Case C‑440/12

Metropol Spielstätten Unternehmergesellschaft (haftungsbeschränkt)

v

Finanzamt Hamburg-Bergedorf

(Request for a preliminary ruling from the Finanzgericht Hamburg)

‛Taxation — VAT — Betting and gaming — Legislation of a Member State under which VAT and a special tax are to be levied cumulatively on the operation of low-prize slot machines — Whether permissible — Basis of assessment — Whether the taxable person can pass on the VAT’

Summary — Judgment of the Court (First Chamber), 24 October 2013

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — National system regulating an unharmonised tax — Setting the value added tax owed against that tax

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — National legislation under which value added tax and a special tax are to be levied cumulatively on the operation of low-prize slot machines which does not prevent that value added tax from being passed on to the final consumers

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Operation of gaming machines offering the possibility of winnings — National legislation or practice whereby the amount of the cash receipts is used after a set interval as the basis of assessment — Whether permissible

Harmonisation of fiscal legislation — Common system of value added tax — Taxable amount — Provision of services — Consideration actually received by the provider — Slot machines — Exclusion of the fixed percentage of stakes inserted which must be paid out to the players as winnings

Harmonisation of fiscal legislation — Common system of value added tax — Exemptions — Exemption of betting, lotteries and other forms of gambling — Article 401 of Directive 2006/112 — Scope — Possibility of value added tax and a special national tax being levied cumulatively on games of chance — Whether permissible — Condition

Article 401 of Directive 2006/112 on the common system of value added tax, read in conjunction with Article 135(1)(i) thereof, must be interpreted as meaning that value added tax and a special national tax on games of chance may be levied cumulatively, provided that the special national tax cannot be characterised as a tax on turnover. As regards betting and gaming, Article 135(1)(i) of Directive 2006/112 — which provides, inter alia, that forms of gambling may be exempted from value added tax ’subject to the conditions and limitations laid down by each Member State’ — must be interpreted as meaning that the exercise of the discretionary power of the Member States to fix conditions and limitations on the value added tax exemption provided for under that provision allows those States to exempt from that tax only certain forms of betting and gaming. In that regard, the fact that the amount of an unharmonised tax on betting and gaming, payable by certain organisers and operators of forms of betting and gaming subject to value added tax, may be adjusted according to the value added tax owed in respect of that activity, is irrelevant in the light of the principle of fiscal neutrality. (see paras 29, 30, 32, operative part 1)

See the text of the decision. (see paras 38, 40)

The first sentence of Article 1(2) and Article 73 of Directive 2006/112 on the common system of value added tax must be interpreted as not precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winnings, the amount of the cash receipts from those machines is used after a set interval as the basis of assessment. In that regard, a tax practice of using the monthly cash receipts — the amount of which depends on the winnings and losses of the various players — as the basis of assessment for transactions carried out using gaming machines cannot be said to infringe EU law simply because there is no correlation, in terms of proportionality, between the value added tax which may be charged and the specific stakes inserted by individual players. (see paras 39, 44, operative part 2)

Legislation of a Member State which limits low-prize slot machine users’ losses does not prevent value added tax from being passed on to the final consumers. Indeed, such legislation, to the extent that it takes the net cash receipts as the taxable amount for the purposes of value added tax ensures that the taxable amount includes only the revenue actually obtained by the gaming machine operator and that the value added tax owed as a result of applying the statutory value added tax rate to the taxable amount (net cash) has also actually been paid by the final consumers. (see paras 48, 51, 52)