Case C‑461/12

Granton Advertising BV

v

Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag

(Request for a preliminary ruling from the Gerechtshof ’s-Hertogenbosch)

‛Reference for a preliminary ruling — Sixth VAT Directive — Exemptions — Article 13(B)(d)(3) and (5) — ‘Other securities’ and ‘other negotiable instruments’ — Sales promotion scheme — Discount card — Taxable amount’

Summary — Judgment of the Court (Fifth Chamber), 12 June 2014

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

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

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)

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)