Stadion Amsterdam CV v Staatssecretaris van Financiën.
Date: 2018-01-18
21


As a preliminary point, it should be noted that, 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 whether that operation gives rise, for the purposes of VAT, to two or more distinct supplies or to one single supply (see, to that effect, judgments of 10 March 2011, Bog and Others, C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 52 and the case-law cited, and of 21 February 2013, Žamberk, C‑18/12, EU:C:2013:95, paragraph 27 and the case-law cited).
22


The Court has also held, first, that it follows from Article 2 of the Sixth Directive that every transaction must normally be regarded as being 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 (judgments of 10 March 2011, Bog and Others, C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 53 and the case-law cited, and of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 70 and the case-law cited).
23


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 service 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 (judgments of 10 March 2011, Bog and Others, C‑497/09, C‑499/09, C‑501/09 and C‑502/09, EU:C:2011:135, paragraph 54 and the case-law cited, and of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 71 and the case-law cited).
24


In that regard, as to whether access to an aquatic park offering visitors not only facilities for engaging in sporting activities but also other types of recreation or relaxation amounted to a single supply falling within Article 132(1)(m) of Directive 2006/112, the Court has held that the fact that the aquatic park offers only a single entrance ticket granting access to all of the facilities, without any distinction according to the type of facility actually used and to the manner and to the duration of use during the period of the entrance ticket’s validity, constitutes a strong indication of the existence of a single supply (judgment of 21 February 2013, Žamberk, C‑18/12, EU:C:2013:95, paragraph 32).
26


As to whether the two elements comprising that single supply, of which one is the principal and the other ancillary, may be subject to different rates of VAT, which would be those applicable to those elements if they were supplied separately, to interpret the Sixth Directive as allowing such taxation would run counter to the case-law referred to in paragraphs 21 to 23 of the present judgment, and as Stadion Amsterdam, the Netherlands Government and the Commission accepted in their respective written observations, it follows from the characterisation of an operation comprising several elements as a single supply that that operation will be subject to one and the same rate of VAT (see, to that effect, judgments of 17 January 2013, BGŻ Leasing, C‑224/11, EU:C:2013:15, paragraph 30 and the case--law cited, and of 10 November 2016, Baštová, C‑432/15, EU:C:2016:855, paragraph 71 and the case-law cited). The option, left to the Member States, to subject the various elements comprising a single supply to the various rates of VAT applicable to those elements would mean artificially splitting that supply and risk distorting the functioning of the VAT system, in disregard of the case-law referred to in paragraph 22 of the present judgment.
27


That also holds good even in the situation referred to by the referring court, in which it is possible to identify the price corresponding to each distinct element forming part of the single supply. The fact that such identification is possible or that the parties agree on those prices is not capable of justifying an exception to the principles arising from the case-law cited in paragraphs 22 and 23 of the present judgment.
30


As regards, first, the judgment of 25 February 1999, CPP (C‑349/96, EU:C:1999:93), the Court held, in paragraph 29 of that judgment, that the essential features of the transaction concerned must be ascertained in order to determine whether the taxable person is supplying the customer, being a typical customer, with several distinct principal services or with one single service. According to the Court, such a method takes into account the fact, indeed recalled in paragraph 22 above, first, that it follows from Article 2(1) of the Sixth Directive that every supply of a service must normally be regarded as distinct and independent and, second, that a supply which comprises a single service from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. Accordingly, paragraph 29 of that judgment cannot be interpreted as allowing the application of a separate rate of VAT to a concrete and specific element of a single supply. On the contrary, it follows from that paragraph that such an assessment would mean artificially splitting a single supply.
33


The Court, which answered that question in the negative, underlined that, in the situation at issue in the case having given rise to that judgment, to exempt the delivery of goods supplied together with the principal item, those goods being specifically excluded from an exemption by the national legislation, would run counter to the wording and purpose of Article 28(2)(a) of the Sixth Directive, according to which the scope of the derogation laid down by that provision is restricted to what was expressly covered by the national legislation on 1 January 1991 (see, to that effect, judgment of 6 July 2006, Talacre Beach Caravan Sales, C‑251/05, EU:C:2006:451, paragraphs 20 to 22). In that judgment, the Court expressly held that the case-law on the taxation of single supplies did not apply to the exemptions with refund of the tax paid with which Article 28 of the Sixth Directive is concerned (see, to that effect, judgment of 6 July 2006, Talacre Beach Caravan Sales, C‑251/05, EU:C:2006:451, paragraph 24).
34


As regards, fourth, the judgment of 6 May 2010, Commission v France (C‑94/09, EU:C:2010:253), that judgment concerns the compatibility, with Directive 2006/112, of national legislation providing for a selective application of the reduced rate of VAT by a Member State to the transportation of corpses by undertaker’s vehicles, separately from the other services provided by that firm and the supply of goods related thereto. In order to determine whether the selective application of a reduced rate of VAT complied with Articles 96 to 99(1) of Directive 2006/112, the Court held that the question whether a transaction including several elements must be considered to be a single supply was not decisive for the purpose of the exercise by the Member States of the discretion left to them by Directive 2006/112 as regards the application of the reduced rate of VAT (see, to that effect, judgment of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraph 33). Those were the circumstances in which the Court held that it was not necessary to examine whether or not the supply of services by undertakers was to be regarded as a single transaction, but that it was, however, necessary to ascertain whether the transportation of corpses by vehicles constituted a concrete and specific aspect of that category of supply, as set out in Annex III, point 16, to Directive 2006/112, and, if so, to examine whether or not the application of that rate undermines the principle of fiscal neutrality (judgment of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraph 34).