Opinion of the Advocate General — ECLI:EU:C:2013:700
Date: 2013-10-24
Language of the case: Dutch
Subject matter: Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fifth Chamber), 12 June 2014 1. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Sale of a card allowing participation in a sales promotion scheme — Taxable amount constituted by the sum of money actually received by the retailer (Council Directive 77/388, Art. 11(A)(3)(b)) 2. Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Meaning — Sale of a card allowing participation in a sales promotion scheme — Price discounts granted by affiliated businesses — Not included 3. Harmonisation of fiscal legislation — Common system of value added tax — Exemptions provided for in the Sixth Directive — Financial transactions referred to in Article 13(B)(d)(3) and (5) — Sale of a card allowing participation in a sales promotion scheme — Not included (Council Directive 77/388, Article 13(B)(d)(3) and (5)) 1. The use of a card sold to consumers by an undertaking and allowing the card holder to obtain goods or services offered by the affiliated businesses on preferential terms, agreed between those businesses and the undertaking which issued the card, cannot be considered a ‘payment’ for the purpose of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, since it is actually a price reduction. Upon presentation of that card by its holder, the affiliated business refrains from charging a part of the normal price, with the result that the card holder does not pay the amount of that reduction. The fact that the affiliated business agrees to forego the sum represented by the discount obtained under those preferential terms constitutes a price discount, within the meaning of Article 11(A)(3)(b) of the Sixth Directive. Such a discount covers, in particular, the difference between the normal retail selling price of the goods supplied and the sum of money actually received by the retailer and is not to be included in the taxable amount of the transaction in question. (see paras 18, 19, 22) 2. The price discounts granted by the affiliated businesses are not included in the taxable amount of any transactions between those businesses and the holders of a card issued by an undertaking and allowing the card holder to obtain goods or services offered by the affiliated businesses on preferential terms, agreed between those businesses and the undertaking that issued the card. The amounts paid by the consumers to the abovementioned undertaking in order to acquire its card cannot be considered as indirectly constituting the consideration, or a part thereof, for the benefits that those consumers may subsequently receive from the affiliated businesses. There is no sufficiently direct link between the amount paid by those consumers in order to obtain that card and the goods or services which may be obtained by those consumers from the affiliated businesses. In that respect, aside from the fact that there is no contract between the holders of those cards and the affiliated businesses and that those businesses do not receive any part of the revenue obtained by the issuing undertaking from the sale of those cards, the necessary link does not exist between the payment by the consumer to the issuing undertaking in order to obtain a card and the amount of the reductions which that consumer may subsequently obtain from the affiliated businesses. The amount of the reductions that may be obtained, which depends, inter alia, on the use of that card and on the availability of offers from the affiliated businesses, is uncertain and practically impossible to determine in advance (see paras 18, 20-22) 3. Article 13(B)(d) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the sale of a discount card by an undertaking allowing its holder to obtain goods or services offered by the affiliated businesses on preferential terms, agreed between those businesses and the undertaking that issued the card, does not constitute a transaction in ‘other securities’ or concerning ‘other negotiable instruments’, within the meaning, respectively, of paragraphs 5 and 3 of that provision, which refers to certain transactions which the Member States must exempt from value added tax. Those terms are to be interpreted strictly since they constitute exceptions to the general principle that value added tax is levied on all services supplied for consideration by a taxable person. In that respect, transactions exempt from VAT under Article 13(B)(d) of the Sixth Directive are, by their nature, financial transactions. Although those transactions, defined according to the nature of the services provided, do not necessarily have to be carried out by banks or other financial institutions, they relate, nevertheless, as a whole, to the sphere of financial transactions. The card in question confers on its holder only a right to obtain reductions in the prices of goods and services offered by the affiliated businesses. First, it has no nominal value and it cannot be exchanged for money or goods from the affiliated businesses. Secondly, although that card entitles its holder to price reductions, it does not constitute, in itself, a payment instrument for the purpose of that directive. In particular, even if such a card is transferrable and may be resold at a certain price, it does not operate as a way of transferring money, unlike payments, transfers and cheques. Thus, the sale of such a card to consumers does not constitute, by its nature, a financial transaction. (see paras 18, 25, 29, 31, 32, 37, 39, operative part)