Finanzamt Burgdorf v Manfred Bog (C-497/09), CinemaxX Entertainment GmbH & Co. KG v Finanzamt Hamburg-Barmbek-Uhlenhorst (C-499/09), Lothar Lohmeyer v Finanzamt Minden (C-501/09) and Fleischerei Nier GmbH & Co. KG v Finanzamt Detmold (C-502/09).
Date: 2011-03-10
52. According to the Court’s case-law, where a transaction comprises a bundle of elements and acts, regard must be had to all the circumstances in which the transaction in question takes place in order to determine, first, whether there are two or more distinct supplies or one single supply and, secondly, whether, in the latter case, that single supply is to be regarded as a supply of goods or a supply of services (see Levob Verzekeringen and OV Bank , paragraph 19, and Aktiebolaget NN , paragraph 21).
53. The Court has also held, first, that it follows from Article 2 of the Sixth Directive that every transaction must normally be regarded as distinct and independent and, secondly, that a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. There is a single supply where two or more elements or acts supplied by the taxable person to the customer are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split ( Levob Verzekeringen and OV , paragraphs 20 and 22, and Aktiebolaget NN , paragraphs 22 and 23).
54. There is also a single supply where one or more elements are to be regarded as constituting the principal supply, while other elements are to be regarded, by contrast, as one or more ancillary supplies which share the tax treatment of the principal supply. In particular, a supply must be regarded as ancillary to a principal supply if it does not constitute for customers an end in itself but a means of better enjoying the principal service supplied (see, inter alia, Case C‑349/96 CPP  [1999] ECR I‑973, paragraph 30; Levob Verzekeringen and OV Bank , paragraph 21; Case C‑572/07 RLRE Tellmer Property  [2009] ECR I‑4983, paragraph 18; and Case C‑276/09 Everything Everywhere  [2010] ECR I‑0000, paragraphs 24 and 25).
55. In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether that is the situation in a particular case and to make all definitive findings of fact in that regard (see, to that effect, CPP , paragraph 32, and Levob Verzekeringen and OV Bank , paragraph 23).
57. In the case of supplies in connection with a party catering business such as that at issue in the main proceedings in Case C‑502/09, it may be noted inter alia that the existence of a single transaction is independent of whether the caterer issues a single invoice covering all the elements or issues a separate invoice for the supply of the food (see, to that effect, CPP , paragraph 31; Levob Verzekeringen and OV Bank , paragraph 25; and Everything Everywhere , paragraph 29).
Classification as a supply of goods or a supply of services
58. The Sixth Directive establishes a common system of VAT based inter alia on a uniform definition of taxable transactions (see, inter alia, Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 48).
59. As regards the concept of ‘supply of goods’, Article 5(1) of the Sixth Directive states that the transfer of the right to dispose of tangible property as owner is such a supply. In that regard the case-law of the Court explains that the concept covers any transfer of tangible property by one party which empowers the other pa rty actually to dispose of it as if he were its owner (see, inter alia, Halifax and Others , paragraph 51).
61. To determine whether a single complex supply such as those at issue in the cases in the main proceedings should be classified as a ‘supply of goods’ or a ‘supply of services’, all the circumstances in which the transaction takes place must be taken into account in order to ascertain its characteristic elements and to identify its predominant elements (see, to that effect, inter alia, Faaborg-Gelting Linien , paragraphs 12 and 14; Levob Verzekeringen and OV Bank , paragraph 27; Aktiebolaget NN , paragraph 27; and Case C‑88/09 Graphic Procédé  [2010] ECR I‑0000, paragraph 24).
62. It should also be pointed out that the predominant element must be determined from the point of view of the typical consumer (see, to that effect, inter alia, Levob Verzekeringen and OV Bank , paragraph 22, and Everything Everywhere , paragraph 26) and having regard, in an overall assessment, to the qualitative and not merely quantitative importance of the elements of supply of services in relation to the elements of supply of goods.
63. It should be noted in this respect that, as the marketing of goods is always accompanied by a minimal supply of services such as the displaying of the products on shelves or the issuing of an invoice, only services other than those which necessarily accompany the marketing of goods may be taken into account in assessing the part played by the supply of services within the whole of a complex transaction also involving the supply of a product (Case C‑491/03 Hermann  [2005] ECR I‑2025, paragraph 22).
64. The Court has held, more specifically, in Faaborg-Gelting Linien , paragraph 14, that restaurant transactions are characterised by a bundle of elements and acts, of which the provision of food is only one component and in which services largely predominate. They must therefore be regarded as supplies of services within the meaning of Article 6(1) of the Sixth Directive. The situation is different, however, where the transaction relates to food to take away and is not coupled with services designed to enhance consumption on the spot in an appropriate setting.
65. Thus in the case of restaurant transactions on board ferries, the Court observed that the supply of prepared food and drink for immediate consumption is the outcome of a series of services ranging from the cooking of the food to its physical service in a receptacle, while at the same time an infrastructure is placed at the customer’s disposal, including a dining room with appurtenances (cloakroom etc.), furniture and crockery. People, whose occupation consists in carrying out restaurant transactions, will have to perform such tasks as laying the table, advising the customer and explaining the food and drink on the menu to him, serving at table and clearing the table after the food has been eaten ( Faaborg-Gelting Linien , paragraph 13).
83. In the absence of a definition in the Sixth Directive of that concept of foodstuffs, it must be interpreted in the light of its context within the Sixth Directive (see, by analogy, Cases C‑83/99 Commission  v Spain  [2001] ECR I‑445, paragraph 17, and Case C‑3/09 Erotic Center  [2010] ECR I‑0000, paragraph 14).
84. It follows from Article 12(3)(a) of the Sixth Directive that the application of either one or two reduced rates is an option accorded to the Member States as an exception to the principle that the standard rate applies. Moreover, according to that provision, the reduced rates of VAT may be applied only to the supplies of goods and services listed in Annex H to the directive (see Commission  v Spain , paragraph 18, and Erotic Center , paragraph 15). It is settled case-law that, in matters of VAT, provisions which are in the nature of exceptions to a principle must be interpreted strictly, while ensuring that the exception is not deprived of its effectiveness (see, inter alia, Case C‑581/08 EMI Group  [2010] ECR I‑0000, paragraph 20, and Case C‑175/09 AXA UK  [2010] ECR I‑0000, paragraph 25).