Opinion of the Advocate General — ECLI:EU:C:2025:824
Date: 2025-10-23
Language of the case: Spanish

Summary C-515/24 – 1 
Case C-515/24 
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: 
24 July 2024 
Referring court: 
Tribunal Supremo (Spain) 
Date of the decision to refer: 
22 July 2024 
Appellant: 
Randstad España, SLU 
Respondent: 
Administracíon General del Estado 
  
Subject matter of the main proceedings 
Appeal concerning a dispute between Randstad España, SLU, and the 
Administración General del Estado (General State Administration, Spain) – 
Assessment decisions relating to adjustments proposed by the Delegación Central 
de Grandes Contribuyentes (Central Office for Large Taxpayers, Spain) – Input 
VAT on expenditure arising from client entertainment – Non-deductibility in 
Spanish law 
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation – Article 267 TFEU – Standstill 
clause – Exception to the principle of VAT neutrality – Exclusions provided for in 
national law prior to the date of accession – Meaning of the expression ‘provided 
for’ – Directive 2006/112/EC – Article 176, second paragraph – Goods and 
services used by the business owner for his or her taxed transactions – 
Article 168(a) – ‘Direct and exclusive’ application to the business or professional 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-515/24 
 
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activity of the taxable person – Law 37/1992 on value added tax – 
Article 96(One)(4) and (5). 
Questions referred for a preliminary ruling 
1. Is a rule such as that contained in Article 96(One)(4) and (5) of Law 37/1992 
of 28 December 1992 on value added tax consistent with Article 168(a) and 
Article 176, first paragraph, of Council Directive 2006/112/EC of 28 November 
2006 on the common system of value added tax, where, in accordance with that 
rule, no proportion of the input VAT amounts resulting from the acquisition of 
goods and services such as [tickets for] sporting events, or those used to show 
appreciation for clients, salaried employees or third parties, is deductible, even if 
the taxpayer proves that such expenditure is directly related to his or her business 
or professional activity, that it had a strictly business or professional purpose and 
that the goods and services were used by the taxable person to carry out taxable 
transactions, and even though the amount of such expenditure is tax deductible for 
the purposes of income taxes (personal income tax and corporation tax)? 
2. Is a rule such as that contained in Article 96(One)(4) and (5) of Law 37/1992 
of 28 December 1992 on value added tax, which introduces a condition limiting 
the exercise of the right of deduction, consistent with Article 176, second 
paragraph, of Council Directive 2006/112/EC of 28 November 2006 on the 
common system of value added tax, where that rule entered into force the same 
day that the Kingdom of Spain joined the European Union, on 1 January 1986, 
and where no legislation in force until the date of accession provided for such a 
restriction? 
Provisions of European Union law and case-law relied on 
Treaty concerning the accession of the Kingdom of Spain and the Portuguese 
Republic to the European Economic Community and to the European Atomic 
Energy Community (OJ 1985 L 302, p. 9), Article 395: 
‘The new Member States shall put into effect the measures necessary for them to 
comply, from the date of accession, with the provisions of Directives and 
Decisions within the meaning of Article 189 of the EEC Treaty and of Article 161 
of the Euratom Treaty, and with recommendations and decisions within the 
meaning of Article 14 of the ECSC Treaty, unless a time limit is provided for in 
the list of Annex XXXVI or in any other provisions of this Act.’ 
Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the 
laws of the Member States relating to turnover taxes – Common system of value 
added tax: uniform basis of assessment (OJ 1977 L 145, p. 1; ‘the Sixth 
Directive’), Article 17(6), second subparagraph. 
RANDSTAD ESPAÑA 
 
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Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax (‘the VAT Directive’), Article 168(a) and Article 176. 
Judgment of 15 April 2010, X Holding and Oracle Nederland (C-538/08 and 
C-33/09, EU:C:2010:192, paragraphs 37 and 39). 
Judgment of 23 April 2009, PARAT Automotive Cabrio (C-74/08, 
EU:C:2009:261, paragraphs 22 and 23). 
Judgment of 2 May 2019, Grupa Lotos (C-225/18, EU:C:2019:349). 
Judgment of 19 September 2000, Ampafrance and Sanofi (C-177/99 and 
C-181/99, EU:C:2000:470, paragraph 34). 
Judgment of 8 January 2002, Metropol and Stadler (C-409/99, EU:C:2002:2, 
paragraphs 42, 44 and 58). 
Judgment of 22 December 2008, Magoora (C-414/07, EU:C:2008:766, 
paragraph 28). 
Judgment of 30 September 2010, Oasis East (C-395/09, EU:C:2010:570). 
Judgment of 18 July 2013, AES-3C Maritza East 1 (C-124/12, EU:C:2013:488). 
Provisions of national law and case-law relied on 
Ley 30/1985, de 2 de agosto, del Impuesto sobre el Valor Añadido (Law 30/1985 
of 2 August 1985 on value added tax), Article 33. 
Ley 37/1992, de 28 de diciembre, del Impuesto sobre el Valor Añadido (Law 
37/1992 of 28 December 1992 on value added tax), as worded in the version 
applicable to the actions at issue in the main proceedings (‘the VAT Law’): 
Article 96. Exclusions and restrictions on the right of deduction. 
‘One. No proportion of the input VAT amounts resulting from the acquisition, 
including by self-supply, import, hire, transformation, repair, maintenance or use 
of the goods and services set out below, or goods and services that are incidental 
or supplementary to them, shall be deductible: 
… 
4. Shows and recreational services. 
5. Goods and services used to show appreciation for clients, salaried 
employees or third parties. 
Such goods and services shall not include: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-515/24 
 
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(a) Free samples and the promotional items of small value defined in 
Article 7(2) and (4), of this law. 
(b) Goods solely intended to be supplied or hired out, directly or by means of 
their transformation, for consideration, which, at a time subsequent to their 
acquisition, are used to show appreciation for clients, salaried employees or 
third parties. 
6. Transport, travel, hotel and restaurant services, except where the relevant 
amounts are tax-deductible expenses for the purposes of personal income tax or 
corporation tax. 
Two. The input VAT amounts resulting from the transactions mentioned in the 
preceding paragraph and relating to the following goods and services shall be 
excluded from the provisions of that paragraph: 
1. Goods which may objectively be considered to be solely for industrial, 
commercial, agricultural, clinical or scientific use. 
2. Goods solely intended to be supplied or hired out, for consideration, directly 
or by means of their transformation, by business owners or professionals who 
regularly carry out such operations. 
3. Services received in order to be provided as such, for consideration, by 
business owners or professionals who regularly carry out such operations. 
Three. The deductions established in this article and in the preceding article shall 
also comply with the conditions and requirements laid down in Chapter I of Title 
VIII of this law and, in particular, those relating to the pro rata rule.’ 
Real Decreto Legislativo 4/2004, de 5 de marzo, por el que se aprueba el texto 
refundido de la Ley del Impuesto sobre Sociedades (Royal Legislative Decree 
4/2004 of 5 March 2004 approving the recast text of the Law on corporation tax). 
Ley del Impuesto sobre la Renta de las Personas Físicas [Ley 35/2006, de 28 de 
noviembre, del Impuesto sobre la Renta de las Personas Físicas y de modificación 
parcial de las leyes de los Impuestos sobre Sociedades, sobre la Renta de no 
Residentes y sobre el Patrimonio] (Law on personal income tax [Law 35/2006 of 
28 November 2006 on personal income tax and partially amending the laws on 
corporation tax, non-resident income tax and wealth tax]). 
Judgment of the Tribunal Supremo (Supreme Court, Spain) of 17 February 2001 – 
ROJ (case-law reference): STS 1097/2001. 
Judgment of the Supreme Court of 7 March 2002 – ROJ: STS 1600/2002. 
RANDSTAD ESPAÑA 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 On 27 May 2013, the company Randstad España, SLU, was notified of the start of 
verification and investigation [inspection] actions of a general nature by the 
Dependencia de Control Tributario y Aduanero (Office for Tax and Customs 
Control) of the Delegación Central de Grandes Contribuyentes (Central Office for 
Large Taxpayers, Spain), in respect of VAT for the 2009, 2010 and 2011 financial 
years. As a result of the actions carried out, on 29 April 2014, disputed tax 
assessment procedures were initiated for the 2009, 2010 and 2011 financial years. 
2 On 14 July 2014, assessment decisions were issued which confirmed the 
adjustment proposed in the disputed assessments. The tax adjustment was made in 
respect of the input VAT which the appellant company had paid in relation to 
expenses arising from the purchase of tickets for public shows and for services of 
a recreational nature, [that is] expenses arising from client entertainment, which 
are deductible for the purposes of corporation tax, but not in relation to the input 
VAT, which, in accordance with Article 96(One)(4) and (5) of the VAT Law, 
cannot be reclaimed by the business owner or professional, since it is not 
deductible. 
3 Randstad España, SLU, challenged the assessment decisions before the Tribunal 
Económico-Administrativo Central (Central Tax Tribunal, Spain), which rejected 
that challenge in a decision of 22 November 2017. 
4 Randstad España, SLU, brought an administrative action against that decision 
before the Sala de lo Contencioso Administrativo de la Audiencia Nacional 
(Administrative Division, National High Court, Spain), which, in a judgment of 
17 January 2022, partially found in favour of Randstad España, SLU, annulling 
the assessments issued in respect of VAT for the 2009, 2010 and 2011 financial 
years and also the penalty decisions, but confirming the tax adjustment made in 
respect of the purchases of tickets for sporting events and services of a 
recreational nature. An appeal against that judgment was brought before the Sala 
de lo Contencioso-Administrativo del Tribunal Supremo (Administrative 
Division, Supreme Court, Spain), which is the referring court. 
The essential arguments of the parties in the main proceedings 
5 Randstad España, SLU, has asked the referring court to give judgment declaring 
Article 96(One)(4) and (5) of the VAT Law to be inconsistent with EU law and, 
therefore, to set aside the judgment under appeal and restore Randstad España, 
SLU, to its [prior] legal position, ordering the return of the VAT amounts and 
default interest paid, together with payment of any default interest due to 
Randstad España, SLU, and making whatever other rulings the law requires. 
6 The Abogacía del Estado (Government Legal Service, Spain) has filed a statement 
of opposition in which it proposes, as a legally correct interpretation, that the 
restriction on the right of deduction established in Article 96(One)(4) and (5) of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-515/24 
 
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the VAT Law is covered by the standstill clause provided for in Article 176, 
second paragraph, of the VAT Directive. 
7 With regard to the appropriateness of requesting a preliminary ruling, the 
Government Legal Service has expressed its opposition. The procedural 
representatives of Randstad España, SLU, however, submit that, applying the acte 
claire case-law doctrine and the principle of the primacy of EU law, the 
abovementioned restrictions on the right of deduction provided for in the VAT 
Law should be disapplied, without a preliminary ruling from the Court of Justice 
needing to be requested beforehand, since they are neither covered nor protected 
by the standstill clause and are, therefore, contrary to the VAT Directive. As a 
secondary matter, they have asked the Administrative Division of the Supreme 
Court to request a preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The question referred by the Supreme Court consists in determining whether the 
restriction on the right of deduction established in Article 96(One)(4) and (5) of 
the VAT Law is covered by the standstill clause provided for in Article 176, 
second paragraph, of the VAT Directive, given that it introduces a condition 
limiting the exercise of the right of deduction, that the provision which preceded 
that provision entered into force on the same day that the Kingdom of Spain 
joined the European Union, on 1 January 1986, and that, therefore, strictly 
speaking, there was no legislation in force that provided for such a restriction until 
the date of accession itself. To that end, the Supreme Court considers the 
antecedents to the current regulation of that clause, both in EU law and in Spanish 
law, to be relevant. 
9 The standstill clause was regulated in Article 17(6), second subparagraph, of the 
Sixth Directive, which provided for the retention of national exclusions from the 
right to deduct VAT that were applicable before it entered into force. That 
provision was replaced by Article 176 of the VAT Directive. Given that the 
Council still has not, acting on a proposal from the Commission, determined the 
expenditure in respect of which VAT is not deductible, those States which have 
acceded to the European Union following the entry into force of the Sixth 
Directive (17 May 1977), such as Spain, are permitted to retain the exclusions 
provided for under their national laws at the date of their accession. 
10 In view of the above, the questions referred here centre solely on the interpretation 
of the standstill clause. It is on that and no other EU rule that the Spanish tax 
authority bases its contention that the restrictions on the right of deduction at issue 
in the main proceedings are consistent with the rules laid down in EU law. 
11 The premiss from which the regulation of VAT starts is one of neutrality, such 
that care must be taken to ensure, on the one hand, that the business owner or 
professional does not end up being at the end of the chain when it comes to the tax 
being passed on and, on the other, that the tax is collected correctly, avoiding a 
RANDSTAD ESPAÑA 
 
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situation in which no output VAT is charged in respect of transactions that have 
given rise to an input VAT deduction, improperly excluding those transactions 
from the tax mechanism. In that regard, the judgment of 23 April 2009, PARAT 
Automotive Cabrio (C-74/08, EU:C:2009:261, paragraphs 22 and 23), clarifies 
that ‘the objective of that provision is to allow Member States, pending the 
establishment by the Council of the Community system of exclusions from the 
right to deduct VAT, to maintain any rules of national law excluding that right to 
deduct which were actually applied by their public authorities at the date of entry 
into force of the Sixth Directive’ and specifies that ‘arrangements providing for a 
derogation from the principle of the right to deduct VAT, which are laid down in a 
general manner in Article 17(2) of the Sixth Directive and which ensure the 
neutrality of that tax, are to be interpreted strictly’. The same has been declared 
with regard to Articles 168 and 176 of the VAT Directive (judgment of 2 May 
2019, Grupa Lotos, C-225/18, EU:C:2019:349). 
12 The principle of neutrality is conditional on the prerequisite relating to 
application, that is, the input VAT is to be neutral for the taxable person in so far 
as the services or goods in respect of which it has been paid are used in the 
operations inherent in the business or professional activity of the taxable person 
(Article 168 of the VAT Directive and, previously, Article 17(6) of the Sixth 
Directive). A peculiarity of the Spanish situation is that, in relation to the 
application prerequisite, Article 95 of the VAT Law requires ‘direct and 
exclusive’ application to the business or professional activity of the taxable 
person. 
13 It is apparent from the case-law of the Court of Justice that derogations from the 
right to deduct VAT are permitted only in the cases expressly provided for by the 
provisions of the directives governing that tax (see, to that effect, judgments of 
19 September 2000, Ampafrance and Sanofi, C-177/99 and C-181/99, 
EU:C:2000:470, paragraph 34, and of 8 January 2002, Metropol and Stadler, 
C-409/99, EU:C:2002:2, paragraphs 42, 44 and 58) and are to be interpreted 
strictly (judgment of 22 December 2008, Magoora, C-414/07, EU:C:2008:766, 
paragraph 28). 
14 The appeal from which the present questions referred arise concerns a case in 
which the principle of VAT neutrality seems to be breached, even where the 
requirement relating to application to the relevant economic activity is satisfied, 
since Article 33(1)(5) of Law 30/1985 and now Article 96(One)(4) and (5) of the 
VAT Law limit the right of deduction. 
15 Law 30/1985 was published on 9 August 1985, but did not enter into force (first 
final provision) until 1 January 1986. In the case of the taxes replaced by VAT 
(second final provision), inter alia, but principally, the business transaction tax and 
the luxury tax, no deduction mechanism was provided for (the mechanism by 
which the taxes were passed on was). Before 1 January 1986, there was no 
consumption tax in Spain similar in structure to VAT, but rather there was a 
collection of taxes levied on consumption. Prior to that date, rules relating to the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-515/24 
 
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exercise of the right of deduction did not apply to any of them, [including] in 
particular the business transaction tax and the luxury tax. There is no basis for 
comparison in that regard, since, with those two taxes, unlike with VAT, the right 
of deduction does not exist. In the case of those taxes, then, which applied in 
Spain until 31 December 1985, the right of deduction could never be applied in 
respect of any proportion of the tax paid. Until the date on which the Act of 
Accession entered into force, the 1985 Spanish law did not provide for such a 
restriction. It cannot, strictly speaking, be said that prior to that date there was 
actually an exclusion from [the right to deduct] the consumption tax paid. 
Therefore, the referring court has doubts as to whether the EU law is able to cover 
the situation provided for in Article 96 of the VAT Law and is inclined to the view 
that that provision of Spanish law could be contrary to the EU law in question, in 
view of the case-law of the Court of Justice declaring that such exclusions are to 
be interpreted strictly (restrictively). 
16 The national legislation, Article 96(One)(4) and (5) of the VAT Law, does not 
allow the input VAT amounts to be deducted, irrespective of whether the 
expenditure is or is not (or is in part) applied to the business or professional 
activity in question. Although, under certain conditions, expenditure incurred 
showing appreciation for clients is deductible under the Law on corporation tax 
and under the Law on personal income tax, the input VAT amounts are not 
deductible and, consequently, are not reclaimable for the business owner or 
professional. In the case submitted to the referring court, it is necessary to request 
a preliminary ruling on the questions referred, given that the existing case-law 
does not make it clear whether or not that implies a justifiable breach of the 
principle of neutrality. Up to now, in its case-law, the Supreme Court has held that 
the expression ‘provided for’ in the EU legislation is not to be interpreted as 
referring to [provisions] ‘in force’, but rather provisions contained in the national 
legislation of the Member State. Therefore, as the 1985 VAT Law was passed 
before 1 January 1986, but those provisions already existed in August 1985, it 
holds that the Spanish legislation was not contrary to EU law. However, the court 
which must now determine the present appeal is inclined to the view that the case-
law of the Court of Justice requires not only that the relevant provisions existed, 
but also that they were in force prior to accession, that is, that they were actually 
applicable. 
17 Furthermore, given how the rules have evolved in Spanish law, it is worth noting 
that the Member States are able to legislate following accession if the new rules 
are aimed at improving fiscal neutrality. Reducing the number of exceptions to the 
general VAT structure and strengthening the principle of neutrality is in line with 
EU law, but new exclusions from the right of deduction cannot be introduced. The 
scope of the exclusions already in existence cannot be extended. In that regard, as 
stated in the judgment against which the appeal forming the subject matter of the 
main proceedings was brought, the restriction relating to expressions of 
appreciation for clients has been in force since Law 30/1985, while that relating to 
shows and recreational services was introduced in the VAT Law in 1992.