Commissioners for Her Majesty's Revenue and Customs v British Film Institute.
Date: 2017-02-15
13


According to settled case-law, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the State has failed to implement the directive in domestic law within the period prescribed or where it has failed to implement the directive correctly (see, inter alia, judgments of 19 January 1982, Becker, 8/81, EU:C:1982:7, paragraph 25; of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 31; and of 7 July 2016, Ambisig, C‑46/15, EU:C:2016:530, paragraph 16 and the case-law cited).
14


With respect to Article 13A(1)(n) of the Sixth Directive, it should be recalled that the exemption laid down in that provision refers to ‘certain cultural services’. The provision does not therefore specify which cultural services the Member States are required to exempt. It does not set out an exhaustive list of cultural services to be exempted, or lay down an obligation of the Member States to exempt all cultural services, but refers only to ‘certain’ of those services. Consequently, the provision leaves it to the Member States to determine the cultural services that are to benefit from the exemption.
15


BFI submits, referring to the Court’s case-law according to which the exemptions in Article 13A(1) of the Sixth Directive are independent concepts of EU law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another (see, inter alia, judgment of 21 February 2013, Žamberk, C‑18/12, EU:C:2013:95, paragraph 17), that the expression ‘certain cultural services’ must be interpreted as referring to all cultural services supplied by bodies governed by public law or other cultural bodies recognised by the Member State concerned, and is therefore sufficiently clear and precise.
16


However, it must be noted that such an interpretation does not correspond to the ordinary meaning of the term ‘certain’ used in Article 13A(1)(n) of the Sixth Directive, and deprives of effectiveness the use of that term in that provision.
17


Furthermore, the interpretation proposed by BFI is liable to extend the scope of the exemption under that provision beyond that term to cover all cultural services, contrary to the Court’s case-law stating that the terms used to specify the exemptions in Article 13A(1) of the directive are to be interpreted strictly (see, to that effect, judgments of 14 June 2007, Horizon College, C‑434/05, EU:C:2007:343, paragraph 16; of 22 October 2015, Hedqvist, C‑264/14, EU:C:2015:718, paragraphs 34 and 35; and of 25 February 2016, Commission v Netherlands, C‑22/15, not published, EU:C:2016:118, paragraph 20 and the case-law cited).
18


It also follows from the Court’s case-law that, contrary to BFI’s submissions, the requirement of ensuring the uniform application of the exemptions in Article 13A(1) is not absolute. While the exemptions in that article are independent concepts of EU law whose purpose is to avoid divergences in the application of the VAT system from one Member State to another, the EU legislature may confer on the Member States the task of defining certain terms of an exemption (see, to that effect, judgments of 28 March 1996, Gemeente Emmen, C‑468/93, EU:C:1996:139, paragraph 25; of 4 May 2006, Abbey National, C‑169/04, EU:C:2006:289, paragraphs 38 and 39; and of 9 December 2015, Fiscale Eenheid X, C‑595/13, EU:C:2015:801, paragraph 30 and the case-law cited).
23


It must therefore be considered that, by referring to ‘certain cultural services’, Article 13A(1)(n) of the Sixth Directive does not require the exemption of all cultural services, so that the Member States may exempt ‘certain’ of them while subjecting others to VAT.
24


In so far as that provision allows the Member States a discretion in determining the exempted cultural services, it does not satisfy the conditions deriving from the case-law cited in paragraph 14 above for being capable of being relied on directly before the national courts.