Opinion of the Advocate General — ECLI:EU:C:2025:731
Date: 2025-09-25
Language of the case: German

Translation C-409/24 – 1 
Case C-409/24 
Request for a preliminary ruling 
Date lodged: 
12 June 2024 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
10 January 2024 
Applicant and appellant on a point of law: 
J-GmbH 
Defendant and respondent on a point of law: 
Finanzamt K 
  
BUNDESFINANZHOF 
ORDER 
In the case of 
J-GmbH 
Applicant and appellant on a point of law 
[…] 
Finanzamt K 
Defendant and respondent on a point of law 
concerning turnover tax for 2018 and prepayment of turnover tax for January to 
May 2019 
the XI Chamber 
ordered on 10 January 2024: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 10. 1. 2024 – CASE C-409/24 
 
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Operative part of the judgment 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: 
Are Article 24(1) and Article 98(1) and (2) of Directive 2006/112/EC, read in 
conjunction with Category 12 of Annex III thereto, to be interpreted as meaning 
that they preclude a national provision such as the second sentence of 
Paragraph 12(2)(11) of the Umsatzsteuergesetz (Law on Turnover Tax; ‘the 
UStG’), under which a Member State may exclude, by means of a national 
requirement to break down transactions for tax purposes, supplies from the 
reduced tax rate provided for by the Member State for the letting of living and 
sleeping spaces offered by a trader for the short-term provision of accommodation 
to strangers, which supplies do not directly serve the letting purpose but are 
remunerated by the consideration for such letting, even if those supplies are 
dependent supplies ancillary to the short-term provision of accommodation to 
strangers, such as (only) the provision of parking spaces as in this case? 
II. The proceedings are stayed pending delivery of the decision by the Court of 
Justice of the European Union. 
Grounds 
A. 
1 The applicant and appellant on a point of law (‘the applicant’) operated a hotel 
and restaurant with … rooms. With their accommodation, hotel guests also 
received breakfast, which was charged at EUR 4.50 if a guest opted for room 
only. The hotel and restaurant had its own car park, which could be used free of 
charge. 
2 Since June 2018, the applicant had been applying the reduced tax rate of 7% to 
accommodation, breakfast and parking as a single supply. The applicant declared 
supplies to this effect in its advance turnover tax returns for the months of June 
2018 to May 2019. 
3 Following two tax audits carried out at the applicant’s premises for the months of 
April 2018 to June 2018 and July 2018 to May 2019, the auditor took the view 
that the breakfast and parking supplies should be taxed at the standard rate of 
19%. […] 
4 The defendant and respondent on a point of law (Finanzamt; ‘the Tax Office’) 
followed the findings of the special turnover tax audit and, by assessment notices 
of 12 December 2018 and 18 October 2019, determined higher turnover tax 
prepayments for the months of June 2018 to May 2019. The applicant appealed 
against these notices. 
5 […] 
J-GMBH 
 
3 
6 The Tax Office rejected the appeals as unfounded (appeal decision of 26 February 
2020). 
7 The Sächsisches Finanzgericht (Saxony Finance Court) dismissed the action by 
means of its judgment of 23 September 2020 – 2 K 352/20, which was published 
in Entscheidungen der Finanzgerichte 2021, 244 (Decisions of the Finance 
Courts; ‘EFG’). It ruled that the provision of breakfast and parking were not 
supplies ancillary to the accommodation, but independent principal supplies. 
However, even if these supplies had been dependent supplies ancillary to the 
accommodation supplies to be taxed at the reduced rate, the Tax Office correctly 
broke down the transactions for tax purposes. Breakfast and parking were supplies 
which, within the meaning of the second sentence of Paragraph 12(2)(11) UStG, 
did not directly serve the letting purpose and were therefore excluded from the 
reduced tax rate provided for in the first sentence of Paragraph 12(2)(11) UStG. 
[…] 
8 In its appeal on a point of law, the applicant submits that substantive law has been 
breached, and claims, in essence, that both the breakfast and the provision of 
parking each constitute dependent supplies ancillary to the accommodation 
supply. […] 
9 The requirement to break down transactions for tax purposes (‘breakdown 
requirement’) contained in the second sentence of Paragraph 12(2)(11) UStG is 
contrary to EU law. By means of its judgment in Stadion Amsterdam of 
18 January 2018 – C-463/16, EU:C:2018:22, the Court of Justice of the European 
Union (‘the Court’) prohibited the artificial breakdown into principal and ancillary 
supplies and taxation at different rates. 
10 The applicant therefore seeks an order setting aside the preliminary decision and 
amending the turnover tax assessment notice for 2018 of 6 February 2020 and the 
notices on turnover tax prepayments for January 2019 to May 2019, all as per the 
appeal decision of 26 February 2020, such that the breakfast and parking supplies 
are taxed at the rate of 7%. 
11 The Tax Office requests that the appeal on a point of law be dismissed as 
unfounded. 
12 The Tax Office defends the contested preliminary decision, maintaining in 
particular that the breakfast at issue in the present case was also an independent 
supply which guests could opt out of and which was shown in invoices 
accordingly. Neither the breakfast nor the provision of parking directly served the 
accommodation purpose. The Tax Office is claiming that the Court’s judgment in 
Stadion Amsterdam of 18 January 2018 – C-463/16, EU:C:2018:22 did not arise 
in relation to a national breakdown requirement. In its judgement in Commission v 
France of 6 May 2010 – C-94/09, EU:C:2010:253, the Court expressly 
acknowledged the permissibility of a national breakdown requirement, which 
takes precedence over the principle of single supply. 
REQUEST FOR A PRELIMINARY RULING OF 10. 1. 2024 – CASE C-409/24 
 
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13 […][Proceedings stayed pending delivery of the decision by the Court in 
Case C-516/21] 
14 The applicant believes its legal view is confirmed by the Court’s judgment in 
Finanzamt X of 4 May 2023 – C-516/21, EU:C:2023:372, where the Court rejects 
artificial splitting of single supplies. 
15 The Tax Office counters this by claiming that the Court’s judgment in Finanzamt 
X of 4 May 2023 – C-516/21, EU:C:2023:372 is irrelevant to the matter at issue. 
Both the breakfast and the provision of parking are independent supplies which 
are not ancillary to the short-term provision of accommodation of strangers. Even 
if those supplies were to be regarded as ancillary to the accommodation supply, 
the principle that a dependent, ancillary supply shares the tax treatment of the 
principal supply, would be superseded by the national breakdown requirement. 
The Court’s decision in Finanzamt X of 4 May 2023 – C-516/21, EU:C:2023:372 
does not mean that the second sentence of Paragraph 12(2)(11) UStG is contrary 
to EU law. 
B. 
16 The Chamber has stayed proceedings and referred the question set out in the 
operative part to the Court for a preliminary ruling pursuant to Article 267(3) of 
the Treaty on the Functioning of the European Union (TFEU). 
17 I. Relevant legislation 
18 1. European Union law 
19 Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (VAT Directive) in the version applicable to the dispute in the 
main proceedings 
Article 2 
1. The following transactions shall be subject to VAT: 
(c) The supply of services for consideration within the territory of a Member State 
by a taxable person acting as such; 
Article 24 
1. ‘Supply of services’ shall mean any transaction which does not constitute a 
supply of goods. 
Article 98 
2. Member States may apply either one or two reduced rates. 
J-GMBH 
 
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3. The reduced rates shall only apply to the supply of goods and services in the 
categories set out in Annex III. The reduced rates shall not apply to electronically 
supplied services. 
4. When applying the reduced rates provided for in paragraph 1 to categories of 
goods, Member States may use the Combined Nomenclature to establish the 
precise coverage of the category concerned. 
Annex III: 
List of supplies of goods and services to which the reduced rates referred to in 
Article 98 may be applied 
12. accommodation provided in hotels and similar establishments, including the 
provision of holiday accommodation and the letting of places on camping or 
caravan sites; 
20 2. National legislation 
21 Umsatzsteuergesetz (Law on Turnover Tax; ‘the UStG’) of 21 February 2005 
(BGBl. I 2005, 386), in the version applicable to the dispute in the main 
proceedings 
Paragraph 1 (1)(1) 
(1) The following transactions shall be subject to turnover tax: 
1. the supply of goods or services effected for consideration within the national 
territory by a trader in the course of his or her business. … 
Paragraph 12  
(1) The rate applicable to taxable transactions shall be 19% of the basis of 
assessment … 
(2) The rate of tax shall be reduced to 7% in respect of the following 
transactions: 
11. the letting of living and sleeping spaces offered by a trader for the short-term 
provision of accommodation to strangers, and the short-term letting of camping 
places. The first sentence shall not apply to supplies not directly serving the letting 
purpose, even if these supplies are remunerated by the consideration for such 
letting;… 
22 II. Assessment of preliminary questions (single supply) 
23 […] 
24 […] 
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25 […] 
26 […] 
27 […] 
28 […] 
29 […] 
30 […] 
31 […] 
32 […][general principles concerning single supply] 
33 (d) In the context of the cooperation established by Article 267 TFEU, it is for the 
national courts to determine whether, in the circumstances of the particular case, 
the supply concerned constitutes a single supply and to make all definitive 
findings of fact in that regard (see Court judgments in Frenetikexito of 4 March 
2021 – C-581/19, EU:C:2021:167, paragraph 36; Dyrektor Krajowej lnformacji 
Skarbowej of 20 April 2023 – C-282/22, EU:C:2023:312, paragraph 31; also see 
Court judgment in Finanzamt X of 4 May 2023 – C-516/21, EU:C:2023:372, 
paragraph 38). 
34 2. In light of this and given the circumstances of the dispute in the main 
proceedings, it is necessary to differentiate the preliminary question which the 
Chamber must assess under Article 267 TFEU, namely whether dependent 
ancillary supplies are present which may also share the treatment of the principal 
supply as regards the applicable rate of tax. 
35 (a) The Finance Court […] correctly held that breakfast, which guests could opt 
out of in exchange for an equivalent value of EUR 4.50, constitutes an 
independent supply (see, on the nature of breakfast supplies as supplies ancillary 
to accommodation supplies, also FG Berlin-Brandenburg (Berlin-Brandenburg 
Finance Court), judgment of 28 November 2018 – 7 K 7314/16, EFG 2019, 294, 
paragraph 51). 
36 As this independent supply is not covered by the first sentence of 
Paragraph 12(2)(11) UStG (and the current version of Paragraph 12(2)(15) UStG 
did not apply at the time of the dispute), the standard VAT rate must be applied to 
the breakfast in the case at issue, irrespective of the answer to the question 
referred to the Court for a preliminary ruling in this procedure. In this respect, 
there is no need for recourse to the breakdown requirement laid down in the 
second sentence of Paragraph 12(2)(11) UStG. 
37 (b) In contrast, the provision of parking spaces to hotel guests in the case at issue 
is a supply ancillary to the accommodation supply, as guests could neither book it 
J-GMBH 
 
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as an additional service nor opt out of it. In the case at issue, such provision is 
inextricably linked to the principal supply (accommodation) and has no 
independent purpose for the hotel guest. Contrary to the view of the Tax Office 
and the Finance Court, this argument is supported, in particular, by the fact that 
the applicant makes no distinction on the basis of the way in which the guest has 
arrived at the hotel. In addition, the applicant maintains that there are sufficient 
public parking spaces available free of charge in the immediate vicinity of the 
hotel, without it being apparent that these parking spaces would have been less 
suitable for parking vehicles from the hotel guests’ point of view than the 
applicant’s car park (see, to that effect, also the Court’s judgment in Gemeinde A 
of 13 July 2023 – C-344/22, EU:C:2023:580, paragraph 39). 
38 … 
39 … 
40 … 
41 […][Federal Finance Court (BFH) is not bound by the differing judgment of the 
Finance Court] 
42 III. Referral to the Court with regard to the national breakdown requirement 
43 … 
44 1. The question referred for a preliminary ruling 
45 (a) Pursuant to Paragraph 12(1) UStG, the rate applicable to taxable transactions 
shall be 19% of the basis of assessment (‘standard rate’). Pursuant to the first 
sentence of Paragraph 12(2)(11) UStG, the rate is reduced to 7% for the letting of 
living and sleeping spaces offered by a trader for the short-term provision of 
accommodation to strangers and the short-term letting of camping places. 
Pursuant to the second sentence of Paragraph 12(2)(11) UStG, this reduced rate 
does not apply to supplies not directly serving the letting purpose, even if these 
supplies are remunerated by the consideration for such letting. 
46 (aa) […] As stated in the explanatory memorandum to the draft Act (Bundestag 
document 17/15, p. 20), the legislator has made use of the option provided for in 
Article 98(1) and (2) (since 6 April 2022: Article 98(1)(1) to (3)), read in 
conjunction with Category 12 of Annex III to the VAT Directive. […]. 
47 […] 
48 (cc) The referring Chamber has deduced from this that the second sentence of 
Paragraph 12(2)(11) UStG contains a national breakdown requirement for 
supplies; the principle that the (dependent) ancillary supply shares the tax 
treatment of the principal supply is superseded by this breakdown requirement 
(see BFH judgments of 24 April 2013 – XI R 3/11, BFHE 242, 410, BStBl II 
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2014, 86; of 24 July 2013 – XI R 14/11, BFHE 242, 421, BStBl II 2014, 210; see 
also BFH orders of 3 August 2017 – V R 60/16, BFHE 258, 558, BStBl II 2018, 
37, paragraph 41; of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, BStBl II 
2023, 198, paragraph 28). The reduced tax rate provided for in the first sentence 
of Paragraph 12(2)(11) UStG is therefore limited to pure letting or 
accommodation supplies. 
49 … 
50 [general list of supplies (not) covered by the breakdown requirement] 
51 […][brief comparison with the legal situation in Austria] 
52 (b) According to the case-law of the Chamber, the provision of parking spaces 
which must be assessed in the main proceedings constitutes a supply that is 
covered by the breakdown requirement laid down in the second sentence of 
Paragraph 12(2)(11) UStG and is therefore excluded from the reduced tax rate 
(see BFH order of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, BStBl II 
2023, 198, paragraph 27). 
53 (c) The breakdown requirement laid down in the second sentence of 
Paragraph 12(2)(11) UStG for supplies not directly serving the letting purpose has 
thus far been held by the referring Chamber to be consistent with EU law (see 
BFH judgment of 24 April 2013 – XI R 3/11, BFHE 242, 410, BStBl II 2014, 86, 
paragraph 51, with further references). It maintains that position. 
54 The Chamber was initially convinced, beyond any possible doubt, that the 
breakdown requirement was compatible with EU law because, under Article 98(1) 
and (2) of the VAT Directive, Member States may apply a reduced rate of VAT to 
(only) concrete and specific aspects of a category of supplies set out in Annex III 
to the VAT Directive, provided that they comply with the principle of fiscal 
neutrality inherent in the common system of VAT (see BFH judgment of 24 April 
2013 – XI R 3/11, BFHE 242, 410, BStBl. II 2014, 86, paragraph 52, with further 
references; BFH order of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, 
BStBl II 2023, 198, paragraph 30). In its case-law to date, the Court has held that 
the question of whether a transaction comprising several elements is to be 
regarded as a single supply cannot be considered as decisive for the exercise of the 
discretion left to the Member States by the VAT Directive as regards the 
application of the reduced rate of VAT (see Court judgments in Commission v 
France of 6 May 2010 – C-94/09, EU:C:2010:253, paragraph 33; Stadion 
Amsterdam of 18 January 2018 – C-463/16, EU:C:2018:22, paragraph 34). 
Therefore, in its judgment in Commission v France of 6 May 2010 – C-94/09, 
EU:C:2010:253, the Court did not need to examine whether the supply of services 
by undertakers must be regarded as a single transaction, but rather, in that context, 
it was necessary to examine whether the transportation of corpses by vehicles 
constituted a concrete and specific aspect of that category of supplies, as set out in 
Annex III, point 16, to the VAT Directive and, if so, to examine whether the 
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application of that rate of VAT is contrary to the principle of fiscal neutrality (see, 
to that effect, Court judgments in Commission v France, EU:C:2010:253, 
paragraph 34; Stadion Amsterdam of 18 January 2018 – C-463/16, EU:C:2018:22, 
paragraph 34). 
55 (d) However, the referring Chamber is of the opinion that, on the basis of the case-
law issued by the Court in the meantime, there is no longer an ‘acte clair’ for the 
purposes of Article 267 TFEU. 
56 (aa) In the opinion of the referring Chamber, the Court did not deviate from its 
judgment in Commission v France of 6 May 2010 – C-94/09, EU:C:2010:253 in 
either its judgment in Stadion Amsterdam of 18 January 2018 – C-463/16, 
EU:C:2018:22 or in its judgment in Finanzamt X of 4 May 2023 – C-516/21, 
EU:C:2023:372. In the opinion of the referring Chamber, selective application of 
the reduced tax rate is therefore still not ruled out, but rather is permissible, 
provided that it does not entail any risk of distortion of competition. 
57 If this interpretation is correct, the national legislator has, by means of the first 
sentence of Paragraph 12(2)(11) UStG, continued to make selective use of the 
authorisation laid down in Article 98(1) and (2), read in conjunction with 
Category 12 of Annex III to the VAT Directive, in accordance with EU law, by 
not subjecting all ‘accommodation provided in hotels and similar establishments’, 
including the ancillary supplies provided, to the reduced rate, but only those 
supplies directly serving the letting purpose. 
58 There is still no apparent breach of the principle of fiscal neutrality here. On the 
contrary, the breakdown requirement under the second sentence of 
Paragraph 12(2)(11) UStG even precludes distortions of competition (see also 
Berlin-Brandenburg Finance Court, judgment of 28 November 2018 – 7 K 
7314/16, EFG 2019, 294, paragraph 45). Such breakdown requirements serve to 
ensure equal treatment because they ensure, as in the case of Paragraph 12(2)(11) 
UStG, that a hotel cannot offer the same supplies (for example, breakfast, parking, 
spa) at a more favourable rate of tax than a trader (such as restaurateur, car park or 
sauna operator) in the immediate vicinity. The same supply is taxed at the same 
rate due to the breakdown requirement laid down in the second sentence of 
Paragraph 12(2)(11) UStG, even if it is only a supply that is ancillary to the 
provision of short-term accommodation to strangers. 
59 (bb) However, it is not beyond doubt in the sense of an ‘acte clair’ that this 
interpretation of the Court’s case-law by the Chamber is correct. In paragraph 33 
of its judgment in Stadion Amsterdam of 18 January 2018 – C-463/16, 
EU:C:2018:22, the Court states that a single supply composed of two distinct 
elements, one principal, the other ancillary, which, if supplied separately, would 
be subject to different rates of VAT, must be taxed solely at the rate of VAT 
applicable to that single supply, that rate being determined according to the 
principal element, even if the price of each element forming the full price paid by 
the consumer in order to be able to receive that supply can be identified (see also 
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BFH order of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, BStBl II 2023, 
198, paragraph 33). 
60 That wording could also be understood as meaning that tax rate differences of any 
kind are prohibited under EU law in the case of single supplies. From this 
perspective, the second sentence of Paragraph 12(2)(11) UStG could be contrary 
to EU law. The principle that the dependent ancillary supply must always share 
the tax treatment of the principal supply could supersede the breakdown 
requirement laid down in the second sentence of Paragraph 12(2)(11) (see 
Nieskens in Rau/Dürrwächter, Umsatzsteuergesetz, Paragraph 12(2)(11) 
paragraph 51; BFH order of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, 
BStBl II 2023, 198, paragraph 33). 
61 (cc) The Court’s wording is being interpreted differently in the Federal Republic 
of Germany. 
62 (1) Other finance courts, like those in the three main proceedings, have held that 
the breakdown requirement laid down in second sentence of Paragraph 12(2)(11) 
UStG complies with the requirements of EU law, even taking into account the 
Court’s judgment in Stadion Amsterdam of 18 January 2018 – C-463/16, 
EU:C:2018:22 (see Berlin-Brandenburg Finance Court, judgment of 28 November 
2018 – 7 K 7314/16, EFG 2019, 294, effective in law; FG Rheinland-Pfalz 
(Rhineland-Palatinate Finance Court), judgment of 24 September 2020 – 6 K 
2273/17, EFG 2020, 1887, appeal under XI R 12/23 (XI R 35/20) pending; FG 
Nürnberg (Nuremberg Finance Court), order of 18 December 2020 – 2 V 1159/20, 
EFG 2021, 422, overturned by BFH order of 7 March 2022 – XI B 2/21 (AdV), 
BFHE 275, 473, BStBl II 2023, 198). 
63 (2) Academic opinions are divided. Some academics maintain that precedence 
shall be given to the statutory breakdown requirement laid down in the second 
sentence of Paragraph 12(2)(11) UStG, including following the Court’s judgment 
in Stadion Amsterdam of 18 January 2018 – C-463/16, EU:C:2018:22, over the 
legal consequences resulting from the principle of single supply, because this 
returns to the general principle of regarding each individual supply separately 
(see, inter alia, Gieseler, Betriebs-Berater 2018, 734; Treiber, Deutsches 
Steuerrecht 2018, 1922; Korf, Zeitschrift für das gesamte Mehrwertsteuerrecht 
(MwStR) 2018, 266; same in MwStR 2022, 515 now vacillating; Wäger, 
Umsatzsteuer-Rundschau (UR) 2019, 41; Sterzinger, Umsatzsteuer direkt digital 
(UStDD) 6/2021, 4; Weber, Umsatzsteuer- und Verkehrsteuer-Recht (UVR) 2022, 
147, with further references on status of dispute; probably also Forster in Wäger, 
UStG, 2nd. Ed., Paragraph 12(2)(11) paragraph 48; Waza in 
Offerhaus/Söhn/Lange, Paragraph 12(2)(11) UStG paragraph 57; 
Birkenfeld/Wäger, Umsatzsteuer-Handbuch, Paragraph 12(2)(11) paragraph 68). 
However, some academics take the view that the reduced tax rate laid down in the 
first sentence of Paragraph 12(2)(11) UStG must also be applied to supplies 
ancillary to accommodation supplies in the hotel sector (see, inter alia, Möser, 
MwStR 2018, 505; Nieskens, UR 2018, 181; same in Rau/Dürrwächter, 
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Umsatzsteuergesetz, Paragraph 12(2)(11) paragraph 79; same in UR 2022, 463; 
Oldiges, Der Betrieb (DB) 2018, 541; same in DB 2020, 2096; von Streit, 
Umsatz-Steuerberater 2018, 106; Prätzler, juris PraxisReport Steuerrecht 6/2018 
note 1; Nacke, NWB 2018, 2314; Lippross, Umsatzsteuer, 24th Ed., p. 843; 
Janzen in Lippross/Seibel, Basiskommentar Steuerrecht, Paragraph 12(2)(11) 
UStG paragraph 17). 
64 (3) Since the Court’s judgment in Stadion Amsterdam of 18 January 2018 – 
C-463/16, EU:C:2018:22 was issued, the referring Chamber has therefore left 
open the question of compatibility with EU law (BFH judgment of 13 June 2018 – 
XI R 2/16, BFHE 262, 187, BStBl II 2018, 678, paragraph 24) and, due to serious 
doubts as to legality, has stayed enforcement in proceedings for interim legal 
protection (see BFH order of 7 March 2022 – XI B 2/21 (AdV), BFHE 275, 473, 
BStBl II 2023, 198; see, to that effect, also Korf, MwStR 2022, 515; Nacke, 
UStDD 2022, 10/2022, 21; Brill, Kölner Steuerdialog 2023, No 7, 23310; 
Masuch, NWB 2023, 1614; Nieskens, Umsatzsteuer-Rundschau (UR) 2022, 463; 
Huschens, UVR 2023, 218; Bunjes/Heidner, UStG, 22nd Ed., Paragraph 12 
paragraph 230; Klenk in Sölch/Ringleb, Umsatzsteuer, Paragraph 12 
paragraph 903). 
65 (dd) The doubts as to whether the aforementioned case-law in relation to national 
breakdown requirements can be maintained were not dispelled by the Court’s 
judgment in Finanzamt X of 4 May 2023 – C-516/21, EU:C:2023:372. The 
statements of the Court (judgment in Finanzamt X of 4 May 2023 – C-516/21, 
EU:C:2023:372, paragraph 38) and of the BFH (see judgment of 17 August 
2023 – V R 7/23 (V R 22/20), BFHE 282, 52, paragraph 18) relate primarily to 
point (c) of the first sentence of Article 135(2) of the VAT Directive and the 
second sentence of Paragraph 4(12) UStG. At the same time, the BFH expressly 
maintained in its subsequent judgement that the second sentence of 
Paragraph 12(2)(11) UStG contains a statutory breakdown requirement (see BFH 
judgment of 17 August 2023 – V R 7/23 (V R 22/20), BFHE 282, 52, 
paragraph 19). Its admissibility under EU law must now be clarified by the Court 
on account of these existing doubts. 
66 2. Opinion of the referring Chamber on the question referred for a preliminary 
ruling 
67 The referring Chamber is of the opinion that the question referred for a 
preliminary ruling should be answered in the negative. 
68 (a) Particularly in light of the Court’s judgment in The Escape Center of 
22 September 2022 – C-330/21, EU:C:2022:719, the Chamber continues to be of 
the opinion that the second sentence of Paragraph 12(2)(11) UStG is compatible 
with EU law, including in the case of single supply. 
69 (aa) It is true that the Court held in that judgment, in relation to permission to use 
sporting facilities, that Article 98(2) of the VAT Directive, read in conjunction 
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with Category 14 of Annex III to the VAT Directive, must be interpreted as 
meaning that a supply of services consisting of the permission to use sporting 
facilities in a fitness centre and the supply of individual or group coaching may be 
subject to a reduced rate of VAT where that coaching is linked to the use of those 
facilities and is necessary for the practise of sports and physical education or 
where that coaching is ancillary to the permission to use those facilities or to their 
actual use, and is therefore a single supply (see Court judgment in The Escape 
Center of 22 September 2022 – C-330/21, EU:C:2022:719, paragraph 41). 
70 (bb) However, in paragraph 34 of its judgment, the Court emphasizes, making 
reference to the Court’s judgments in Commission v France of 6 May 2010 – 
C-94/09, EU:C:2010:253, paragraph 28 and in Phantasialand of 9 September 
2021 – C-406/20, EU:C:2021:720, paragraph 25, that a Member State may limit 
the application of this reduced VAT rate to concrete and specific aspects of that 
category, provided that the principle of neutrality is observed. The referring 
Chamber understands this to mean that, even after the Court’s judgment in 
Stadion Amsterdam of 18 January 2018 – C-463/16, EU:C:2018:22, selective 
application of the reduced tax rate is permissible even in the case of single supply, 
provided that the principle of neutrality is observed. This is the case with the 
breakdown requirement laid down in the second sentence of Paragraph 12(2)(11) 
UStG. 
71 (b) The opinion of the referring Chamber that the second sentence of 
Paragraph 12(2)(11) UStG is also in line with EU law in the case of single supply 
is also supported by the Court’s judgment in Valentina Heights of 8 February 
2024 – C-733/22, EU:C:2024:126 which was issued in the meantime before the 
grounds for this order were set out. The Court confirmed that Member States are 
able selectively to apply the reduced VAT rate on the twofold condition that, 
firstly, only concrete and specific aspects of the category of supply at issue are 
isolated for the purposes of the application of the reduced rate and, secondly, that 
the principle of fiscal neutrality is observed (see Court judgment in Valentina 
Heights of 8 February 2024 – C-733/22, EU:C:2024:126, paragraph 44). Since the 
national legislator has observed this in the second sentence of Paragraph 12(2)(11) 
UStG, EU law does not preclude the breakdown requirement arising from that 
provision in the case of single supply. 
72 3. Relevance for the resolution of the dispute 
73 The question referred for a preliminary ruling is relevant to the resolution of the 
dispute. If the question referred for a preliminary ruling is answered in the 
negative, the applicant’s appeal on a point of law would have to be dismissed as 
unfounded. If the question referred for a preliminary ruling is answered in the 
affirmative, the preliminary decision would have to be set aside and the action 
upheld in part. The application of the standard rate to the provision of parking 
spaces would then have been incorrect. 
74 […] 
J-GMBH 
 
13 
75 […] 
76 […] 
77 […]