CELEX: 62002CC0453
Language: en
Date: 2004-07-08 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 8 July 2004. # Finanzamt Gladbeck v Edith Linneweber (C-453/02) and Finanzamt Herne-West v Savvas Akritidis (C-462/02). # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Sixth VAT Directive - Exemption for games of chance - Determination of the conditions and limitations to which the exemption is subject - Liability of games organised outside public casinos - Respect for the principle of fiscal neutrality - Article 13B( f) - Direct effect. # Joined cases C-453/02 and C-462/02.

OPINION OF ADVOCATE GENERALSTIX-HACKLdelivered on 8 July 2004(1)
         Joined Cases C-453/02 and C-462/02Finanzamt Gladbeck v Edith Linneweber (C-453/02) and Finanzamt Herne-West Savvas Akritidis (C-462/02) (Reference for a preliminary ruling from the Bundesfinanzhof (Germany))Finanzamt Gladbeck v Edith Linneweber (C-453/02) and Finanzamt Herne-West Savvas Akritidis (C-462/02) (Reference for a preliminary ruling from the Bundesfinanzhof (Germany))
            (Tax law  –  Sixth VAT Directive  –  Article 13B(f)  –  Games of chance  –  Card games and gaming machines  –  Principle of fiscal neutrality  –  Similarity of games of chance)
            
      
         
      I –   Introduction 
      
        1.        The questions referred to the Court by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in these two joined
      cases concern the interpretation of Article 13B(f) of Sixth Directive 77/388/EEC 
         			(2)
         		 (‘Sixth Directive’).
      
      
        2.        These proceedings concern the extent to which a Member State may, under that provision, differentiate in the levying of value
      added tax between, on the one hand, games of chance organised lawfully or unlawfully outside a licensed public casino and,
      on the other hand, games of chance organised in a licensed public casino.
      
      
        3.        The Court is thus called upon to clarify further its ruling in the  Fischer  judgment 
         			(3)
         		 on the scope of the principle of fiscal neutrality with regard to the levying of VAT on games of chance.
      
      
      II –   Legislative background 
      
       A –  Community law 
      
        4.        Under the heading ‘Other exemptions’ Article 13B of the Sixth Directive provides inter alia for the following:
      ‘Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall
      lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible
      evasion, avoidance or abuse:
      …
      
      (f)
         betting, lotteries and other forms of gambling, subject to conditions and limitations laid down by each Member State;
      
      …’
      
      
       B –  National law 
      
        5.        Pursuant to Paragraph 4(9)(b) of the German Umsatzsteuergesetz (Turnover Tax Law) 1993 (‘UStG’) the following is exempt from
      tax:
      ‘turnover within the scope of the Rennwett- und Lotteriegesetz (Betting and Lotteries Act) and the turnover of licensed public
      casinos which arises through operation of the casino. ...’
      
      
      III –   Facts, proceedings and questions referred 
      
       A –  Case C-453/02 
      
        6.        Mrs Linneweber is the universal heir of her husband, the (original) taxpayer, who died in 1999. The latter provided, with
      official approval, gaming and entertainment machines for consideration in restaurants and amusement arcades owned by him.
      
      
        7.        Mrs Linneweber and the taxpayer declared the income from the operation of the gaming machines as tax-exempt turnover, whereas
      the Finanzamt (Tax Office) took the view that that income did not fall within the tax exemption under Paragraph 4(9)(b) of
      the UStG.
      
      
        8.        The Finanzgericht Finance Court at Münster, to which an application was subsequently made, ruled in favour of the exemption
      of the transactions in question, relying on the Court’s judgment in the  Fischer  case 
         			(4)
         		 and the interpretation therein of the principle of fiscal neutrality.
      
      
        9.        However, the Bundesfinanzhof, the referring court, before which the appeal against that ruling was brought, considers the
      exemption of the transactions under Article 13B(f) of the Sixth Directive allowed by the Finanzgericht to be open to question.
      The referring court points out that in the  Fischer  judgment the Court focused on the unlawful organisation of games of chance, whereas the present case concerns officially
      approved gaming machines. However, the gaming machines in public casinos generally differed considerably from the gaming machines
      installed in restaurants and commercial amusement arcades, especially with regard to stakes, winnings and the percentage of
      the stakes distributed as winnings.
      
      
        10.      The referring court questions the relevance in Community law of the distinction between lawful and unlawful games of chance.
      In its view, it is also conceivable that Article 13B(f) of the Sixth Directive must be interpreted as meaning that a Member
      State may not impose VAT on the (lawful or unlawful) operation of a game of chance when the  corresponding  activity carried on by a licensed public casino is exempted. 
      
      
        11.      In order to clarify the scope of the exemption, the Bundesfinanzhof referred the following questions to the Court for a preliminary
      ruling by order of 6 November 2002.
      
      1.
         Is Article 13B(f) of Directive 77/388/EEC to be interpreted as precluding a Member State from making the organisation of gambling
            subject to value added tax if it is exempt when organised by a licensed public casino?
         
      
      
      2.
         Does Article 13B(f) of Directive 77/388/EEC prohibit a Member State from making the operation of a gaming machine subject
            to value added tax if the operation of a gaming machine by a licensed public casino is exempt, or must the game of chance
            machines operated outside casinos also be comparable for that purpose in essential respects, for example as regards the maximum
            stake and the maximum winnings, with the gaming machines in the casinos?
         
      
      
      3.
         Is the installer of the machine permitted to rely on the exemption laid down in Article 13B(f) of Directive 77/388/EEC?
      
      
      
       B –  Case C-462/02 
      
        12.      Mr Akritidis ran the ‘Monte-Carlo’ casino in Herne-Eickel from 1987 to 1991, providing roulette and card games under a commercial
      licence. He was permitted inter alia to run memory card-games using a ‘card rack’ next to the gaming table. He failed, however,
      to comply with the official requirements in respect of both roulette and the card games. For instance, the card rack was not
      used, and higher stakes were accepted.
      
      
        13.      In the tax notices of 1 April 1996 the Finanzamt initially included the unapproved roulette and card game turnover in the
      assessment to tax. In response to an objection from Mr Akritidis it then exempted the roulette on the basis of the Court’s
      judgment in the  Fischer  case, but continued to treat the unlawfully organised card games as taxable.
      
      
        14.      The Finanzgericht, to which an application was then made, came to the conclusion, however, that the turnover on card games
      should similarly be exempted from turnover tax under Article 13B(f) of the Sixth Directive and that the trader could therefore
      rely directly on that provision in this respect.
      
      
        15.      The Finanzamt opposes this view in the appeal before the Bundesfinanzhof, the referring court. The Finanzamt argues that,
      as the card games organised by the applicant are comparable to the card games offered in public casinos to only a limited
      degree, the competitive situation found by the Court in the  Fischer  case did not exist. Mr Akritidis, on the other hand, claims that the card games organised by him are equivalent to those
      played in casinos and, like them, should therefore be exempt from tax.
      
      
        16.      Having regard to the  Fischer  judgment, in which the Court found that the (unlawful) game organised by Karlheinz Fischer resembled the roulette played
      in duly licensed public casinos, the referring court raises the question whether it is sufficient, for the exemption under
      Article 13B(f) of the Sixth Directive to apply, for card games to be organised both in and outside public casinos or whether
      they must be comparable in essential respects. There also seemed to be some doubt as to whether an individual was entitled
      to rely on the aforementioned provision of the directive.
      
      
        17.      Against that background the Bundesfinanzhof referred the following questions to the Court for a preliminary ruling by order
      of 6 November 2002:
      
      1.
         Does Article 13B(f) of Directive 77/388/EEC prohibit a Member State from making the organisation of a card game subject to
            value added tax solely if the organisation of a card game by a licensed public casino is exempt, or must card games organised
            outside casinos also be comparable for that purpose in essential respects, for example as regards the game rules, the maximum
            stake and the maximum winnings, with card games in the casinos?
         
      
      
      2.
         Is the installer of the machine permitted to rely on the exemption laid down in Article 13B(f) of Directive 77/388/EEC?
      
      
      
      IV –   Answers to the questions referred 
      
       A –  The scope of the principle of fiscal neutrality in respect of the taxation of games of chance (first and second questions
         in Case C-453/02 and first question in Case C-462/02) 
      
        18.      The first two questions in Case C-453/02 and the first question in Case C-462/02, which must be considered together here,
      essentially ask whether Article 13B(f) of the Sixth Directive precludes the levying of value added tax on the organisation
      of gambling where the organisation of games of chance of the same kind – such as the operation of a gaming machine or the
      organisation of a card game – by a licensed public casino is exempt from value added tax or only where the games of chance
      organised by a licensed public casino are also comparable, in terms of the essential characteristics of the game, to the games
      of chance organised outside such casinos.
      
      
       1. Main arguments of the parties
      
        19.      Mr  Akritidis  has made no submissions in these joined proceedings.
      
      
        20.      Mrs  Linneweber  submits before this Court – contrary to her submission in the main action – that the taxation of turnover from the gaming
      machines operated by her husband does not breach Article 13B(f) because those machines differed fundamentally from the gaming
      machines installed in public casinos. She argues that it is for the Member States to lay down the conditions and limitations
      of the exemption of games of chance under Article 13B(f) of the Sixth Directive provided that, as the Court ruled in the  Fischer  judgment, the principle of fiscal neutrality is respected. That principle was, however, infringed only if a different turnover
      tax was imposed on comparable activities. Two services were comparable if – from the consumer’s point of view – they were
      in sufficiently close competition with each other. The assessment of this aspect must take account of all factors affecting
      the benefit and value of the service to the consumer, and it is crucial in this context to look not only at the outward manifestation
      of the service in the abstract but also at the conditions under which it could be used, its exact nature and the advantages
      and disadvantages for the consumer associated with its use.
      
      
        21.      The differences between the gaming machines at issue in the main action and gaming machines in licensed public casinos as
      regards the places and times at which they were available, the users, the technical arrangements (minimum duration of games,
      maximum stakes, minimum distribution ratios) and the environment in which they were used were so great that, seen from the
      consumer’s point of view, the two forms of gambling did not compete with each other and could therefore be treated differently
      in the light of the principle of fiscal neutrality. Even if the two forms of gambling were assumed to be comparable, equality
      of taxation was, however, achieved through the collection of the casino levy on slot machines in licensed public casinos.
      
      
        22.      The  German Government  similarly emphasises that the gaming machines and card games at issue in the two main actions differ significantly from the
      machines installed and card games organised in licensed public casinos (as regards, for example, rules of play, the chances
      of winning, the duration of games and the stakes). The distinction for tax purposes made between games of chance organised
      in licensed public casinos and those organised elsewhere was consequently not only an objective requirement but also compatible
      with Community law, and especially the principle of fiscal neutrality, and lay within the discretionary powers accorded to
      the Member States.
      
      
        23.      Although, as the  Fischer  judgment revealed, the principle of fiscal neutrality prohibited a general distinction for tax purposes between lawful and
      unlawful services, it did not require the imposition of identical taxes and levies on all lawful games of chance if those
      games were in fact different in nature. The German legislature had accordingly attached different legal consequences to different
      lawful types of gambling and gambling locations. In view of the major differences in the nature and scale of games of chance
      organised in licensed public casinos and those organised elsewhere there was no competition between them. To determine whether
      two games competed with each other, the principles developed by the Community institutions to determine the ‘relevant product
      and geographical market’ for the purposes of Article 82 EC could also be applied.
      
      
        24.      The German Government also takes the view that it is entitled to impose value added tax on games of chance organised outside
      public casinos because that tax is imposed on games of chance in public casinos in the form of the casino levy.
      
      
        25.      The  Commission  maintains that Article 13B(f) of the Sixth Directive focuses on the organisation of ‘gambling’ only in material terms, the
      criteria underlying taxation in Germany, i.e. the person of the organiser or the place at which games of chance are organised,
      being unimportant. The principle of fiscal neutrality prohibited, in particular, any difference in the treatment for VAT purposes
      of economic operators undertaking similar activities. In any case, it was evident from the  Fischer  judgment that the Member States could not deny tax exemption to lawful games of chance. According to the Sixth Directive,
      the sole determining factor was whether, notwithstanding any differences in procedures, one and the same game of chance was
      essentially involved. It was for the national court or the national authorities to determine this in individual cases.
      
      
       2. Appraisal
      
        26.      As all the parties in the two actions have rightly stated, the  Fischer  judgment 
         			(5)
         		 reveals that, while the Member States are empowered by Article 13B(f) to lay down the conditions and limitations of the exemption
      of gambling from tax, they must observe the principle of fiscal neutrality on which the common system of value added tax is
      based.
      
      
        27.      It is settled case-law that, as the principle of fiscal neutrality prohibits in particular different treatment for VAT purposes
      of similar and therefore competing goods or services, such goods or services must be subject to the same tax rate. 
         			(6)
         		
      
        28.      Accordingly, it should first be borne in mind that the principle of fiscal neutrality is linked to the similarity of the activities
      rather than to the person or legal form of the economic operator carrying on those activities. 
         			(7)
         		
      
        29.      Rules like those laid down in the German Umsatzsteuergesetz, according to which, as the referring court’s order reveals, the
      exemption of gambling activities depends on whether they are carried on by licensed public casinos, are therefore bound to
      sit uneasily with that principle.
      
      
        30.      Although the German Government has indicated that the German Umsatzsteuergesetz assumes a distinction between activities carried
      on within public casinos and those carried on elsewhere, it has emphasised, especially during the hearing, that this distinction
      is ultimately based on the considerable differences that actually exist between the games of chance – including the environment
      in which they are played and their accessibility in terms of location – and is therefore compatible with the principle of
      fiscal neutrality.
      
      
        31.      I question the soundness of this line of argument for a number of reasons.
      
      
        32.      For one thing, it is evident from the referring court’s order, as the Commission has pointed out, that there is in principle
      nothing to stop public casinos offering games of chance for which a commercial licence is required and which are thus permissible
      outside public casinos.
      
      
        33.      It also emerges from the  Fischer  judgment, however, that it must not be generally assumed that a distinction between games of chance organised within public
      casinos and games of chance organised elsewhere corresponds to the distinction permitted for tax purposes in the light of
      the principle of fiscal neutrality. I have a number of observations to make on that judgment below.
      
      
        34.      The  Fischer  case concerned the question of the equal treatment for tax purposes of a game of chance organised outside licensed public
      casinos, that game resembling roulette as operated in duly licensed public casinos.
      
      
        35.      It should be remembered that in that case the organisation of roulette outside the licensed public casino was also unlawful
      and that, in the final analysis, the Court based its answer to the question as to the compatibility of the taxation of that
      game of chance with the principle of fiscal neutrality primarily on the lawfulness/unlawfulness of a game of chance. Thus,
      referring to the judgment in Case C-111/92, 
         			(8)
         		 it ruled that ‘the principle of fiscal neutrality precludes a generalised distinction from being drawn in the levying of
      VAT between unlawful and lawful transactions.’ 
         			(9)
         		
      
        36.      From this it follows, on the one hand, that games of chance may not be treated differently for tax purposes solely because
      they differ in terms of lawfulness. This is of relevance in Case C-462/02, which concerns a card game offered unlawfully outside
      licensed public casinos.
      
      
        37.      On the other hand, the proposition that games of chance differ for the purposes of the principle of fiscal neutrality for
      the simple reason that they are organised by or in public casinos must, however, also be refuted on the basis of the  Fischer  judgment. For the Court ruled in that judgment that a Member State may not impose VAT on a game of chance – albeit one that
      is organised outside a licensed public casino – if the organisation of such a game of chance by a licensed public casino is
      exempt. 
         			(10)
         		
      
        38.      The Court could not have given this ruling if it were indeed true that the games of chance offered by public casinos already
      differed significantly from those offered by commercial operators because of the difference in accessibility, the gambling
      environment, the ‘gambling culture’ or the different circle of user.
      
      
        39.      The central question still to be answered, however, is whether and under what conditions the games of chance at issue in the
      main actions – gaming machines and card games – are to be regarded, as the  Fischer  judgment has it, as games of chance organised by licensed public casinos and exempted from tax.
      
      
        40.      What all forms of gambling have in common where tax law is concerned, as I have already stated in my Opinion in the  Town & County Factors  case, 
         			(11)
         		 is at least the essential characteristic that they are geared to the payment of winnings which are linked with the gambler’s
      ‘consideration’, his stake, by means of an element of chance, i.e. the possibility of winning. To what extent, however, are
      games of chance to be distinguished from one another in the present context because of differences in form and design?
      
      
        41.      It should first be noted that not all forms of gambling can be regarded as similar services for the purposes of fiscal neutrality
      and should, as such, be taxed at the same rate.
      
      
        42.      This would deprive the Member States of practically all discretion in laying down the ‘conditions and limitations’ of exemption
      pursuant to Article 13B(f). Yet that discretion is specifically intended to enable the Member States to impose VAT on certain
      forms of gambling. 
         			(12)
         		
      
        43.      In other words, a Member State may indeed limit the taxation of games of chance – or, conversely, their exemption from tax
      – to certain forms of gambling. It thus cannot be forced by the principle of fiscal neutrality to adopt an all-or-nothing
      solution, which would mean that once it exempts one game of chance or one form of gambling it would have to exempt all other
      games of chance or forms of gambling.
      
      
        44.      However, the various different games of chance or forms of gambling are by their very nature difficult to distinguish from
      one another, and it is thus hard to determine whether or not games of chance are similar. While I am inclined to regard, say,
      card games, roulette and gaming machines as different forms of gambling when compared with one another, the question does
      not arise in such general terms in the present instance, since the  Linneweber  case concerns gaming machines and the  Akritidis  case concerns card games.
      
      
        45.      On the other hand, it would doubtless be going too far simply to regard all card games, for example, as comparable to one
      another, the possible options being too numerous for it to be assumed without more that all forms of games of chance based
      on cards are similar services for the purposes of the principle of fiscal neutrality.
      
      
        46.      To my mind, however, minor differences in the arrangement or structure of the card games to be compared in a given instance
      do not matter.
      
      
        47.      As innumerable variants of games of chance are conceivable, the principle of fiscal neutrality would be largely frustrated
      if the Member States were permitted to make distinctions based on minor differences in the structure, procedures and rules
      of a game as regards the imposition of VAT. There is no denying that, as Mrs Linneweber has stated, the Court focused on the
      specific design of the structure and course of the various games in the  Glawe  and  Town & County Factors  judgments, 
         			(13)
         		 but those cases, unlike the ones here under discussion, did not concern the question of the similarity of games of chance
      for the purposes of fiscal neutrality and the question of taxation as such: the aim was to calculate the  taxable amount  and especially to assess the consideration actually received, as a function of the specific design of the game of chance.
      
      
        48.      When it comes to assessing the similarity of games of chance for the purposes of fiscal neutrality, what needs to be borne
      in mind is that this principle entails the equal treatment of ‘similar goods [and services], which are thus in competition
      with each other’ and, therefore, is also, as the Court has already ruled, an expression of the principle of the elimination
      of distortion in competition. 
         			(14)
         		
      
        49.      Accordingly, in the judgments in Cases C-481/98 
         			(15)
         		 and C-384/01 
         			(16)
         		 the Court assessed the similarity of activities to see whether the activities in question were in competition with each other
      and different fiscal treatment therefore posed the risk of distorting competition.
      
      
        50.      Contrary to the Commission’s arguments, the fact that the cases referred to in the previous paragraph concern a reduced tax
      rate does not preclude the applicability of that case-law to the current two cases, since the question there is at least whether
      or not certain supplies of goods or services must be afforded equal fiscal treatment in accordance with the principle of fiscal
      neutrality.
      
      
        51.      If, then, the similarity of goods or services depends on whether or not they are in competition with each other, there is
      a strong argument for an analogy with the Court’s case-law on the second paragraph of Article 90 EC. In that case-law the
      Court states that, when the similarity of goods is being assessed, it must be considered ‘whether they have similar characteristics
      and meet the same needs from the point of view of consumers, the test being not whether they are strictly identical but whether
      their use is similar and comparable.’ 
         			(17)
         		
      
        52.      By focusing on the consumer’s decision to purchase, the Court adopted this approach, for example, in the case of  Commission  v  France  in order to consider whether, in keeping with the principle of fiscal neutrality, reimbursable and non-reimbursable medicinal
      products must be regarded as similar products in competition with each other. 
         			(18)
         		
      
        53.      If this is applied to forms of gambling, they are thus to be regarded as similar provided that they ‘meet the same needs’
      of the consumer, a gambler, and their use is thus comparable, i.e. if, for example, differences between two games of chance
      of the same type, e.g. two card game variants, do not influence the consumer’s decision to participate in one or other game
      of chance. In such a case, as the use of the games of chance in question is, from the consumer’s point of view, comparable,
      taxing them at different rates might lead to distortions of competition.
      
      
        54.      It should be added that in an assessment of the question whether differences along these lines carry any weight – as generally
      when turnover is assessed under the common system of VAT – an overall view must be taken which avoids artificial distinctions
      and focuses primarily on the average consumer’s point of view. 
         			(19)
         		
      
        55.      Whether in a specific case the gaming machines and card games operated outside public casinos are comparable in terms of their
      use by the average consumer to the gaming machines and card games offered by such public casinos and meet the same needs or
      whether, on the other hand, they differ substantially from one another is, however, for the national court to assess.
      
      
        56.      Given otherwise the same basic type of game of chance – card game or gaming machine – and bearing in mind that the appeal
      of gambling primarily lies in the possibility of winning, the potential scale of the winnings and, generally, the risk inherent
      in gambling are likely to have a relevant influence on the average consumer’s decision to gamble.
      
      
        57.      As regards, finally, the arguments presented by Mrs Linneweber and the German Government, according to which restricting the
      exemption to games of chance organised in public casinos is compatible with the principle of fiscal neutrality because those
      games are subject to the casino levy, which also helps to cover turnover tax, suffice it to say that the Court rejected this
      argument in the  Fischer  judgment. 
         			(20)
         		
      
        58.      In the light of the foregoing considerations the answer to the first two questions in Case C-453/02 must be that Article 13B(f)
      of the Sixth Directive precludes the taxation of the operation of a gaming machine if the operation of a similar gaming machine
      by a licensed public casino is exempt from VAT. In assessing the similarity of gaming machines, the national court must focus
      on whether the use of the gaming machines operated in public casinos is comparable from the average consumer’s point of view
      to the use of gaming machines operated elsewhere, those machines therefore being in competition with each other, factors which
      must be taken into account in this regard being in particular the potential scale of winnings and the gambling risk.
      
      
        59.      Similarly, the answer to the first question in Case C-462/02 must be that Article 13B(f) of the Sixth Directive precludes
      the taxation of the organisation of a card game if the organisation of a similar card game by a licensed public casino is
      exempt from VAT. In assessing the similarity of card games, the national court must focus on whether the use of the card games
      organised in public casinos is comparable from the average consumer’s point of view to the use of card games organised elsewhere,
      those card games therefore being in competition with each other, factors which must be taken into account in this regard being
      in particular the potential scale of winnings and the gambling risk.
      
      
        60.      As regards, finally, the argument presented by the German Government at the hearing that the duration of the effect of that
      judgment should possibly be curtailed, especially because it was confident that the German turnover tax rules complied with
      Community law, there do not appear to me to be adequate grounds for such a time-limit. As the Commission has rightly commented,
      the Court’s judgment in the  Glawe  case 
         			(21)
         		 does not justify any legitimate expectation of the general consistency with Community law of the German turnover tax rules
      as they relate to the taxation of games of chance, since that judgment concerned only the calculation of the taxable amount.
      Nor – in view of the discretion which the Commission enjoys in this sphere – could such an expectation be justified by the
      fact that the Commission had not yet initiated proceedings against the Federal Republic of Germany for infringing the Treaty
      in the area of the taxation of games of chance.
      
      
       B –  The direct effect of tax exemption pursuant to Article 13B(f) of the Sixth Directive (third question in Case C-453/02 and
         second question in Case C-462/02) 
      
       1. Main arguments of the parties
      
        61.      In the view of the  German Government  the exemption of betting, lotteries and other forms of gambling from tax for which Article 13B(f) provides is, on the one
      hand, not unconditional and, on the other hand, too imprecise to justify unambiguous and thus directly applicable obligations.
      Nor does the principle of fiscal neutrality do anything to change the ambiguity of Article 13B(f) of the Sixth Directive.
      
      
        62.      Although the  Commission  admits that the Member States enjoy considerable latitude in the taxation of gambling, a Member State could not dismiss the
      claim of a taxpayer able to prove that he was exempt under the directive by stating that appropriate national legislation
      had not been adopted. The Commission refers in particular to the  Kügler  judgment 
         			(22)
         		 in this context and argues on that basis that restrictions of an exemption rule of a contingent nature as in the present
      case cannot preclude direct effect.
      
      
        63.      Mrs  Linneweber  stated at the hearing that she essentially shared the Commission’s view in this respect.
      
      
       2. Appraisal
      
        64.      In asking the third question in Case C-453/02 and the second question in Case C-462/02, the Bundesfinanzhof is seeking to
      establish whether in circumstances such as those in the two main actions an individual may rely before a national court on
      the tax exemption for which Article 13B(f) of the Sixth Directive provides.
      
      
        65.      It is settled case-law that wherever the provisions of a directive appear to be unconditional and sufficiently precise, those
      provisions may, in the absence of implementing measures adopted within the prescribed period, be relied on by individuals
      against the State and the rights laid down therein must be protected. 
         			(23)
         		
      
        66.      What must first be noted here is that the fact that a provision of Community law is in need of interpretation – in the light,
      for example, of a principle such as that of fiscal neutrality – does not in itself preclude that provision from being sufficiently
      precise and definite for an individual to be able to rely on it before a national court. 
         			(24)
         		 The procedure for a preliminary ruling on the interpretation of Community law is intended rather to ensure the uniform assertion
      – particularly against conflicting national law – of directly effective rights granted to the individual in Community law. 
         			(25)
         		
      
        67.      It is true that the Member States have some discretion in the limitation of the scope of the exemption pursuant to Article
      13B(f). 
         			(26)
         		
      
        68.      However, the Court has ruled in settled case-law that, even when a directive allows the Member States a fairly wide discretion,
      individuals may not be denied the right to rely on provisions of the directive to the extent that, owing to their particular
      subject-matter, they are capable of being severed from the general body of provisions and applied as such. 
         			(27)
         		
      
        69.      Provided that, when laying down the conditions and limitations of the tax exemption under Article 13B(f), a Member State observes
      the discretion accorded to it by that provision, there is therefore no doubt that an individual who does not fall within the
      scope of the tax exemption thus defined may not rely on that provision as a means of objecting to his assessment to tax. 
         			(28)
         		
      
        70.      Conversely, however, the possibility of an individual relying on this provision in order to prevent the application of national
      rules cannot be precluded where those national rules go beyond or are inconsistent with the discretion accorded to the Member
      States.
      
      
        71.      As I have already stated above, Article 13B(f) must be taken to mean that the Member States must observe the principle of
      fiscal neutrality when laying down the conditions and limitations of the exemption of gambling from tax. 
         			(29)
         		
      
        72.      If, then, a Member State has omitted to exempt gambling from tax in accordance with the principle of fiscal neutrality, it
      cannot, as the Commission has rightly argued, rely on its own omission in order to refuse a taxpayer entitlement to an exemption
      which he may claim under the Sixth Directive. 
         			(30)
         		
      
        73.      Whether this is the case in the main actions here in question is for the national court to determine with the aid of the indications
      given in the answers to the first two questions in Case C-453/02 and the first question in Case C-462/02.
      
      
        74.      Thus the answer to the third question in Case C-453/02 and the second question in Case C-462/02 is that an individual may
      rely before a national court on the tax exemption pursuant to Article 13B(f) of the Sixth Directive in order to oppose national
      rules which are incompatible with that provision.
      
       
      V –   Conclusion 
      
        75.      In view of the foregoing it is proposed that the Court should answer the questions referred to it as follows:
      
      
       A –  In Case C-453/02 
      
      (1)
         Article 13B(f) of the Sixth Directive precludes the taxation of the operation of a gaming machine if the operation of a similar
            gaming machine by a licensed public casino is exempt from value added tax. When assessing the similarity of gaming machines,
            the national court must consider whether the use of the gaming machines operated in public casinos and those operated elsewhere
            is comparable for the average consumer and they are therefore in competition with each other, and the factors which must be
            taken into account in this respect include, in particular, the potential scale of winnings and the gambling risk.
         
      
      
      (2)
         An individual may rely before a national court on exemption from tax pursuant to Article 13B(f) of the Sixth Directive in
            order to oppose national rules which are incompatible with that provision.
         
      
      
       B –  In Case C-462/02 
      
      (1)
         Article 13B(f) of the Sixth Directive precludes the taxation of the organisation of a card game if the organisation of a similar
            card game by a licensed public casino is exempt from value added tax. When assessing the similarity of card games, the national
            court must consider whether the use of the card games organised in public casinos and those organised elsewhere is comparable
            for the average consumer and they are therefore in competition with each other, and the factors which must be taken into account
            in this respect include, in particular, the potential scale of winnings and the gambling risk.
         
      
      
      (2)
         An individual may rely before a national court on exemption from tax pursuant to Article 13B(f) of the Sixth Directive in
            order to oppose national rules which are incompatible with that provision. 
         
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         Council Directive 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 (OJ 1977 L 145, p. 1).
            
         
      
      3 –
         
         Judgment in Case C-283/95 [1998] ECR I-3369.
            
         
      
      4 –
         
         Judgment in Case C-283/95 (cited in footnote 3).
            
         
      
      5 –
         
         Judgment in Case C-283/95 (cited in footnote 3), paragraph 27.
            
         
      
      6 –
         
         See, for example, the judgments in Case C-384/01  Commission  v  France  [2003] ECR I-4395, paragraph 25, Case C-267/99  Christiane Adam  [2001] ECR I­-7467, paragraph 36, and Case C-481/98  Commision  v  France  [2001] ECR I-3369, paragraph 22.
            
         
      
      7 –
         
         For this aspect see, in particular, the judgments in Case C-144/00  Hoffmann  [2003] ECR I-2921, paragraph 27, Case C-141/00  Kügler  [2002] ECR I-6833, paragraph 30, and Case C-216/97  Gregg  [1999] ECR I-4947, paragraph 20.
            
         
      
      8 –
         
         Judgment in Case C-111/92  Lange  [1993] ECR I-4677, paragraphs 16 and 17.
            
         
      
      9 –
         
         Judgment in Case C-283/95 (cited in footnote 3), paragraph 28.
            
         
      
      10 –
         
         Judgment in Case C-283/95 (cited in footnote 3), paragraph 31.
            
         
      
      11 –
         
         Opinion in Case C-498/99  Town & County Factors  (judgment [2002] ECR I-7173, paragraph 70).
            
         
      
      12 –
         
         See my Opinion in Case C-498/99 (cited in footnote 11), paragraph 69, and, earlier, the Opinion of Advocate General Jacobs
            in Case C-38/93  Glawe  (judgment [1994] ECR I-1679, paragraph 10).
            
         
      
      13 –
         
         See also my comments in my Opinion in Case C-498/99 (cited in footnote 11), paragraphs 68 to 74, and the judgment in Case
            C-38/93 (cited in footnote 12).
            
         
      
      14 –
         
         As expressly stated in the judgment in Case C-481/98 (cited in footnote 6), paragraph 22; see also paragraph 27 above.
            
         
      
      15 –
         
         Judgment in Case C-481/98 (cited in footnote 6), paragraphs 27 and 28.
            
         
      
      16 –
         
         Judgment in Case C-384/01 (cited in footnote 6), paragraph 30.
            
         
      
      17 –
         
         Inter alia the judgments in Case C-302/00  Commission  v  France  [2002] ECR I‑ 2055, paragraph 23, and Joined Cases C-367/93 to C-377/93  Roders and Others  [1995] ECR I‑2229, paragraph 27.
            
         
      
      18 –
         
         Judgment in Case C-481/98 (cited in footnote 6), paragraph 27.
            
         
      
      19 –
         
         See the judgment in Case C-349/96  Card Protection Plan  [1999] ECR I-973, paragraph 29.
            
         
      
      20 –
         
         See the judgment in Case C-283/95 (cited in footnote 3), paragraphs 29 and 30.
            
         
      
      21 –
         
         See paragraph 47 above.
            
         
      
      22 –
         
         Judgment in Case C-141/00 (cited in footnote 7), paragraph 57.
            
         
      
      23 –
         
         See inter alia the judgments in Joined Cases C-465/00, C-138/01 and C-139/01  Österreichischer Rundfunk and Others  [2003] ECR I-4989, paragraph 98, Case C‑141/00 (cited in footnote 7), paragraph 51, and Case 103/88  Fratelli Costanzo  [1989] ECR 1839, paragraph 29.
            
         
      
      24 –
         
         See, for example, the recent judgment in Case C-102/02  Beuttenmüller  [2004] ECR I‑0000, especially paragraph 37.
            
         
      
      25 –
         
         See, in this respect, the judgment in Case 26/62  Van Gend & Loos  [1963] ECR 1, 24.
            
         
      
      26 –
         
         See paragraphs 26 and 42 et seq. above.
            
         
      
      27 –
         
         See the judgments in Case C-346/97  Braathens  [1999] ECR I-3419, paragraph 30, and Case 8/81  Becker  [1982] ECR 53, paragraph 30.
            
         
      
      28 –
         
         See the judgment in Case C-141/00 (cited in footnote 7), paragraph 55.
            
         
      
      29 –
         
         See paragraph 26 above.
            
         
      
      30 –
         
         See the judgment in Case C-141/00 (cited in footnote 7), paragraph 60.