and areas for parking caravans’ (BTDrucks 17/147, page 
9, 10). With this list of examples, the legislature makes it clear that the list is not 
intended to be exhaustive but is to be open to all comparable forms of short-term 
accommodation. 
35 (bb) The purpose of the provision, promoting short-term accommodation services, 
also demands the inclusion of the transactions carried out by the applicant. This is 
because, if the legislature regards motor home parks as ‘comparable facilities’, 
there is no objective justification for not regarding boot moorings as a 
‘comparable facility’. This is because the decisive factor is not the aggregate state 
of the leased area, but its function, that is to say, what matters is whether the area 
is provided and leased for camping. However, the concept of camping covers a 
wide range of activities which share the fact that, instead of staying overnight in a 
building, time is spent in the open countryside or at facilities provided for 
camping. That applies equally to the helmsman of a boat and the driver of a motor 
home. 
36 (c) The usual constitutionally compatible interpretation on the basis of Article 3(1) 
of the GG is ruled out in the present case. This is because provisions of national 
law which are determined by EU law are, in principle, not examined in 
accordance with the fundamental rights of the Grundgesetz, as long as the 
European Union generally ensures effective protection of fundamental rights 
which is essentially to be considered the same as the protection of fundamental 
rights required by the Grundgesetz [...] [Or. 12] [...] [reference to national case-
law]. That is the case with regard to the general principle of equality in Article 20 
of the EU Charter of Fundamental Rights. 
37 4. Relevance of the question referred 
38 EU law must be taken in to account in the interpretation of Paragraph 12(2)(11) of 
the UStG [...] [reference to national case-law]. The question referred is relevant to 
the question of whether Article 98(1) of the VAT Directive, in conjunction with 
Annex III, No 12, thereto, precludes the interpretation of a national provision 
which would lead to the application of a reduced tax rate to the letting of boat 
moorings. 
39 5. Legal basis of the request for a preliminary ruling 
REQUEST FOR A PRELIMINARY RULING OF 2. 8. 2018 — CASE C-715/18 
 
8  
40 The request for a preliminary ruling is made to the Court of Justice on the basis of 
Article 267 of the Treaty on the Functioning of the European Union. [Or. 13] 
41 [...] 
42 [...] [Matters procedural] 
43 [...] [Names of the judges involved in the decision]