Judgment;Summary — ECLI:EU:C:2021:720
Date: 2021-09-09
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Taxation
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: 
28 August 2020 
Referring court: 
Finanzgericht Köln (Germany) 
Date of the decision to refer: 
25 August 2020 
Applicant: 
Phantasialand 
Defendant: 
Finanzamt Brühl 
  
Subject matter of the main proceedings 
Directive 2006/112 – Article 98(2), in conjunction with Annex III(7) – 
Compatibility with EU law of the differing taxation of fairs and theme parks – 
Similarity of services – Gathering of evidence on the ‘point of view of the average 
consumer’ 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law; Article 267 TFEU 
Questions referred 
1. Can the listing of fairs and amusement parks in Annex III(7) to Directive 
2006/112, in conjunction with Article 98(2) thereof, be relied on as the basis 
for drawing a distinction in the form of the taxation of a theme park at the 
standard rate, even though the term ‘amusement park’ covers both static and 
mobile fairground undertakings? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-406/20 
 
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2. Is the case-law of the Court of Justice of the European Union, to the effect 
that different services may be dissimilar on account of their context, 
applicable to the provision of services by mobile fairground entertainers and 
by static fairground undertakings in the form of theme parks? 
3. In the event that the second question is answered in the negative: 
Does the ‘point of view of the average consumer’, which, in accordance with 
the case-law of the Court of Justice of the European Union, is an essential 
element of the principle of fiscal neutrality, constitute a ‘conceptual 
perspective’ not amenable to the gathering of evidence based on expert 
opinion? 
Provisions of EU law cited 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, in particular Article 98(2), in conjunction with Annex III(7) 
Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying 
down implementing measures for Directive 2006/112/EC on the common system 
of value added tax, in particular Article 32 
Provisions of national law cited 
Umsatzsteuergesetz (Law on turnover tax; ‘the UStG’), in particular 
Paragraph 12(2), point 7(d) 
Umsatzsteuer-Durchführungsverordnung (Regulation implementing the UStG; 
‘the UStDV’), in particular Paragraph 30 
Brief presentation of the facts and procedure 
1 The applicant is one of the most famous theme parks in Europe. In return for 
payment of an admission fee, visitors to the theme park acquire the right to use its 
facilities. 
2 The applicant applied for its admissions to be taxed on the basis of 
Paragraph 12(2), point (7)(d), of the UStG. Under that provision, a reduced rate of 
VAT of 7% applies to, inter alia, services provided through activities carried on as 
a fairground entertainer. In accordance with Paragraph 30 of the UStDV, services 
provided through activities carried on as a fairground entertainer consist of 
amusements, musical performances, shows or other attractions at fairs, funfairs, 
traditional shooting fairs or similar events. The defendant refused the application. 
The action brought before the referring court is directed against that refusal. 
PHANTASIALAND 
 
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Brief presentation of the grounds for the reference 
3 It falls to the referring court to determine, inter alia, whether, in accordance with 
the principle of fiscal neutrality, fairground entertainment services at fairs and 
similar temporary events, which are taxed at a reduced rate under national law, are 
similar, from the point of view of the average consumer, to funfair entertainment 
services in the form of static amusement parks or theme parks, which are taxed at 
the standard rate. 
4 The Bundesfinanzhof (Federal Finance Court, Germany; ‘the BFH’) has held that 
the fact that services provided by fairground entertainers at fairs, on the one hand, 
and services provided by a static amusement park, such as that operated by the 
applicant, on the other, are treated differently for turnover tax purposes does not 
infringe the principle of fiscal neutrality. 
5 In setting out the reasons for this decision, the BFH stated that a static fairground 
undertaking whose operations are not time limited could not be regarded as an 
event similar to a funfair. From the point of view of EU law, there is, in its view, 
no question in this regard. If the national legislature chooses to avail itself of the 
discretion granted to it by the categories of supplies set out in Annex III to 
Directive 2006/112, it is under no obligation to transpose all of the individual 
categories listed there. In the absence of any similarity between the services in 
question, there is, by extension, also no infringement of the principle of fiscal 
neutrality. 
The terms ‘Jahrmärkte’, ‘Vergnügungsparks’ and ‘Freizeitparks’ 
6 According to the German version of Annex III(7) to Directive 2006/112, 
‘Jahrmärkte’ and ‘Vergnügungsparks’ are among the services to which reduced 
rates of tax may be applied in accordance with Article 98 of that directive. The 
corresponding terms in the English text are ‘fairs’ for ‘Jahrmärkte’ and 
‘amusement parks’ for ‘Vergnügungsparks’, and, in the French text, ‘foires’ for 
‘Jahrmärkte’ and ‘parcs d’attraction’ for ‘Vergnügungsparks’. By contrast, the 
German version of Article 32 of Implementing Regulation No 282/2011, which 
relates to Article 53 of Directive 2006/112, refers only to ‘Freizeitpark’ as the 
equivalent term for ‘fairs’ and ‘amusement parks’ and for ‘foires’ and ‘parcs 
d’attraction’ respectively. 
7 In German language usage, the term ‘Freizeitpark’ is understood as referring to 
static fairground undertakings, while the term ‘Vergnügungspark’ covers both 
amusement parks which are permanent, in which case they are called 
‘Freizeitparks’, and those that operate on a time-limited basis, which are known as 
‘Kirmes’, ‘Jahrmarkt’ or ‘Volksfest’. 
8 The referring court considers it desirable, given the linguistic confusion outlined 
above, for the Court of Justice to rule on how the terms ‘Jahrmärkte’, 
‘Vergnügungsparks’ and ‘Freizeitparks’ in Directive 2006/112 and in 
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Implementing Regulation No 282/2011 are to be defined and distinguished from 
one another. 
9 The question, given that ‘Vergnügungsparks’ (amusement parks) may be both 
static and mobile, is whether the BFH’s argument that the distinction between 
‘Jahrmärkte’ (fairs) and ‘Vergnügungsparks’ (amusement parks) in Annex III(7) 
to Directive 2006/112 militates in favour of the permissibility of treating [those 
venues] differently for turnover-tax purposes, can be regarded as valid. 
The different contexts of the supplies of services 
10 The BFH also invokes the fact that the services provided by a static fairground 
undertaking in the form of a theme park and those provided by fairground 
entertainers who carry on their itinerant trade at fairs are dissimilar on account of 
the different contexts in which the supplies of services are effected. There is, in its 
view, no doubt that the context of a time-limited funfair or fair is different from 
that of a static amusement park, including in particular from the point of view of 
the recipient of the services. 
11 The referring court notes in this regard that, in accordance with the case-law of the 
Court of Justice (judgment of 27 February 2002, Commission v France, C-302/00, 
EU:C:2002:123, paragraph 23), the concept of the similarity of services must be 
interpreted widely. 
12 To that effect, the Court of Justice has held (judgment of 10 November 2011, The 
Rank Group, C-259/10 and C-260/10, EU:C:2011:719, paragraph 50) that, having 
regard to the specific characteristics of the sectors in question, differences in the 
regulatory framework or the legal regime governing the supplies of goods or 
services in question, as the context of the services to be compared, may, in certain 
exceptional cases, have the result that that context may create a distinction in the 
eyes of the consumer, in terms of the satisfaction of his own needs (see also 
judgments of 23 April 2009, TNT Post UK, C-357/07, EU:C:2009:248, 
paragraphs 38, 39 and 45, and of 27 February 2014, Pro Med Logistik and 
Pongratz, C-454/12 and C-455/12, EU:C:2014:111, paragraph 52 et seq.). 
13 The referring court is uncertain whether that case-law is applicable in the present 
case. Unlike in the situations adjudicated upon by the Court of Justice, the 
contexts of the two supplies of fairground entertainment services are not 
characterised by the fact that each supply is governed by different legal 
framework conditions. Thus, the law does not prescribe, either for fairground 
undertakings such as that operated by the applicant or for fairground entertainers 
at fairs, whether they must charge a [single] admission fee for the use of all 
fairground entertainment services or charge for each fairground entertainment 
service individually. Moreover, rides at both theme parks and fairs are subject to 
the same safety standards. Neither does the law prescribe, either for static 
fairground undertakings or for mobile fairground entertainers, when in the year 
they must provide their services. 
PHANTASIALAND 
 
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The ‘point of view of the average consumer’ and the gathering of evidence in 
this regard 
14 The BFH also cites the fact that the differences which, in its view, exist between 
the supply of services by static fairground undertakings in the form of theme parks 
and the supply of services by fairground entertainers at fairs exert a not 
inconsiderable influence on the average consumer’s decision to choose one or the 
other of those supplies of services. Its judgment might support the inference that 
the essential difference lies not only in the static nature of the fairground 
entertainment services, but also in the fact that a static fairground undertaking 
whose operations are not time limited does not serve the purpose of providing all-
round public entertainment – as fairground entertainers who travel from one fair to 
another do – and cannot therefore be classified as an event similar to a funfair. 
15 It should be borne in mind that, even in the BFH’s view, the average consumer 
uses fairground entertainment services in both venues, at fairs and in theme parks. 
It is true that the average consumer will encounter only one fairground 
undertaking at a theme park, but will encounter a variety of fairground 
entertainers at a fair. Consequently, there are perceptible differences as regards 
accessibility in terms of location and opening times and atmosphere. However, it 
follows from the case-law of the Court of Justice (judgments of 10 November 
2011, The Rank Group, C-259/10 and C-260/10, EU:C:2011:719, paragraph 47, 
and of 17 February 2005, Linneweber and Akritidis, C-453/02 and C-462/02, 
EU:C:2005:92, paragraphs 29 and 30) that those aspects, which must be 
distinguished from the legal context of the supply of services, are of no relevance 
to the question of the comparability of the services. 
16 The referring court takes the view that, on the assumption that there is no 
difference between the context of the services provided by mobile fairground 
entertainers at fairs and [that of the services provided by] static fairground 
undertakings such as the applicant’s theme park, the key criterion is, from the 
point of view of the current average consumer, which needs are met at fairs, on 
the one hand, and at a theme park, on the other, and whether they are met to the 
same extent at a fair and at a theme park. 
17 Once those needs have been clarified, it would be necessary to determine whether, 
for the average consumer, fairground entertainment services at fairs and in theme 
parks meet the same needs in terms of the similarity and comparability of their 
use, and whether or not any differences between them have a significant influence 
on the decision of the average consumer to choose the services available at a fair 
or in a theme park (judgments of 10 November 2011, The Rank Group, C-259/10 
and C-260/10, EU:C:2011:719, paragraph 44; of 11 September 2014, K, 
C-219/13, EU:C:2014:2207, paragraph 25; and of 9 November 2017, AZ, 
C-499/16, EU:C:2017:846, paragraph 31). 
18 The referring court considers that it would be able to make that determination only 
by seeking an expert opinion, since its own expertise is not so extensive as to 
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afford it an understanding of the needs of the average fair and theme park visitor 
that is as comprehensive as it needs to be. 
19 It is questionable, however, whether the referring court is entitled to gather such 
evidence. The BFH – unlike the Bundesverwaltungsgericht (Federal 
Administrative Court, Germany), whose position is in line with that of the Court 
of Justice (judgment of 16 July 1998, Gut Springenheide and Tusky, C-210/96, 
EU:C:1998:369, paragraphs 14, 15 and 35) – has held that gathering evidence 
based on empirical studies into the ‘point of view of the average consumer’ on 
two supplies of services in the context of the principle of fiscal neutrality is 
unnecessary, since such views represent only a conceptual perspective. 
20 However, the meaning of the concept of ‘conceptual perspective’ is unclear to the 
adjudicating Chamber. If it is supposed to mean that the ‘point of view of the 
average consumer’ is an objectified consumer concept that is amenable to legal 
interpretation alone, this would not explain why the point of view of the financial 
courts or the BFH should ultimately become the ‘point of view of the average 
consumer’, when it is the average consumer’s point of view that falls to be 
determined in the context of an examination of the principle of fiscal neutrality in 
a given dispute (see, in this regard, judgment of 19 December 2019, Segler-
Vereinigung Cuxhaven, C-715/18, EU:C:2019:1138, paragraph 37).