Opinion of the Advocate General — ECLI:EU:C:2019:942
Date: 2019-11-07
Language of the case: German
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

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: 
25 July 2018 
Referring court or tribunal: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
21 June 2018 
Applicant, and Respondent in the appeal on a point of law: 
Golfclub Schloss Igling e. V. 
Defendant, and Appellant on a point of law: 
Finanzamt Kaufbeuren mit Außenstelle Füssen 
  
Subject matter of the main proceedings 
Common system of value added tax — Direct effect of Article 132(1)(m) of 
Directive 2006/112 — Interpretation of the concept of ‘non-profit-making 
organisation’ in that provision 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Does Article 132(1)(m) of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax, under which Member 
States are to exempt ‘the supply of certain services closely linked to sport or 
physical education by non-profit-making organisations to persons taking part 
in sport or physical education’, have direct effect, with the result that, in the 
EN 
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absence of transposition, that provision may be relied on directly by non-
profit-making organisations? 
2. If the first question is answered in the affirmative: Is ‘non-profit-making 
organisation’ within the meaning of Article 132(1)(m) of Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added 
tax 
– a concept that must be interpreted under EU law autonomously, or 
– are the Member States authorised to make the existence of such an 
organisation subject to conditions such as Paragraph 52, in conjunction 
with Paragraph 55, of the Abgabenordnung (German General Tax 
Code) (or Paragraph 51 et seq. of the General Tax Code in their 
entirety)? 
3. If it is a concept that must be interpreted under EU law autonomously: Must 
a non-profit-making organisation within the meaning of Article 132(1)(m) of 
Council Directive 2006/112/EC of 28 November 2006 on the common 
system of value added tax have rules that apply in the event that the 
organisation is dissolved, under which it has to transfer its existing assets to 
another non-profit-making organisation in order to promote sport and 
physical education? 
Provisions of EU law cited 
Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the 
laws of the Member States relating to turnover taxes — Common system of value 
added tax: uniform basis of assessment, in particular Article 13A 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, in particular Article 2(1) and Articles 132 to 135 
Provisions of national legislation cited 
Abgabenordnung (General Tax Code; ‘the AO’), in particular Paragraph 51 et seq. 
Brief summary of the facts and procedure 
1 The applicant is a registered association, which was not recognised as charitable 
within the meaning of Paragraph 51 et seq. of the AO in the year at issue (2011). 
According to its articles of association, the purpose of the association is to nurture 
and promote the sport of golf. This purpose is pursued via the operation of a golf 
course and the associated facilities. 
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2 In the year at issue, the applicant provided, inter alia, a series of services which 
come within the scope of VAT within the meaning of Article 2(1)(c) of Directive 
2006/112 and which are the subject of dispute as to whether they can be exempt 
from tax pursuant to Article 132(1)(m) of that directive. Those services relate to 
the entitlement to use the golf course (green fee), the rental of golf balls, the 
holding of golf tournaments and events for which the applicant received entry fees 
for participation, caddie hire and the sale of a golf club. 
3 The defendant Finanzamt (tax office) considered the aforementioned services to 
be subject to VAT. The Finanzgericht (Finance Court) allowed the action brought 
against the tax office on the ground that the applicant was a non-profit-making 
organisation that could rely on Article 132(1)(m) of Directive 2006/112 for 
exemption from tax for the transactions at issue. The tax office’s appeal on a point 
of law challenges that decision. 
Brief summary of the basis for the reference 
Preliminary remarks 
4 Under national law, only entry fees can be exempt from tax. The tax office also 
denied tax exemption in respect of these, however, as the applicant is not a 
charitable organisation within the meaning of Paragraph 51 et seq. of the AO. 
5 Under EU law, all of the services at issue may be exempt from tax pursuant to 
Article 132(1)(m) of Directive 2006/112, with the exception of the sale of a golf 
club. This has already been held by the Court of Justice with regard to green fees 
(see the judgment of 19 December 2013, Bridport and West Dorset Golf Club, 
C-495/12, EU:C:2013:861, paragraphs 30 and 32). For these services, the 
questions material to the decision in the case in dispute therefore arise as to 
whether Article 132(1)(m) has direct effect (first question of law) and what 
meaning is to be attached to the concept of a non-profit-making organisation in 
that provision (second and third questions of law). 
6 The referring court takes the view that Article 133(a) and Article 134 of Directive 
2006/112 do not preclude this. 
7 In relation to Article 133(a) of Directive 2006/112 (previously the first indent of 
Article 13A(2)(a) of Directive 77/388), the Court of Justice has ruled that the 
prohibition of systematically making a profit is to be interpreted in the same way 
as the concept of a non-profit-making organisation in Article 132(1)(m) of 
Directive 2006/112 (Article 13A(1)(m) of Directive 77/388) (judgment of 
21 March 2002, Kennemer Golf, C-174/00, EU:C:2002:200, paragraph 35). 
8 In relation to Article 134 of Directive 2006/112, the Court of Justice has ruled that 
that provision does not exclude from the exemption in Article 132(1)(m) of 
Directive 2006/112 a supply of services consisting in the grant, by a non-profit-
making body managing a golf course and offering a membership scheme, of the 
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right to use that golf course to visiting non-members of that body (judgment of 
19 December 2013, Bridport and West Dorset Golf Club, C-495/12, 
EU:C:2013:861, paragraph 32). 
The first question of law 
9 In view of the judgment of 15 February 2017, British Film Institute (C-592/15, 
EU:C:2017:117), it is doubtful whether Article 132(1)(m) of Directive 2006/112 
has direct effect, so that in the absence of transposition that provision may be 
relied on directly by non-profit-making organisations. 
10 In that judgment, the Court of Justice ruled that Article 13A(1)(n) of Directive 
77/388, exempting ‘certain cultural services’ from VAT, had to be interpreted as 
not being of direct effect, with the result that, in the absence of transposition, that 
provision could not be relied on directly by a body governed by public law or 
other cultural body recognised by the Member State concerned supplying cultural 
services. 
11 The Court of Justice based this finding on the ground that, by referring to ‘certain 
cultural services’, Article 13A(1)(n) of Directive 77/388 does not require the 
exemption of all cultural services, with the result that the Member States may 
exempt ‘certain’ of them while subjecting others to VAT. In so far as that 
provision allows the Member States a discretion in determining the exempted 
cultural services, it does not satisfy the conditions for being capable of being 
relied on directly before the national courts (judgment of 15 February 2017, 
British Film Institute, C-592/15, EU:C:2017:117, paragraphs 23 and 24). 
12 The fact that the EU legislature clearly did not wish to oblige the Member States 
to exempt the supply of all services closely linked to sport or physical education 
by non-profit-making organisations to persons taking part in sport or physical 
education could militate against a direct effect of Article 132(1)(m) of Directive 
2006/112. However, this would ultimately be the position if it were to be found 
that the provision has direct effect. 
The second question of law 
13 In relation to the second question, the referring court assumes that — owing to the 
lack of authorisation to determine a definition, such as that granted to them by 
virtue of Article 135(1)(g) of Directive 2006/112, for instance — 
Article 132(1)(m) of Directive 2006/112 does not permit the Member States to 
define the concept of non-profit-making organisation independently. Accordingly, 
it is not possible for this concept to be interpreted in accordance with either 
Paragraph 52, in conjunction with Paragraph 55, of the AO (in which the concept 
of charitable purposes and the concept of altruism, which is part of the definition 
of the former concept, are defined) or Paragraph 51 et seq. of the AO in their 
entirety (that is to say, all of the provisions which determine when a body pursues 
purposes that are granted tax reductions, in particular charitable purposes). In this 
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regard, the Bundesfinanzhof (Federal Finance Court) has already ruled that the tax 
exemptions pursuant to Article 13 of Directive 77/388 are autonomous concepts 
under EU law that are intended to avoid a situation in which the implementation 
of the system of value added tax varies from one Member State to another. 
The third question of law 
14 The third question arises if Article 132(1)(m) of Directive 2006/112 has direct 
effect and the Member States are not permitted to define the concept of a non-
profit-making organisation. In such a case, clarification is required as to which 
requirements are to be imposed on this concept under EU law. 
15 In this respect, it is important to ascertain whether a non-profit-making 
organisation requires that the use of its assets for the purpose facilitated by 
Article 132(1)(m) of Directive 2006/112 will also be safeguarded in the event that 
the organisation is dissolved, with the result that, even then, financial advantages 
do not arise for the members (in this respect, see., in general terms, judgment of 
21 March 2002, Kennemer Golf, C-174/00, EU:C:2002:200, paragraph 33).