Judgment;Summary — ECLI:EU:C:2025:624
Date: 2025-08-01
Language of the case: German
Procedure: Reference for a preliminary ruling

summary, see Dohmen/Giminez/Klingemann, Positive 
Auswirkungen von sudoku auf Bildung und Gesundheit, Berlin 2023). 
23 In the view of the referring court, the question arises as to whether the explanatory 
notes to the HS, which are to be used as an aid to interpretation, can be invoked 
against that understanding which is determined in accordance with the wording 
and purpose of CN heading 4902. It can be inferred from the introductory 
explanatory notes to heading 4902 (ECT No 01.0) that the products in question 
contain printed text. However, that statement is qualified in two ways: Firstly, it is 
preceded by the word ‘mostly’, from which it could be deduced that the presence 
of text is not an essential feature of the printed matter to be classified under that 
heading. Secondly, it may be inferred from the following sentence of the 
introductory explanatory notes that the printed matter – unlike in the case of CN 
heading 4901 – can also be largely illustrated and even consist mainly of pictorial 
matter and contain advertising. Against this background, there is much to support 
the conclusion that, at least for reasons of equal treatment, periodicals in which 
numbers are predominantly printed are also to be classified under this heading. 
2. Question 2 
24 Should the Court of Justice conclude that printed matter, which essentially only 
contains numbers, is not to be classified under CN heading 4902, the question 
further arises as to whether the reduced rate should nevertheless be applied to it in 
view of the principles of equal treatment and neutrality. 
25 The referring court tends to the view that Article 98(3) of the VAT Directive, in 
conjunction with CN heading 4902, would infringe the principle of equal 
treatment under EU law if the first question referred were to be answered in the 
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affirmative. The Court of Justice has consistently held that the principle of equal 
treatment enshrined in Article 20 of the Charter of Fundamental Rights of the 
European Union – the Charter – requires that comparable situations must not be 
treated differently and different situations must not be treated in the same way 
unless such treatment is objectively justified (Court of Justice, judgments of 
12 November 2014, Guardian Industries and Guardian Europe v Commission, 
C-580/12 P, EU:C:2014:2363, paragraph 51, and of 4 May 2016, Pillbox 38, 
C-477/14, EU:C:2016:324, paragraph 35). 
26 The factors which distinguish different situations, and the question whether those 
situations are comparable, must be determined and assessed in the light of the 
subject matter of the provisions in question and of the aim pursued by them, 
whilst account must be taken for that purpose of the principles and objectives of 
the field in question (see, to that effect, Court of Justice, judgment of 
16 December 2008, Arcelor Atlantique et Lorraine and Others, C-127/07, 
EU:C:2008:728, paragraph 26 and the case-law cited). 
27 In the present case, if the answer to the first question is in the affirmative the 
power conferred in Article 98(3) of the VAT Directive and its reference to the CN 
gives rise to different treatment in respect of the supply of periodical printed 
matter coming under CN heading 4902, which predominantly contains text to 
which the reduced VAT rate may be applied, and the supply of periodical printed 
matter, which predominantly contains numbers, for which this is not the case. As 
already stated above (see paragraph 22) with reference to the case-law of the 
Court of Justice (judgment of 7 March 2017, RPO, C-390/15, EU:C:2017:174, 
paragraph 45), the purpose of the power conferred in Article 98 of the VAT 
Directive is to promote the reading of fiction, non-fiction, newspapers or 
magazines and thus education. In order for that objective to be achieved, the 
citizens of the European Union must have effective access to the content of 
printed matter, regardless of the form in which it is made available. Since, as 
explained above, number sudokus also fulfil an educational purpose, the referring 
court considers that there are, in principle, comparable situations. 
28 Where a difference in treatment between two comparable situations is found, the 
principle of equal treatment is not infringed in so far as that difference is duly 
justified (Court of Justice, judgments of 7 March 2017, RPO, C-390/15, 
EU:C:2017:174, paragraph 52, and of 16 December 2008, Arcelor Atlantique et 
Lorraine and Others, C-127/07, EU:C:2008:728, paragraph 46). 
29 That is the case, according to settled case-law of the Court, where the difference in 
treatment relates to a legally permitted objective pursued by the measure having 
the effect of giving rise to such a difference and is proportionate to that objective 
(see Court of Justice, judgments of 17 October 2013, Schaible, C-101/12, 
EU:C:2013:661, paragraph 77, and of 22 May 2014, Glatzel, C-356/12, 
EU:C:2014:350, paragraph 43). 
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30 However, the Court of Justice has also ruled that the EU legislature must be 
accorded broad discretion in that respect when adopting tax measures as it is 
called upon to make political, economic and social choices in those cases and rank 
divergent interests or undertake complex assessments (Court of Justice, judgments 
of 7 March 2017, RPO, C-390/15, EU:C:2017:174, paragraph 54; of 10 December 
2002, British American Tobacco (Investments) and Imperial Tobacco, C-491/01, 
EU:C:2002:741, paragraph 123; and of 17 October 2013, Billerud Karlsborg and 
Billerud Skärblacka, C-203/12, EU:C:2013:664, paragraph 35). 
31 Having regard to those principles, the referring court is inclined to find that there 
is no justification for the different treatment of letter sudokus, on the one hand, 
and number sudokus, on the other. It is not apparent that the unequal treatment is 
related to a legally permitted objective. No such objective can be inferred from the 
preamble to the VAT Directive or of Regulation (EEC) No 2658/87, which 
transposes the CN into secondary law. No legitimate objective which could be 
pursued by the unequal treatment is otherwise apparent. 
32 According to the case-law of the Court of Justice, the resulting non-observance of 
the principle of equal treatment under EU law pursuant to Article 20 of the 
Charter means that ‘persons within the disadvantaged category [are granted] the 
same advantages as those enjoyed by persons within the favoured category (Court 
of Justice, judgment of 12 December 2002, Caballero, C-442/00, [2002] ECR I-
11915, paragraph 42). Consequently, the reduced rate should also apply to the 
supply of number sudoku books. 
33 Furthermore, if the answer to the first question is in the affirmative, the referring 
court considers it necessary to clarify whether Article 98(3) of the VAT Directive 
must be interpreted in the light of the principle of VAT neutrality as meaning that 
the reduced rate must also apply to the supply of sudoku number puzzle books. It 
is true that Article 98(3) of the VAT Directive empowers the Member States to 
establish the precise coverage of the category concerned on the basis of the CN, 
thus in the present case on the basis of CN heading 4902, which – as has been 
stated –, if the answer to the first question is in the affirmative, results in the 
exclusion of number sudokus from the application of the reduced rate. However, 
the referring court has doubts as to whether the principle of fiscal neutrality under 
EU law requires a strict interpretation of Article 98(3) of the VAT Directive as 
meaning that the requirements of the CN may only be applied in accordance with 
the principle of neutrality in VAT law. 
34 In VAT law, the principle of equal treatment also takes the form of the principle 
of fiscal neutrality (Court of Justice, judgments of 15 November 2012, 
Zimmermann, C-174/11, EU:C:2012:716, paragraph 46, and of 13 March 2014, 
Jetair and BTWE Travel4you, C-599/12, EU:C:2014:144, paragraph 53). The 
principle of fiscal neutrality is a sector-specific principle (Court of Justice, 
judgement of 10 April 2008, Marks and Spencer, C-309/06, [2008] ECR I-2283, 
paragraph 49), which must be taken into account when interpreting the provisions 
of the VAT Directive (in this case Article 98(3) thereof) (see Court of Justice, 
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judgment of 19 July 2012, Deutsche Bank, C-44/11, ECLI:EU:C:2012:484, 
paragraph 45). 
35 The VAT principle of fiscal neutrality precludes economic operators who carry 
out similar transactions from being treated differently for the purposes of charging 
VAT (Court of Justice, judgment of 3 February 2022, B AG, C-515/20, 
EU:C:2022:73, paragraph 43 and the case-law cited). In order to determine 
whether goods or services are similar, account must primarily be taken of the 
point of view of a typical consumer. Goods or services are similar where they 
have similar characteristics and meet the same needs from the point of view of 
consumers, the test being whether their use is comparable, and where the 
differences between them do not have a significant influence on the decision of 
the average consumer to use one or the other of those goods or services (Court of 
Justice, judgment of 9 September 2021, Phantasialand, C-406/20, 
EU:C:2021:720, paragraph 38; judgment of 27 June 2019, Belgisch Syndicaat van 
Chiropraxie and Others, C-597/17, EU:C:2019:544, paragraph 48; and judgment 
of 10 November 2011, The Rank Group, C-259/10 and C-260/10, EU:C:2011:719, 
paragraph 44). Artificial distinctions based on insignificant differences must be 
avoided (Court of Justice, judgment of 27 February 2014, Pro Med Logistik and 
Pongratz, C-454/12 and C-455/12, EU:C:2014:111, paragraph 53, and judgment 
of 10 November 2011, The Rank Group, C-259/10 and C-260/10, EU:C:2011:719, 
paragraph 43). 
36 It is necessary to determine whether the goods and services at issue are 
interchangeable from the point of view of an average consumer. If that is the case, 
the application of different VAT rates might affect the consumer’s choice which, 
in turn, would indicate an infringement of the principle of fiscal neutrality (Court 
of Justice, judgment of 9 September 2021, Phantasialand, C-406/20, 
EU:C:2021:720, paragraph 39 and the case-law cited). 
37 On the basis of those principles, the Chamber considers that there is much to 
suggest that the number sudoku puzzle books marketed by the applicant are, from 
the point of view of the average consumer, comparable to puzzle books consisting 
of letter sudokus or crossword puzzles and which consequently consist of 
sequences of letters, which must unquestionably be classified under CN heading 
4902. The same is likely to apply to the relationship between number sudokus and 
music sudokus, which would clearly have to be classified under CN heading 4904. 
A consumer is likely to be primarily interested in the fact that those puzzle books, 
which differ in terms of typography, all satisfy the same interests – education, the 
reduction of stress and the boosting of concentration. 
38 They are thus interchangeable from the point of view of the average consumer and 
therefore unequal treatment in that respect would infringe the principle of fiscal 
neutrality. The referring court therefore considers that, if the answer to the first 
question is in the affirmative, Article 98(3) of the VAT Directive should be 
interpreted as meaning that the requirements arising from CN heading 4902 may 
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be adopted only in compliance with the principle of fiscal neutrality and therefore 
the reduced rate must also apply to the supply of sudoku number puzzle books. 
3. Staying of proceedings 
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