Opinion of the Advocate General — ECLI:EU:C:2002:654
Date: 2002-11-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary 80. To sum up, I would answer the first question referred by the national court in the affirmative on the basis of the following findings: - the service supplied by a performer to the organiser of a performance may, like the service which the organiser supplies to the public, fall within the scope of Article 13A(1)(n) of the Sixth Directive. - the Member States have wide discretion to recognise cultural bodies other than public bodies as eligible for the VAT exemption. They may use the non-commercial or commercial nature of a cultural body as a criterion. - Their discretion is wide, but not unrestricted. It is subject to general principles of Community law such as effectiveness and the principle of fiscal neutrality. - A soloist may be regarded as a cultural body within the meaning of Article 13A(1)(n) of the Sixth Directive provided that he acts outwardly as an entity and provided that the service on which VAT is or is not levied is an individualised service. - The absolute exclusion of soloists by a national rule does not impair the effectiveness of the Sixth Directive. Such a rule does infringe the principle of fiscal neutrality. Exclusion is therefore contrary to Community law, save where there is special justification. VI - Assessment of the second question 81. As I have answered the first question in the affirmative, it is also necessary to answer the second question referred by the national court. 82. This question relates to the restriction of the exemption provided for in Article 13A to activities in the public interest. The term public interest is used in the heading of the article. 83. Mr Hoffmann points out that the various exemptions listed in Article 13A are worded precisely and that they all entail a subsidy with a view to the public interest. The German Government's observations tend in the same direction, given that they point out that the heading does not entail any restriction at all on the Member State when it is transposing the provision into national law. In the view of the United Kingdom and Netherlands Governments, on the other hand, it follows from the term public interest that bodies which systematically aim to make a profit may not be exempted. The Commission refers in connection with the second question to Article 13A(2). This forms the basis on which to exclude commercial bodies from the exemption. 84. I would point out to begin with that the heading of an article does not form part of the regulatory part of a body of rules. Like the title of the body of rules as a whole or of a part of it, the title (the heading) of an Article describes the subject-matter of what follows. A title is explanatory in nature. The essential difference between the regulatory part of a body of rules and the explanatory part is expressed well in the Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation. (36) Nevertheless, the legislature's intention can be inferred from the title of a provision. In that sense, such a title may play a part in the Court's assessment. I also interpret the term public interest contained in the title of Article 13A in that way. The term therefore does not entail any direct restriction, but does determine the interpretation of the exemptions listed in Article 13. 85. That being said, the heading concerned in the present case has no independent meaning. I would refer in this connection to the wording of Article 13A(1)(n). That provision relates only to cultural services supplied by certain cultural bodies. The requirement that both the service and the body must be of a cultural nature means of itself that the exemption relates to the public interest. I concur with the contribution made by Hoffmann and the German Government. 86. Moreover, the term public interest can also be interpreted in a second way in this context, namely as a non-commercial interest. The discussion of the first question gives a sufficiently definite answer as regards that interpretation as well. Indeed, the Court has pointed out that the purpose of the VAT exemptions is to provide more favourable treatment, in the matter of VAT, for certain organisations whose activities are directed towards non-commercial purposes. That purpose is also expressed in the conditions which a Member State may, on the basis of Article 13A(2), impose on the exemption of bodies not governed by public law. (37) The heading has no independent meaning in this respect, however, since, as I said previously when answering the first question, commercial bodies are not excluded by their nature. To put it more strongly, the conditions set out in Article 13A(2), which have as their object to give the Member States the power to exclude commercial bodies, are of an optional nature. That paragraph (2) removes any doubt: Article 13A(1)(n) does not preclude commercial bodies - which therefore do not act in the public interest in the restricted sense referred to here - from benefiting from the exemption as well. 87. To sum up: - the term public interest in the title of Article 13A has no independent meaning. - the Sixth Directive does not exclude commercial bodies from the exemption by virtue of their nature. VI - Conclusion On the basis of the foregoing considerations I propose that the Court give the following answer to the questions referred by the Bundesgerichtshof: - As regards the first question: A soloist may be regarded as a cultural body within the meaning of Article 13A(1)(n) of the 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, provided that he appears outwardly as an entity and the service on which VAT is or is not levied is an individualised service. The absolute exclusion of soloists in a national rule does not impair the effectiveness of the Sixth Directive. Such a rule does infringe the principle of fiscal neutrality. Exclusion is therefore contrary to Community law, save where there is special justification. - As regards the second question: the term public interest in the title of Article 13A has no independent meaning. 1: - Original language: Dutch. 2: - OJ 1977 L 145, p. 1. 3: - Case C-216/97 Gregg v Commissioners of Customs & Excise [1999] ECR I-4947. 4: - In the version of 24 March 1999, BGBl. I, p. 402. 5: - That obligation follows from Paragraph 18(8) of the Law and from implementing legislation. That obligation is not under discussion in the proceedings before the Court. 6: - Case C-453/93 Bulthuis-Griffioen v Inspecteur der Omzetbelasting [1995] ECR I-2341. 7: - Cited in footnote 3. 8: - Case C-287/00 [2002] ECR I-5811, paragraph 38 et seq. 9: - See in this regard inter alia my Joined Opinion in Cases C-345/99 and C-40/00 Commission v France [2001] ECR I-4493 and I-4539, point 35 et seq. 10: - See inter alia the judgments in Cases 268/83 Rompelmann [1985] ECR 655, paragraph 19; 50/87 Commission v France [1988] ECR 4797, paragraph 15, and C-37/95 Ghent Coal Terminal [1998] ECR I-1, paragraph 15. 11: - Paragraphs 44 and 45 of the judgment. 12: - Judgment in Case C-174/00 Kennemer Golf [2002] ECR I-3293, paragraph 19. 13: - Opinion in Case C-169/00 [2002] ECR I-2433. 14: - See the judgment in Case 107/84 Commission v Germany [1985] ECR 2655, paragraph 13, and paragraph 13 of the Gregg judgment, cited in footnote 3. 15: - Cited in footnote 3. 16: - See on these lines also the judgment in Case C-141/00 Ambulanter Pflegedienst Kügler [2002] ECR I-6833, paragraph 30. 17: - Judgment in Case C-124/96 [1998] ECR I-2501, paragraphs 11 and 12. 18: - As follows from paragraph 18 of the Commission v Spain judgment cited in footnote 17. 19: - Cited in footnote 12, in particular paragraph 32 et seq. 20: - Judgment in Case C-267/00 Zoological Society [2002] ECR I-3353, in particular paragraph 20 et seq. 21: - In the Dutch version of the text the word instelling is used in item (n), while in other parts of Article 13A(1) inrichting and organisatie are used. There is no significance in this terminological difference. In many language versions (including the French, English and German language versions) this difference is not made. Moreover, it can also be inferred from Gregg that the same thing is meant. 22: - See more extensively on this subject Terra and Kajus, Commentary on the Value Added Tax of the European Community, IBFD Publications 1993, Volume 2, p. 83. 23: - According to the wording introduced by Council Directive 92/111/EEC of 14 December 1992 amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax (OJ 1992 L 384, p. 47). 24: - I am using here the Court's wording, which was discussed in point 33 of this Opinion. 25: - It is not apparent from the legislative history of the Directive as described in Terra and Kajus, loc. cit., that the Community legislature set out to make an express distinction between the terms. 26: - See point 38 of this Opinion. 27: - See regarding this principle point 34 of this Opinion. 28: - See point 37 et seq. of this Opinion. 29: - Cited in footnote 13; point 41 of that Opinion. 30: - See point 43 of this Opinion. 31: - In Commission v Spain (cited in footnote 17), for example, the Court defined the following limit: the criteria which the Member States use must not affect the substantive scope of the exemption by resulting in certain cultural services being excluded from the VAT exemption. 32: - Case C-305/97 Royscot and Others [1999] ECR I-6690, paragraph 24. 33: - At the hearing of the Court the German Government used the term Mindestkonvergenz. 34: - Guidelines of the Advisory Committee provided for in Article 29 of the Directive, issued at the 41st meeting on 28 February and 1 March 1994. 35: - See in particular Kennemer Golf, cited in footnote 12. 36: - OJ 1999 C 73, p. 1. 37: - See the much-cited Kennemer Golf judgment referred to in footnote 12, paragraph 19.