Order — ECLI:EU:C:2019:840
Date: 2019-10-07
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Taxation;Value added tax
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: 
25 January 2019 
Referring court: 
Finanzgericht Hamburg (Finance Court, Hamburg, Germany) 
Date of the decision to refer: 
14 December 2018 
Applicant: 
HA 
Defendant: 
Finanzamt Hamburg-Barmbek-Uhlenhorst (Tax and Revenue 
Office, Hamburg-Barmbek-Uhlenhorst, Germany) 
      
Subject matter of the main proceedings 
Exemption of surfing and sailing tuition for pupils and students from value added 
tax 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 of the Treaty on the Functioning of the 
European Union (‘TFEU’). 
Questions referred for a preliminary ruling 
1. Does the concept of school and university education in Article 132(1)(i) and 
(j) of Council Directive 2006/112/EC of 28 November 2006 on the common 
system of value added tax (‘Directive 2006/112’) also include surfing and 
sailing tuition? Is it sufficient if such tuition is offered in at least one school 
or university in the Member State? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-47/19 
 
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2. In order to find that there is school or university education within the 
meaning of Article 132(1)(i) and (j) of Directive 2006/112 is it necessary for 
the tuition to be included as part of the students’ grades, or is it sufficient if 
the surfing or sailing course takes place in the context of organised school or 
university activities, such as a class trip? 
3. Is it possible for a surfing and sailing school to be recognised as an 
organisation with a similar object within the meaning of Article 132(1)(i) of 
Directive 2006/112 on the basis of the regulations regarding school or 
university law, whereby even external surfing and sailing courses form part 
of physical education or the university education of physical education 
teachers where a grade or some other certificate of achievement is awarded, 
and/or on the basis of a public interest in sporting activities? Is a direct or 
indirect absorption of the costs of the courses by the school or university 
necessary for such recognition? 
4. Do surfing or sailing courses in the context of a class trip represent the 
supply of a service closely linked to the protection of children and young 
persons within the meaning of Article 132(1)(h) of Directive 2006/112? If 
so, is it necessary for that protection to last for a specific period of time? 
5. Does the wording ‘tuition given privately by teachers and covering school or 
university education’ in Article 132(1)(j) of Directive 2006/112 require that 
the taxable person give the tuition himself?     
Provisions of EU law cited 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Article 132(1)(h), (i), (j) and (m)  
Provisions of national law cited 
Umsatzsteuergesetz (Value Added Tax Act; ‘the UStG’), Paragraph 4(21), (23) 
Hamburger Schulgesetz (Hamburg Schools Act) of 16 April 1997 
(Hamburgisches Gesetz- und Verordnungsblatt; Hamburg Law and Ordinance 
Gazette; ‘HmbGVBl.’), p. 97), last amended on 15 September 2016 (HmbGVBI. 
p. 441) 
(Hamburg) Guidelines for school trips of 20 April 2016 
Brief summary of the facts and procedure 
1 The applicant operates two surfing and sailing schools, one of which is located on 
the island of Fehmarn, which is part of the Federal State of Schleswig-Holstein, 
and the other of which is in Hamburg. The surfing courses that he offers are for 
FINANZAMT HAMBURG-BARMBEK-UHLENHORST (TAX OFFICE, HAMBURG-BARMBEK-UHLENHORST), 
 
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twelve hours’ tuition, spread over four to five days or a weekend. In the high 
season, up to five surfing and sailing instructors work for him in Hamburg and up 
to ten instructors on Fehmarn. He also offers accommodation options on Fehmarn. 
The applicant teaches 10% of the courses himself. In addition, he is responsible 
for organisation, coordination and supervision. In the years in question, 2008 to 
2010, he achieved revenue from surfing and catamaran courses, as well as board 
and lodging for course participants and other persons, courses for holidaymakers, 
rental and sale of surfing articles in his shops, and sale via the internet. The 
applicant additionally runs a café at his premises in Hamburg. 
2 The applicant conducted surfing and sailing courses with school classes and 
school sports groups. Surfing and sailing tuition forms part of the school sports 
curriculum at some schools. In that case, the surfing and sailing courses are 
included in the students’ grades. 80% of the school trips were class trips and 20% 
were trips by school sports groups. In the case of 10% of the sports trips, the 
schools refunded the costs for the surfing and sailing courses. In respect of class 
trips, there is the possibility of receiving subsidies from the job centre in the 
context of the education and participation benefits package. 
3 The applicant also conducted courses with universities. In some cases, such 
courses may be completed in the context of training as a physical education 
teacher. This accounted for 80% of the courses in the context of university trips. 
The remaining 20% was conducted in the context of the university ‘sport for all’ 
programme, that is to say with students studying a wide range of subjects. In the 
case of 50% of the trips conducted in the context of the physical education teacher 
training, the universities refunded the costs. 
4 All sports courses that were conducted in the context of sports teacher training and 
sports trips from schools ended with an examination; an examination did not 
necessarily have to be taken in the case of the other courses. However, 
certification from the competent authority of the Land in accordance with 
Paragraph 4(21) of the UStG that the applicant’s surf and sailing schools are in 
due preparation for a profession or for an examination to be taken before a legal 
person governed by public law does not exist. The applicant also does not run a 
state-approved private school (a private school authorised as an alternative to 
public schools within the meaning of Article 7(4) of the Grundgesetz (Basic Law 
of the Federal Republic of Germany). 
5 In the years in question, the applicant declared not only taxable but also tax-
exempt transactions, in particular in respect of the surfing and sailing courses that 
he conducted with school classes and groups from universities. The majority of 
the tax-exempt transactions relate to transactions for tuition. 
6 The defendant takes the view that the transactions in question were not exempt. 
The applicant filed a notice of opposition against the relevant decisions (now in 
the form of the amendment decisions of 25 July 2018) and filed an action at the 
referring court after the refusal thereof. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-47/19 
 
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7 The applicant accordingly requests that the VAT notices for 2008, 2009 and 2010, 
in each case of 25 July 2018, be amended to the effect that 
1) the revenue that he has achieved by conducting surfing and sailing courses, 
and 
2) the revenue that was achieved by providing board and lodging to the course 
participants 
remain exempt from VAT. 
8 The defendant requests that the action be dismissed. 
Brief summary of the basis for the reference 
9 Under national law, in this case Paragraph 4(21) and (23) of the UStG, the 
conditions for tax exemption are not present. Firstly, the applicant is neither 
approved as a private school nor certified as preparing for a profession or an 
examination. Secondly, his premises in Hamburg already lacks the necessary 
accommodation for students and in Schleswig-Holstein the housing therefor, since 
this requires comprehensive supervision with assumption of full responsibility. 
However, the teacher (of the school) is essentially responsible for the supervision 
of students in accordance with the relevant provisions of the Länder in question 
(for example: Hamburg Schools Act and the Guidelines for school trips based 
thereon). Nevertheless, the applicant may possibly rely on EU law. 
The first question 
10 It could be possible to classify the applicant’s activity at least in subsectors as 
school and university education within the meaning of Article 132(1)(i) and (j) of 
Directive 2006/112. According to the case-law of the Court of Justice, that 
concept, which is not defined in the Directive itself, is not limited only to 
education which leads to examinations for the purpose of obtaining qualifications 
or which provides training for the purpose of carrying out a professional or trade 
activity, but includes other activities which are taught in schools or universities in 
order to develop pupils’ or students’ knowledge and skills, provided that those 
activities are not purely recreational (judgments of 14 June 2007, Haderer, 
C-445/05, EU:C:2007:344, paragraph 26, and of 28 January 2010, Eulitz, 
C-473/08, EU:C:2010:47, paragraph 29). 
11 However, it is questionable whether a VAT exemption for all courses should be 
concluded from the basic possibility of providing a surfing or sailing course to at 
least one school or university or whether only the courses that are conducted in the 
context of organised school or university activities are exempt. In the first case, a 
delimitation from recreational purposes would hardly be possible. Virtually all 
types of sports or even other activities (such as cooking, juggling, acrobatics, 
dance, theatre, literature) are offered as a course by at least one school. Such a 
FINANZAMT HAMBURG-BARMBEK-UHLENHORST (TAX OFFICE, HAMBURG-BARMBEK-UHLENHORST), 
 
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broad interpretation could also be contrary to the assessment of Article 132(1)(m) 
of Directive 2006/112, under which the supply of services by profit-making 
organisations to persons taking part in sport or physical education are not intended 
to be exempted from VAT. 
The second question 
12 The Court is of the opinion that activities such as class trips where a surfing 
course is offered can constitute education even if the course does not count 
towards the students’ school grades. Even such school activities that do not count 
towards students’ grades contribute, as provided for in the Guidelines for school 
trips, to the development of school life and promote pupils’ social skills. 
However, the Court tends to believe that only mandatory school activities should 
be exempted from VAT, as otherwise the exemption rules would be interpreted 
too broadly. 
The third question 
13 According to the case-law of the Court of Justice, the word ‘organisation’ is in 
principle sufficiently broad to encompass private entities carrying out activities 
with a view to profit, like that of the applicant (judgments of 21 January 2016, Les 
Jardins de Jouvence, C-335/14, EU:C:2016:36, paragraph 39; of 28 November 
2013, MDDP, C-319/12, EU:C:2013:778, paragraph 28; and of 26 May 2005, 
Kingscrest Associates und Montecello, C-498/03, EU:C:2005:322, paragraph 35). 
14 In respect of the subsequent question as to whether such a private organisation 
furthermore pursues a similar object to the corresponding public organisations 
within the meaning of Article 132(1)(i) of Directive 2006/112, the case-law 
relating to entrepreneur-related recognition in the charity sector 
(Article 132(1)(g)) can essentially be transferred to the education sector. 
According to this case-law, the factors to be taken into account for the recognition 
as such an organisation in the context of a consideration include the existence of 
specific provisions, be they national or regional, legislative or administrative, or 
tax provisions; the public interest nature of the activities of the taxable person 
concerned; the fact that other taxable persons carrying on the same activities 
already enjoy similar recognition; and the fact that the costs of the supplies in 
question may be largely met by health insurance schemes or other social security 
bodies (judgment of the Court of Justice of 15 November 2012, Zimmermann, 
C-174/11, EU:C:2012:716, paragraph 31). 
15 The Court takes the view that recognition as an organisation with a similar object 
does not exclude the fact that the cost of the supplies provided are not largely 
borne by government funders in the present case, because that is only one factor 
among others (judgement of 21 January 2016, Les Jardins de Jouvence, C-335/14, 
EU:C:2016:36, paragraph 39). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-47/19 
 
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16 The fact that under the regulations regarding school law external surfing or sailing 
courses may also form part of physical education and in that context be included 
in pupils’ grades could argue in favour of recognition. This makes plain that the 
State recognises the tuition provided by the applicant in a school context, even if 
the surfing and sailing instructors do not independently issue grades, but can only 
give recommendations in this regard. The same applies to the incorporation of 
surfing and sailing courses into the university education of physical education 
teachers that may sometimes occur. Regardless of this, and in spite of the public 
interest in participation in sports, with regard to the fact that in accordance with 
Article 132(1)(m) of Directive 2006/112 services linked to sport or physical 
education are only exempt from VAT when they are provided by non-profit-
making organisations, the Court nonetheless has doubts about recognising the 
applicant as an organisation with a similar object. 
The fourth question 
17 The Court tends to regard the surfing and sailing courses conducted by the 
applicant as being services closely linked to the protection of young persons. 
However, there are good arguments in favour of a restrictive interpretation, to the 
effect that the conditions provided in this respect in Article 132(1)(h) of 
Directive 2006/112 are only satisfied if the protecting person has an exclusive 
supervisory duty and the protection lasts for a specific period of time, such that a 
weekend course or a course lasting only 12 hours does not constitute protection 
within the meaning of this rule. 
18 It is also questionable whether the requirements made of the concept of an 
organisation within the meaning of Article 132(1)(h) of Directive 2006/112 are 
different to those of Article 132(1)(i) and whether the latter provision is lex 
specialis in relation to Article 132(1)(h). 
The fifth question 
19 The applicant gave the surfing and sailing tuition ‘privately’, because he provided 
it at his own account and at his own risk and there was a direct link between the 
actual content of the tuition that he gave and his qualifications (cf. judgment of 
14 June 2007, Haderer C-445/05, EU:C:2007:344, paragraphs 30, 31). However, 
the Court has doubts as to whether it is consistent with the objective of 
‘Exemptions for certain activities in the public interest’ as stated in the heading of 
Chapter 2 in Title IX of Directive 2006/112 for any education or training offered 
in this way, which is not purely recreational, to be exempted in accordance with 
Article 132(1)(j) of this Directive. 
20 It is also doubtful whether the formulation ‘given privately’ requires that the 
tuition be given by the taxable person himself, or whether the taxable person can 
also delegate the tuition to the instructors that he employs or even to 
subcontractors. The Court tends toward a narrow interpretation in this respect.