Opinion of the Advocate General — ECLI:EU:C:1997:167
Date: 1997-03-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value
added tax — Sixth Directive — Scope — Unlawful operation of games of chance — Included
(Council Directive 77/388, Art. 2)
2. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of value
added tax — Exemptions provided for by the Sixth Directive — Exemption for games of
chance — Power of the Member States to lay down the conditions and limitations of the
exemption — Limits — Exemption from tax solely for lawful games of chance — Not permis­
sible
(Council Directive 77/388, Art. 13(B)(f))
I - 3369
SUMMARY — CASE C-283/95
1. While imports or supplies of products
which, because of their special character­
istics, may not be marketed or incorpo­
rated into economic channels, such as
narcotic drugs or counterfeit currency,
are wholly alien to the provisions of the
Sixth Directive 77/388 on the harmonisa­
tion of the laws of the Member States
relating to turnover taxes and do not give
rise to any value added tax debt, by con­
trast, outside those cases where all com­
petition between a lawful economic sec­
tor and an unlawful sector is ruled out,
the principle of fiscal neutrality precludes
a generalised distinction from being
drawn in the levying of value added tax
between unlawful and lawful transactions.
Those considerations relating to the
import or supply of goods apply equally
to the supply of services such as the
organisation of games of chance. Those
games, and roulette in particular, are law­
fully played in a number of Member
States. Since unlawful transactions in the
operation of a game of chance are in com­
petition with lawful activities, the prin­
ciple of fiscal neutrality precludes their
being treated differently as regards value
added tax. The unlawful operation of a
game of chance, in the event roulette,
therefore falls within the scope of the
Sixth Directive.
2. Article 13(B)(f) of the Sixth Directive
77/388 on the harmonisation of the laws
of the Member States relating to turnover
taxes must be interpreted as meaning that
a Member State may not impose value
added tax on the unlawful operation of a
game of chance when the corresponding
activity carried on by a licensed public
casino is exempted.
The exemptions provided for by
Article 13(B) of the directive are to be
applied in accordance with the principle
of fiscal neutrality inherent in the com­
mon system of value added tax. That
requirement also applies when the Mem­
ber States exercise their power under
Article 13(B)(f) to lay down the condi­
tions and limitations of the exemption.
The principle of fiscal neutrality pre­
cludes a generalised distinction from
being drawn in the levying of value added
tax between unlawful and lawful transac­
tions. It follows that Member States can­
not reserve the exemption solely to lawful
games of chance.
I - 3370