Order — ECLI:EU:C:2024:246
Date: 2024-03-14
Language of the case: Romanian
Court formation: Seventh Chamber
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-576/23 – 1 
Case C-576/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
18 September 2023 
Referring court: 
Curtea de Apel Iași (Romania) 
Date of the decision to refer: 
10 July 2023 
Appellant and applicant at first instance: 
Elite Games SRL 
Respondents and defendants at first instance: 
Administrația Județeană a Finanțelor Publice Vaslui 
Direcția Generală Regională a Finanțelor Publice Iași 
  
Subject matter of the main proceedings 
Appeal against the judgment of the Tribunalul Vaslui (Regional Court, Vaslui, 
Romania) dismissing as unfounded the appeal lodged by Elite Games SRL (‘the 
applicant’) against the decision of the tax authorities to reject the complaint 
lodged against a decision to refund a sum of money representing the difference 
between the value added tax levied by applying the reduced rate of 5% and the 
value added tax that should have been levied by applying the standard rate of 
19%. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, the referring court is requesting an 
interpretation of the concept of ‘admission to amusement parks’ under point 7 of 
Annex III to Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax, read in conjunction with the provisions of 
Article 98 of that directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-576/23 
 
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Question referred for a preliminary ruling 
Does the act of making available, to persons, amusement machines for individual 
or collective use placed in a demarcated area within shopping areas or large 
shopping centres and operated using tokens or, where appropriate, in return for 
payment to the owners of the machines in exchange for access to any of those 
machines, fall within the concept of ‘admission to amusement parks’ under 
point 7 of Annex III to Council Directive 2006/112/EC of 28 November 2006 on 
the common system of value added tax, read in conjunction with Article 98 of that 
directive? 
Provisions of European Union law and case-law of the Court of Justice relied 
on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘Directive 2006/112’): Article 98 and Annex III(7) 
Judgment of 23 October 2003, Commission v Germany (C-109/02, 
EU:C:2003:586) 
Judgment of 18 March 2010, Erotic Center (C-3/09, EU:C:2010:149) 
Judgment of 10 November 2016, Baštová (C-432/15, EU:C:2016:855) 
Judgment of 18 January 2018, Stadion Amsterdam (C-463/16, EU:C:2018:22) 
Judgment of 9 September 2021, Phantasialand (C-406/20, EU:C:2021:720) 
Provisions of national law relied on 
1) Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the 
Tax Code; ‘the Tax Code’) – Article 291: 
– under paragraph (1), the standard rate of value added tax (VAT) applicable to 
the taxable amount for taxed transactions is 19%; 
– under paragraph (3)(b), the reduced rate of 5% applies, inter alia, to services 
involved in providing access to castles, museums, historic house museums, 
historical, architectural and archaeological monuments, zoos and botanical 
gardens, fairgrounds, amusement parks and theme parks with activities falling 
under CAEN codes 9321 and 9329, according to the Clasificarea activităților 
din economia națională (National Classification of Economic Activities; 
‘CAEN’), fairs, exhibitions and cultural events, sporting events, and cinema. 
2) Ordinul nr. 337/2007 al președintelui Institutului Național de Statistică 
privind actualizarea Clasificării activităților din economia națională – CAEN 
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(Decree No 337/2007 of the President of the National Institute of Statistics 
updating the National Classification of Economic Activities – CAEN): 
– CAEN code 9321 covers the activities of fairgrounds and amusement parks. 
This includes the operation of a range of attractions such as motor vehicle 
races, water-based excursions, games, exhibitions, themed displays and picnic 
areas; 
– CAEN code 9329 covers recreational and amusement activities (excluding 
fairgrounds and amusement parks) not classified elsewhere: theme park 
activities (without accommodation), management of recreational transport 
services such as marinas, management of ski slopes; rental of equipment for 
recreational activities, as an integral part of recreational facilities, fairs and 
exhibitions of a recreational nature; bathing activities, including rental of beach 
huts, changing rooms and chairs; and operation of dance floors. This category 
also includes the activities of producers and organisers of recreational or live 
entertainment events, other than artistic or sporting events, with or without 
services. 
3) Hotărârea Guvernului nr. 435/2010 privind regimul de introducere pe piață 
și de exploatare a echipamentelor pentru agrement (Government Decision 
No 435/2010 on rules governing the placing on the market and management of 
recreational equipment; ‘Government Decision No 435/2010’) – Article 2(b), (c) 
and (h): 
– playground equipment is recreational equipment, operated solely by human 
weight or physical force, intended to be used primarily by children, in a 
temporary or permanent play area [point (b)]; 
– a play area is a demarcated area equipped for children’s play, in which at least 
one piece of playground equipment is installed [point (c)]; 
– an amusement park is a demarcated area equipped for recreational purposes, in 
which at least one item of amusement park equipment is installed, either 
temporarily or permanently [point h)]. 
Relevant national case-law 
1) Judgment No 529 of 3 October 2022 of the Curtea de Apel Brașov (Court of 
Appeal, Brasov, Romania), which held in essence that: 
– allowing access to amusement and theme parks, as referred to in 
Article 291(3)(b) of the Tax Code, should not be confused with a recreational 
activity carried out using gaming machines, which may also be undertaken in 
places other than amusement and theme parks; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-576/23 
 
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– it appears from the list provided in Article 291(3)(b) of the Tax Code that this 
provision is intended to allow access to amusement parks and theme parks 
organised as a single entity and not to allow individual access to each item of 
equipment in such parks; 
– it follows from the wording of Article 291(3)(b) of the Tax Code that the 
reduced VAT rate of 5% is to be applied if two cumulative conditions are met, 
namely the existence of services providing access to amusement or theme parks 
and the performance in such parks of activities falling under CAEN codes 9321 
and 9329; 
– given that the revenue from the sale of tokens for electronic amusement 
machines does not constitute a charge for access, but rather a fee for a game 
paid by a person, and that the activity is not carried out in an amusement or 
theme park, the conditions for applying the reduced VAT rate are not met; 
– the placing of amusement machines in a shopping centre and the charging of a 
fee for each machine and game played there by a person does not constitute a 
theme park, since this presupposes the existence of several attractions in the 
same place, with a single fee being charged for access to all such attractions. 
2) Judgment No 87 of 7 February 2013 of the Curtea de Apel Iași (Court of 
Appeal, Iași, Romania), which held in essence that: 
– the exercise by a company of the same type of activity both in a park and in 
large shopping centres, where the object of that company also includes 
activities classified under CAEN codes 9321 and 9329, meets the prerequisite 
for application of Article 291(3)(b) of the Tax Code; 
– the differentiated application of this provision by the tax authorities only in 
relation to the amounts obtained from activities carried out in parks is 
erroneous, since what matters is the existence of a demarcated area set aside for 
recreational purposes, as the activity can be carried out both in a park and in 
large shopping centres; 
– with regard to the purchase of tokens, which does not constitute payment for an 
admission ticket, but rather merely payment for access to an individual 
amusement machine, the method of payment for the admission ticket is 
irrelevant, since the amusement park is the area in which at least one gaming 
machine is installed, and therefore acceptance of that definition also implies 
that access to an individual machine of that type constitutes access to an 
amusement park. 
3) Judgment No 325 of 17 May 2023 of the Curtea de Apel Iași (Court of 
Appeal, Iași, Romania), which held in essence that: 
– according to the judgment of the Court of Justice of 9 September 2021, 
Phantasialand (C406/20, EU:C:2021:720, paragraphs 28 to 32), the concept of 
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an amusement park in Directive 2006/112 denotes a landscaped site containing 
various facilities for recreation and amusement and the reduced VAT rate 
applies to income from the provision of services consisting of access 
(admission fees) to such parks; 
– according to the legal provisions, for the purposes of applying the reduced 
VAT rate, it is not sufficient for the activity carried out to fall under CAEN 
codes 9321 and 9329, but it is necessary for the income obtained to be 
generated through the provision of services consisting in providing access to 
amusement and theme parks; 
– the space rented in a large shopping centre does not constitute an amusement 
park according to the interpretation given to that concept by the Court of 
Justice, and the activities of making available and giving access to approved 
equipment by means of the purchase of tokens for a fixed amount from existing 
machines are activities carried out in enclosed spaces, which are not and cannot 
be likened to amusement or theme parks, and the purchase of a token does not 
therefore constitute an admission ticket, since its purchase allows the use of a 
single piece of equipment situated in a space that does not constitute an 
amusement park; 
– the definitions provided in Government Decision No 435/2010 for playground 
[Article 2(c)] and amusement park [Article 2(h)] cannot be considered for the 
purpose of interpreting and applying the provisions of Article 291(3)(b) of the 
Tax Code. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Following a tax audit carried out between 17 March and 15 June 2020, the tax 
authorities issued a notice of additional assessment ordering the applicant to repay 
the amount of RON 155 623, by way of VAT balance, of which RON 136 556 
corresponds to the difference between the 5% VAT rate levied on income from 
amusement and recreational games, applied by the applicant, and the 19% VAT 
rate on the same income, established by the tax authorities following the audit. 
2 The applicant lodged a complaint against this notice of additional assessment, 
which was rejected by the tax authorities, who held that the access to recreational 
gaming equipment provided by the company did not fall within the category of 
services providing access to amusement parks, which is an essential condition for 
the income from such services to be subject to the reduced VAT rate of 5% laid 
down in Article 291(3)(b) of the Tax Code. 
3 The applicant brought an appeal before the Tribunalul Vaslui (Regional Court, 
Vaslui, Romania), requesting that the decision rejecting the complaint be set aside 
and the notice of additional assessment in the amount of RON 136 556 be set 
aside in part. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-576/23 
 
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4 In its judgment of 12 January 2023, the Vaslui Regional Court dismissed the 
action, stating that the applicant’s income did not derive from the activity of 
providing access to theme parks, but rather from the sale of tokens used to operate 
the gaming machines it provides in various locations. The Regional Court held 
that the locations in which the gaming machines in question are found cannot be 
regarded as theme parks and that the purchase of tokens does not constitute an 
admission ticket for those locations, but rather the purchase of the right to play on 
those gaming machines. Even if, according to a broad interpretation, the purchase 
of a token were to constitute an admission ticket, this would not grant access to a 
theme park, but rather would only grant access to a single piece of equipment, 
located in isolation in a space that is not a theme park. Indeed, the person using 
the token is not in a theme or amusement park, at the entrance of which he or she 
is required to pay an admission fee. 
5 As regards the question as to whether the applicant’s activity falls within the 
scope of the reduced VAT rate for income from services providing access to 
amusement and theme parks, when the activities fall under CAEN codes 9321 and 
9329, the Regional Court noted that, although the applicant also carried out 
activities falling under CAEN codes 9321 and 9329, the condition that the 
services provided relate to authorisation to access theme parks was not met in this 
case. 
6 The applicant lodged an appeal, asking the referring court to set aside the 
judgment of the Regional Court of Vaslui. 
The essential arguments of the parties in the main proceedings 
7 The applicant claims that it was unlawfully charged the difference between the 
VAT rate of 5% and the VAT rate of 19% because the tax authorities 
misinterpreted the provisions of Article 291(3)(b) of the Tax Code. It argues that it 
carries out entertainment and recreational activities falling under CAEN code 
9329 in rented premises, set up and operated under the generic name of ‘Kids 
Land & Playground’, within large shopping centres in Romania, intended for 
leisure and recreational activities for children. To this end, the applicant has 
purchased approved and certified technical equipment from the largest 
manufacturers in the sector in Europe and the United States of America, with the 
original name of ‘amusement machines’, which are installed in all amusement 
parks in Romania. 
8 The applicant states that, in large shopping centres in Romania, the distribution of 
the areas offered for rent to economic operators is carefully chosen by the 
management of the shopping centre, in the sense that, depending on the object of 
the commercial activity, economic operators are distributed over several areas, 
namely the ‘food-court’ area, the ‘large retail’ area, the ‘hotel, restaurant and 
catering’ area, the ‘beauty products’ area and the ‘Kids Land & Playground’ area, 
with this last area being accessible only to economic operators carrying out 
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specific activities linked to children’s leisure and entertainment using equipment 
of the type supplied by the applicant. 
9 According to the applicant, access to the play areas is by means of the purchase of 
tokens for a fixed amount of RON 2.50 per token, an amount that is displayed in a 
visible location, from the vending machines in those areas and, on payment of the 
token, children have unrestricted access to any amusement equipment in those 
areas, under the supervision of the applicant’s employees. The applicant therefore 
submits that, because access to the play area is chargeable, the revenue obtained 
from the provision of such services is similar to the revenue from the sale of 
admission tickets to an amusement park proper. 
10 For their part, the tax authorities assert that the concept of ‘park’, as referred to in 
Article 291(3)(b) of the Tax Code, consists of a large area of land, for public use, 
with landscaped areas, roads and pathways and various buildings, which is set up 
for leisure, relaxation and entertainment, and in some cases for cultural events, a 
space with naturally growing or planted vegetation and roads and pathways, often 
with lakes and ponds, which serves as a place for strolling and relaxing, a large 
public garden or a planted garden with trees, flowers, etc. around a large property, 
laid out with avenues, lawns, etc. The vegetation may be combined with water 
features, reliefs (terraces, waterfalls, caves, etc.), statues, kiosks and pavilions. 
11 After noting that under Article 291(3)(b) of the Tax Code, the reduced VAT rate 
applies to access to amusement parks, as defined in Article 2(h) of Government 
Decision No 435/2010, and theme parks, the tax authorities assert that, for the 
purposes of applying the reduced VAT rate, it is not sufficient for the activity 
carried out to fall under CAEN code 9329, but it is necessary for this activity to be 
carried out in an amusement or theme park. Yet, although the activities carried out 
by the applicant fall under CAEN code 9329, the place where those activities are 
carried out cannot be considered an amusement or theme park. Moreover, the fees 
charged by the applicant are levied per hour of play or per game and do not allow 
access, in the common sense of the term, to amusement and theme parks. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court, as the court of last instance, considers that the outcome of the 
applicant’s appeal depends solely on the legal classification of the nature of the 
service that it provides to persons who use the equipment operated by the 
applicant in shopping centres, in demarcated areas, through the purchase of a 
token or through payment of a fee for each machine, and thus on whether the 
service provided consists in allowing access to an amusement park or a theme 
park. 
13 In the light of the case-law of the Court of Justice in Baštová and Phantasialand in 
relation to the concepts of ‘amusement parks’ and ‘fairs’, the referring court 
maintains, however, that the Court’s analysis in those judgments concerned only 
the determination of the notion of amusement park as opposed to that of fair. The 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-576/23 
 
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problem of interpretation identified in the present case is different and consists in 
establishing whether, for the purposes of classifying the activity as an activity 
consisting in providing access to an amusement park, it is relevant that persons 
wishing to use amusement machines, which can be used individually or in groups 
and are placed in a demarcated area within commercial premises or large shopping 
centres, pay a fee for each machine, receiving in exchange a token that they can 
use only once. 
14 In other words, the question that arises is whether an amusement park, as defined 
by the case-law of the Court of Justice, also presupposes the payment of a single 
admission ticket or whether there is also the possibility of paying separate tickets 
(token/ticket) for the single use only of a machine or facility, provided that the 
activity carried out by the amusement service providers is of a lasting nature and 
is carried out in a prepared area comprising a range of facilities intended for 
relaxation and amusement. 
15 To resolve this question, it is necessary, as a preliminary step, to establish the 
legal nature of the activity thus performed by these leisure service providers. The 
referring court points out in that context that the argument put forward by the tax 
authorities in order to reject the applicant’s request was that the premises in which 
the machines made available by the company are located cannot be regarded as 
theme parks and that the purchase of tokens does not constitute an admission 
ticket for that area, but rather the purchase of the right to play on a machine. 
16 The referring court observes that the answer to the question raised cannot be 
inferred clearly from the case-law – albeit helpful – stemming from the Erotic 
Center judgment, in which the Court linked classification as admission to 
recreational events – which is similar to admission to amusement parks, within the 
meaning of point 7 of Annex III to Directive 2006/112 – to the collective nature of 
the cultural and recreational service. In fact, since the tax authorities classify many 
installations or equipment items located even in amusement parks as intended for 
individual use and not for collective use, it is necessary to determine, from the 
point of view of the condition of the collective nature of the entertainment service, 
whether in the present case it is a ticket for access to the entire park or a ticket 
paid for the use of each machine. 
17 Having regard also to the principle of fiscal neutrality developed by the case-law 
of the Court of Justice, which precludes similar services that are in competition 
with each other from being treated differently from the point of view of the 
applicable rate of VAT, the referring court considers that the interpretation of the 
relevant provisions of European Union law is not self-evident, since those 
provisions do not define ‘admission to amusement parks’ and no distinction is 
made on the basis of the system of payment applicable to admission: admission 
ticket to the whole park or payment for each piece of equipment or installation.