Granton Advertising BV v Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag.
Date: 2014-06-12
17. The issue of whether the Granton cards are subject to VAT and of the possible calculation of that VAT depends on the legal and financial characteristics of those cards (see, to that effect, Case C‑427/98 Commission  v Germany  EU:C:2002:581, paragraph 57 and the case-law cited). Accordingly, although the questions raised by the referring court concern, inter alia, the issue of the possible exemption of the transaction consisting in the sale of such cards, it is necessary to determine, as a preliminary, the conditions governing the sale of those cards, in so far as those conditions have an effect on the identification of the taxable transaction and the assessment of the nature of that transaction.
19. The fact that the affiliated business agrees to forego the sum represented by the discount obtained under those preferential terms constitutes, as the European Commission noted in its written observations, a price discount, within the meaning of Article 11(A)(3)(b) of the Sixth Directive. In accordance with the Court’s case-law, 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, to that effect, Case C‑126/88 Boots Company  EU:C:1990:136, paragraph 22, and Case C‑288/94 Argos Distributors  EU:C:1996:398, paragraph 16).
20. Moreover, as regards the taxable amount of the transaction consisting in the sale of Granton cards, it must be noted that the amounts paid by the consumers to Granton Advertising in order to acquire a Granton 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 the Granton card and the goods or services which may be obtained by those consumers from the affiliated businesses (see, to that effect, Case 154/80 Coöperatieve Aardappelenbewaarplaats  EU:C:1981:38, paragraph 12, and Case C‑412/03 Hotel Scandic Gåsabäck  EU:C:2005:47, paragraph 22).
21. In that respect, aside from the fact that there is no contract between the Granton card holders and the affiliated businesses and that those businesses do not receive any part of the revenue obtained by Granton Advertising from the sale of those cards, the necessary link does not exist between the payment by the consumer to Granton Advertising in order to obtain a Granton 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 the card and on the availability of offers from the affiliated businesses, is uncertain and practically impossible to determine in advance (see, by analogy, Case C‑520/10 Lebara EU:C:2012:264, paragraph 38).
25. It must be pointed out that, in accordance with the case-law of the Court, the terms used to specify the exemptions referred to in Article 13 of the Sixth Directive constitute independent concepts of EU law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (Case C‑350/10 Nordea Pankki Suomi  EU:C:2011:532, paragraph 22 and the case-law cited), and that those terms are to be interpreted strictly, since those exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (Case 348/87 Stichting Uitvoering Financiële Acties  EU:C:1989:246, paragraph 13, and Case C‑540/09 Skandinaviska Enskilda Banken  EU:C:2011:137, paragraph 20).
26. In order to determine whether discount cards, such as the Granton cards, fall within the scope of the concept of ‘other securities’ or of ‘other negotiable instruments’ as set out in Article 13(B)(d) of the Sixth Directive, it is necessary to consider, inter alia, the wording of that provision, the context in which those concepts appear and the objectives pursued by the exemption provided for therein (see, inter alia, to that effect, Case 292/82 Merck  EU:C:1983:335, paragraph 12; Case C‑112/11 ebookers.com Deutschland EU:C:2012:487, paragraph 12, and Case C‑243/11 RVS Levensverzekeringen  EU:C:2013:85, paragraph 23).
Whether the Granton cards fall within the scope of the concept of ‘other securities’
27. As regards the wording of the provision providing for the exemption at issue, it must be noted that, under Article 13(B)(d)(5) of the Sixth Directive, the Member States are to exempt, inter alia, transactions in ‘shares, interests in companies or associations, debentures and other securities’. While that exemption thus refers specifically to securities conferring a property right over legal persons and securities representing a debt, it is still the case that the ‘other securities’ referred to in that provision have to be regarded, at the very least, as also being ‘securities’. Accordingly, they have to be regarded as being comparable in nature to the other securities specifically mentioned in that provision.
28. The latter finding is supported by the securities expressly excluded from the exemption provided for in that provision, namely (i) documents establishing title to goods and (ii) shares or interests equivalent to shares giving the holder thereof de jure  or de facto  rights of ownership or possession over immovable property or part thereof, in so far as those shares or interests are considered to be tangible property by the Member State in accordance with Article 5(3)(c) of the Sixth Directive (see, to that effect, Case C‑259/11 DTZ Zadelhoff  EU:C:2012:423, paragraph 42). The nature of those shares or interests as ‘securities’, in that they represent, inter alia, rights of ownership over movable or immovable property, constitutes an indication of what is to be understood by ‘security’ for the purpose of Article 13(B)(d)(5) of the Sixth Directive, notwithstanding their exclusion from the exemption provided for in that provision.
29. As regards the context of that provision, it must be borne in mind that, in accordance with the Court’s case-law, transactions exempt from VAT under Article 13(B)(d) of the Sixth Directive are, by their nature, financial transactions. Although those transactions, defined according to the nature of the services provided, do not necessarily have to be carried out by banks or other financial institutions, they relate, nevertheless, as a whole, to the sphere of financial transactions (see, to that effect, Case C‑455/05 Velvet & Steel Immobilien EU:C:2007:232, paragraphs 21 and 22 and the case-law cited).
30. It should be added, as regards the objectives of that provision, that it is clear from the Court’s case-law that the purpose of the exemption for financial transactions listed in Article 13(B)(d)(5) of the Sixth Directive is, inter alia, to alleviate the difficulties connected with determining the taxable amount and the amount of VAT deductible ( Velvet & Steel Immobilien  EU:C:2007:232, paragraph 24, and Skandinaviska Enskilda Banken  EU:C:2011:137, paragraph 21).
32. It is clear from an examination of the main features of the Granton card, as they can be seen from the file submitted to the Court, that it has no nominal value and that it cannot be exchanged for money or goods from the affiliated businesses. In those circumstances, the sale of such a card to consumers does not constitute, by its nature, a financial transaction within the meaning of the Court’s case-law concerning Article 13(B)(d) of the Sixth Directive (see, to that effect, Velvet & Steel Immobilien  EU:C:2007:232, paragraphs 22 and 23, and Nordea Pankki Suomi  EU:C:2011:532, paragraphs 24 to 27).
36. In line with paragraph 29 of the present judgment, regarding the concept of ‘other securities’ referred to in Article 13(B)(d)(5) of the Sixth Directive, it must be held that transactions that are exempt from VAT under paragraph 3 of that provision also relate to the sphere of financial transactions (see, to that effect, Velvet & Steel Immobilien  EU:C:2007:232, paragraph 22).
37. It must be pointed out that Article 13(B)(d)(3) of the Sixth Directive concerns, inter alia, payment instruments such as cheques. As noted in paragraphs 18 and 31 of the present judgment, although the Granton cards entitle their holder to price reductions, they do not constitute, in themselves, a payment instrument for the purpose of that directive. As the United Kingdom government noted, even if such cards are transferrable and may be resold at a certain price, they do not operate as a way of transferring money, unlike payments, transfers and cheques.
38. In those circumstances, given that the terms of the exemption provided for in Article 13(B)(d) of the Sixth Directive must be interpreted strictly, as noted in paragraph 25 of the present judgment, it must be held that discount cards, such as those at issue in the main proceedings, do not fall within the scope of ‘other negotiable instruments’ within the meaning of Article 13(B)(d)(3) of that directive.