Opinion of the Advocate General — ECLI:EU:C:2009:7
Date: 2009-01-15
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption of services supplied by the public postal services (Council Directive 77/388, Art. 13A(1)(a) and European Parliament and Council Directive 97/67, Art. 3) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions provided for in the Sixth Directive – Exemption of services supplied by the public postal services (Council Directive 77/388, Art. 13A(1)(a)) 1. The concept of ‘public postal services’ in Article 13A(1)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted to cover operators, whether they are public or private, who undertake to provide, in a Member State, all or part of the universal postal service, as defined in Article 3 of Directive 97/67 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2002/39. First, in order to be covered by the wording of Article 13A(1)(a) of the Sixth Directive, the supplies of services to be exempted must be performed by a body which may be described as ‘the public postal service’ in the organic sense of that expression. The fact that Article 132(1)(a) of Directive 2006/112 on the common system of value added tax is drafted in terms precisely identical to those in Article 13A(1)(a) of the Sixth Directive shows that the exemption provided for in the latter provision has been maintained in the form in which it was originally enacted, notwithstanding the liberalisation of the postal sector. It follows that the exemption laid down in Article 13A(1)(a) of the Sixth Directive cannot be interpreted so as to cover, in essence, supplies of postal services, such as the reserved services within the meaning of Article 7 of Directive 97/67, regardless of the status of the provider of those services. Secondly, the exemptions provided for in Article 13A(1)(a) of the Sixth Directive are intended to encourage certain activities in the public interest. That general objective takes the form, in the postal sector, of the more specific objective of offering postal services which meet the essential needs of the population at a reduced cost. As Community law now stands, such an objective is the same, in essence, as that of Directive 97/67 to offer a universal postal service. Under Article 3(1) of that directive, such a service involves the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users. Therefore, notwithstanding the fact that it cannot be used as a basis for the interpretation of Article 13A(1)(a) of the Sixth Directive, the legal basis of which differs from that of Directive 97/67, the latter directive nevertheless constitutes a useful point of reference for the purposes of interpreting the term ‘public postal services’ within the meaning of that provision. (see paras 27-30, 32-36, 40, operative part 1) 2. The exemption provided for in Article 13A(1)(a) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes applies to the supply by the public postal services acting as such – that is, in their capacity as an operator who undertakes to provide all or part of the universal postal service in a Member State – of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto. It does not apply to supplies of services or of goods incidental thereto for which the terms have been individually negotiated. (see para. 49, operative part 2)