Judgment — ECLI:EU:C:2011:719
Date: 2011-11-10
Language of the case: English
Court formation: Third Chamber
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 – Supply of services – Difference in treatment of two supplies of services identical or similar from the point of view of the consumer – Breach of the principle of fiscal neutrality (Council Directive 77/388) 2. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions – Exemption for games of chance – Power of the Member States to fix the conditions and the limits of that exemption – Limits – Observance of the principle of fiscal neutrality (Council Directive 77/388, Art. 13B(f)) 3. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions – Exemption for games of chance – Power of the Member States to fix the conditions and the limits of that exemption – Limits – Observance of the principle of fiscal neutrality (Council Directive 77/388, Art. 13B(f)) 4. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions – Exemption for games of chance – Power of the Member States to fix the conditions and the limits of that exemption – Limits – Observance of the principle of fiscal neutrality (Council Directive 77/388, Art. 13B(f)) 5. Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Exemptions – Exemption for games of chance – Power of the Member States to fix the conditions and the limits of that exemption – Limits – Observance of the principle of fiscal neutrality (Council Directive 77/388, Art. 13B(f)) 1. The principle of fiscal neutrality must be interpreted as meaning that a difference in treatment for the purposes of value added tax of two supplies of services identical or similar from the point of view of the consumer and meeting the same needs of the consumer is sufficient to establish an infringement of that principle. Such an infringement thus does not additionally require the actual existence of competition between the services in question or distortion of competition because of such difference in treatment to be established. (see para. 36, operative part 1) 2. Where there is a difference in treatment of two games of chance as regards the granting of an exemption from value added tax under Article 13B(f) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, the principle of fiscal neutrality must be interpreted as meaning that no account should be taken of the fact that those two games fall into different licensing categories and are subject to different legal regimes relating to control and regulation. That provision leaves a broad discretion to the Member States as regards the exemption or the taxation of the transactions concerned since it allows those States to fix the conditions and the limitations to which entitlement to that exemption may be made subject, provided that the principle of fiscal neutrality is observed. In assessing whether two games of chance are similar, where a difference in treatment is such as to establish a breach of the principle of fiscal neutrality, matters such as whether or not the operation of games of chance is legal, the identity of the operators of the games and the legal form by means of which they exercise their activities are, as a rule, irrelevant. The same is true of the differences between public houses/bars and amusement arcades on the one hand, and licensed casinos on the other, as regards the setting in which games of chance are available, in particular accessibility in terms of location and opening times and the atmosphere. Finally, the fact that only one of two types of game is subject to an unharmonised tax is not such as to justify the conclusion that those types of game are not comparable. (see paras 40-41, 45-48, 51, operative part 2) 3. In order to assess whether, in the light of the principle of fiscal neutrality, two types of slot machine are similar and require the same treatment for the purposes of value added tax it must be established whether the use of those types of machine is comparable from the point of view of the average consumer and meets the same needs of that consumer, and the matters to be taken into account in that connection are, inter alia, the minimum and maximum permitted stakes and prizes and the chances of winning. (see para. 58, operative part 3) 4. The principle of fiscal neutrality must be interpreted as meaning that a taxable person may not claim reimbursement of the value added tax paid on certain supplies of services in reliance on a breach of that principle where the tax authorities of the Member State concerned have, in practice, treated similar services as exempt supplies, although they were not exempt from value added tax under the relevant national legislation. Although a public authority following a general practice may be bound by that practice, the fact remains that the principle of equal treatment, which is reflected, in matters relating to value added tax, by the principle of fiscal neutrality, must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. It follows that a taxable person may not demand that a certain supply be given the same tax treatment as another supply, when such treatment is incompatible with the relevant national legislation. (see paras 61-64, operative part 4) 5. The principle of fiscal neutrality must be interpreted as meaning that a Member State which has exercised its discretion under Article 13B(f) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes and has exempted from value added tax the provision of all facilities for playing games of chance, while excluding from that exemption a category of machines which meet certain criteria, may not contest a claim for reimbursement of value added tax based on the breach of that principle by arguing that it had responded with due diligence to the development of a new type of machine not meeting those criteria. The direct effect of a provision of a directive, such as that of Article 13B(f) of the Sixth Directive 77388, depends neither on the existence of a deliberate wrongful act or negligence by the Member State concerned when transposing the directive at issue into national law, nor on the existence of a sufficiently serious breach of Union law. Accordingly, that provision may be relied on before the national courts by an operator of games of chance or gaming machines in order to prevent the application of rules of national law incompatible with that provision. (see paras 69-70, 74, operative part 5)