Opinion of the Advocate General — ECLI:EU:C:2020:122
Date: 2020-02-27
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Foodstuffs;Taxation;Consumer protection;Public health;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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:  
23 April 2019 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
19 April 2019 
Applicant:  
Staatssecretaris van Financiën 
Other party to the proceedings:  
X 
  
Subject of the action in the main proceedings 
The main proceedings concern additional assessments that the Inspecteur van de 
Belastingdienst (tax inspector; ‘the Inspector’) imposed on X (‘the party 
concerned’), because the Inspecteur took the view that the general VAT rate was 
applicable to certain products supplied by the party concerned. The party 
concerned disputed those assessments, on the basis that the lower VAT rate for 
foodstuffs it already paid on the products was applicable. 
Subject matter and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns the application of the 
reduced VAT rate to foodstuffs. In particular, it concerns the question of on the 
basis of which criteria can it be determined whether products can fall under the 
term ‘foodstuffs for human consumption’ or under the term ‘products normally 
used to supplement foodstuffs or as a substitute for foodstuffs’ within the meaning 
of the 2006 VAT Directive. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-331/19 
 
2  
Questions referred 
1. Must the term ‘foodstuffs for human consumption’ used in point 1 of Annex 
III to the 2006 VAT Directive be interpreted as covering, in accordance with 
Article 2 of Regulation (EC) No 178/2002 of the European Parliament and 
of the Council of 28 January 2002 laying down the general principles and 
requirements of food law, any substance or product, whether processed, 
partially processed or unprocessed, intended to be, or reasonably expected to 
be ingested by humans? 
If this question is answered in the negative, how must that term then be 
defined? 
2. If edible or potable products cannot be regarded as foodstuffs for human 
consumption, on the basis of which criteria must it then be assessed whether 
such products can be regarded as products normally used to supplement 
foodstuffs or as a substitute for foodstuffs? 
Provisions of EU law cited 
Articles 96, 97 and 98 of, and point 1 of Annex III to, to 2006 VAT Directive, and 
Article 2 of Regulation No 178/2002  
Provisions of national law cited 
Article 7 and Article 9(2)(a) and item a.1 of Table [I] of the Wet op de 
omzetbelasting 1968 (Law on turnover tax 1968; ‘the Wet’). 
Brief summary of the facts and the procedure in the main proceedings 
1 The party concerned is an operator which sells certain products as sexual 
stimulants. Those are capsules, drops, powders and sprays that are intended to be 
taken orally. Over periods in the years between 2009 and 2013, the interested 
party paid turnover tax on the supplies of those products on the basis of a return at 
the reduced VAT rate of six percent as referred to in Article 9(2)(a) of the Wet in 
conjunction with item a.1 of Table I of the Wet (Table I) because, in its view, the 
products are foodstuffs within the meaning of that table item. The Inspector, 
however, took the view that the products were not foodstuffs and were therefore 
not subject to the general VAT rate. For that reason, the Inspector imposed the 
additional tax assessments at issue. 
2 The Gerechtshof Den Haag (Court of Appeal, The Hague; ‘the Gerechtshof’) held 
on appeal that the products were foodstuffs within the meaning of item a.1 of 
Table I The Staatssecretaris van Financiën (State Secretary for Finance) lodged an 
appeal in cassation against that decision before the Hoge Raad.  
X 
 
3 
Principal arguments of the parties in the main proceedings 
3 In reasoning its decision, the Gerechtshof stated that the products in question 
ought to be taken orally and that they contained components specific to foodstuffs 
intended for human use. That the products are promoted and used as sexual 
stimulants does not, in the view of the Gerechtshof, preclude the application of the 
reduced rate. With that finding, the Gerechtshof took account of the fact that, 
according to the parliamentary explanatory notes on Table I, the legislator favours 
a broad interpretation of the concept of ‘foodstuff’. In the Gerechtshof's view, 
making a distinction according to the purpose for which products are consumed is 
not in keeping with that objective. Products which are not immediately 
reminiscent of a foodstuff, such as sweets (including chewing gum) and cakes, 
also fall within the scope of the reduced rate. 
4 The Staatssecretaris van Financiën argues that the Gerechtshof’s interpretation of 
item a.1 of Table I, in particular of the term ‘food and beverages normally 
intended for human consumption’ used there, is contrary to the wording and 
scheme of point 1 of Annex III to the 2006 VAT Directive. 
Brief summary of the reasons for the referral 
5 Pursuant to Article 9(2)(a) of the Wet, the tax amounts to six per cent for supplies 
of the goods listed in Table 1. Item a.1 of Table I reads:  
‘1. foodstuffs, in particular: 
(a) food and beverages normally intended for human consumption; 
(b) products clearly intended for use in the preparation of food and 
beverages as referred to under point (a) and that are wholly or partly 
contained therein; 
(c) products intended for use to supplement or as a substitute for food or 
beverages as referred to under (a), with the proviso that alcoholic 
drinks are not considered foodstuffs’. 
With those provisions, the Netherlands legislature made use of the possibility 
afforded to Member States by Article 98 of the 2006 VAT Directive to apply a 
reduced rate to those supplies of goods that belong to the categories listed in 
Annex III to that directive. In the Dutch language version of point 1 to Annex III, 
the following category of goods is set out:  
‘(1) Foodstuffs (including beverages but excluding alcoholic beverages) for 
human and animal consumption; live animals, seeds, plants and ingredients 
normally intended for use in the preparation of foodstuffs; products normally 
used to supplement foodstuffs or as a substitute for foodstuffs’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-331/19 
 
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The text and legislative history of item a.1 of Table I does not contain any 
indication that the legislator intended selectively to apply point 1 of Annex III to 
the 2006 VAT Directive, regarding goods suitable for human consumption, in the 
sense that the reduced VAT rate would apply only to certain goods that can be 
listed under point 1 of Annex III to the 2006 VAT Directive. That is why, in 
interpreting item a.1 of Table I, recourse must be had to the terms used in point 1 
of Annex III. In that regard, ‘foodstuffs for human consumption’ (‘foodstuffs’) 
can be equated with ‘food intended for human consumption’. 
6 The Court of Justice of the European Union (‘the Court’) has in this connection 
ruled that Annex III to the VAT Directive 2006 is intended to make certain goods 
and services considered particularly necessary cheaper and thus more accessible to 
the final consumer that ultimately bears the VAT, by making it possible for those 
goods and services to be subjected to a reduced rate. This is an exception to the 
principle that supplies of goods and services are subject to a standard rate which 
may not be less than 15% (cf. Articles 96 and 97 of the VAT Directive 2006). It is 
clear from the case-law of the Court that such exceptions to a general rule must be 
interpreted strictly. Also, according to the case-law of the Court, certain terms that 
are listed in Annex III but not defined have to be interpreted in the light of the 
context in which they are used in the directive and account being taken of their 
usual meaning. Although the Court presently holds specifically with regard to the 
term ‘foodstuffs’ that its interpretation must take account of the context in which 
it is used in the 2006 VAT Directive, it has not yet determined whether that also 
applies to its usual meaning. 
7 The goods referred to in point 1 of Annex III cover all foodstuffs for human and 
animal consumption and are subdivided into: (a) foodstuffs as such, (b) products 
used to supplement or as a substitute for foodstuffs, and (c) products normally 
intended for use as a constituent or ingredient in the preparation of foodstuffs (cf. 
judgment of the Court of 3 March 2011, Commission v Netherlands, C-41/09, 
EU:C:2011:108, paragraph 50). In answering the question of whether a product 
can be regarded as a foodstuff, no distinction or reservation whatever may be 
made according to the kind of business, method of selling, packaging, preparation 
or temperature (cfl. judgment of the Court of 10 March 2011, Bog and Others, 
Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09, EU:C:2011:135; ‘the 
Bog judgment’, paragraph 85). It does seem important that food and meals 
prepared for immediate consumption serve ‘as food’ for consumers (cf. the Bog 
judgment, paragraph 87). It is established that the products in question, by virtue 
of their composition, are suitable to be taken orally by humans and that they are 
also intended for that purpose. They are not to be regarded as constituents or 
ingredients used in the preparation of foodstuffs. It is therefore necessary to assess 
whether the products fall within the category referred to by the Court as 
‘foodstuffs as such’ or whether they fall into the category ‘products used to 
supplement or as a substitute for foodstuffs’. 
X 
 
5 
8 In the view of the Hoge Raad, the criteria for that assessment cannot with 
certainty be derived from the case-law of the Court. The doubts which arise in that 
respect are set out in paragraphs 9 to 12 below. 
9 Dictionaries in various Member States define ‘foodstuffs’ as products or food or 
beverages which serve to maintain the physical person by providing him with 
nutrients. The Hoge Raad is in doubt as to whether that meaning can be used as a 
criterion against the background of the context of the directive, as such an 
interpretation would lead to practical problems and legal uncertainty. There are, 
after all, food and beverages which serve more purposes than the maintenance of 
the physical person. In addition, the Court does not seem to use the usual meaning 
of the term ‘foodstuffs’ as a criterion for interpreting it (see paragraph 83 of the 
Bog judgment). It is conceivable that the criterion for determining whether a 
product is a foodstuff, viewed in the context of the 2006 VAT Directive, may have 
to be found in the usual sense of the term, but that the meaning used in (national) 
dictionaries is not decisive in this respect. If that is the case, the question arises as 
to what customary meaning must then be attached to that term. The Hoge Raad is 
of the view that, in the absence of guiding rulings on the matter from the Court, 
further guidance is needed in order for a uniform interpretation of the term 
foodstuffs to be guaranteed in all Member States. 
10 It can also be argued that the criterion for interpreting the term ‘foodstuffs’ cannot 
be found in its usual meaning. Another possibility is alignment with the definition 
of the term ‘foodstuffs’ to be found in Regulation No 178/2002. Article 2 of that 
Regulation defines the term ‘food or foodstuff’ as: 
‘any substance or product, whether processed, partially processed or 
unprocessed, intended to be, or reasonably expected to be, ingested by 
humans. “Food” includes drink, chewing gum and any substance, including 
water, intentionally incorporated into the food during its manufacture, 
preparation or treatment. ...’ 
In addition, the same Article 2 lists a number of products which meet that 
definition but which are explicitly not regarded as food. The Hoge Raad notes 
that, for the interpretation of certain terms from the 2006 VAT Directive, the 
Court has previously referred to EU legislation in areas of law other than 
VAT. However, an interpretation of the term ‘food or foodstuff’ in accordance 
with Regulation No 178/2002 does not seem compatible in the light of point 1 of 
Annex III. The EU legislature, after all, considered it necessary explicitly to 
include within the scope of point 1 of Annex III products which are fit for human 
consumption but which are not consumed as food as such. If products normally 
used to supplement foodstuffs or as a substitute for foodstuffs or products 
normally intended for use as a constituent or ingredient in the preparation of 
foodstuffs were already regarded as foodstuffs in themselves, it would not appear 
necessary for those products still to be designated separately as products to be 
listed in point 1 of Annex III. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-331/19 
 
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11 The Hoge Raad considers that alignment with the definition of food in Article 2 of 
Regulation No 178/2002 constitutes a criterion — which is easy to apply — for 
the interpretation of the term ‘foodstuffs’ which promotes a uniform interpretation 
of the term in all Member States. However, it is not beyond reasonable doubt that 
the simplicity of a criterion to be used for the interpretation of the term 
‘foodstuffs’ should have the greatest weight. 
12 If the usual meaning of the term ‘foodstuffs’ is not the criterion for the 
interpretation of that term, and if it is not possible to have recourse to the 
homonymous term in Regulation No 178/2002, a different criterion will have to 
be applied. The question is what that criterion should be. Neither the wording and 
the context of the 2006 VAT Directive nor the case-law of the Court provides 
clarity in this respect. 
13 If, according to point 1 of Annex III to the 2006 VAT Directive, the products 
cannot be regarded as foodstuffs in the strict sense, the question arises as to 
whether the products must be regarded as products normally used to supplement 
foodstuffs or as a substitute for foodstuffs It is not clear which criteria apply in 
such a scenario. One view may be that that term is limited to preparations 
intended to be taken orally in order to compensate for any nutritional deficiencies. 
In that case, the fact that a product is not advertised as supplementing or 
substituting a nutritional deficiency would preclude that product from being 
covered by that term. Another view may be that, for a preparation to be regarded 
as a supplement of foodstuffs or as a substitute for them, it is sufficient that the 
information on the packaging indicates that it contains nutrients that are also 
present in foodstuffs as such. 
14 The abovementioned doubts bring the Hoge Raad to refer the questions set out 
above to the Court for a preliminary ruling.