Město Žamberk v Finanční ředitelství v Hradci Králové, now Odvolací finanční ředitelství.
Date: 2013-02-21
17. First of all, it must be noted, in the light of the concept of ‘sport’ contained in the national law, that it is the Court’s settled case-law that the exemptions referred to in that article constitute independent concepts of European Union law whose purpose is to avoid divergences in the application of the VAT system as between one Member State and another (see, in particular, Case C-349/96 CPP  [1999] ECR I-973, paragraph 15; Case C-434/05 Horizon College  [2007] ECR I-4793, paragraph 15; and Case C-253/07 Canterbury Hockey Club and Canterbury Ladies Hockey Club  [2008] ECR I-7821, paragraph 16).
18. As shown by the title of the chapter in which Article 132 of the VAT Directive falls, exemptions provided for in that article are intended to encourage certain activities in the public interest (see Case C-357/07 TNT Post UK  [2009] ECR I-3025, paragraph 32). However, those exemptions do not concern every activity performed in the public interest, but only those which are listed there and described in great detail (see Horizon College , paragraph 14; Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 18; and Case C-86/09 Future Health Technologies  [2010] ECR I-5215, paragraph 29).
19. The terms used to specify those exemptions are to be interpreted strictly, since the exemptions constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person. However, that requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 should be construed in such a way as to deprive them of their intended effect (Case C-284/03 Temco Europe  [2004] ECR I-11237, paragraph 17; Horizon College , paragraph 16; and Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 17).
20. Accordingly, those terms must be interpreted in the light of the context in which they are used and of the aims and the scheme of the VAT Directive, having particular regard to the underlying purpose of the exemption in question (see, to that effect, Temco Europe , paragraph 18; Case C-428/02 Fonden Marselisborg Lystbådehavn  [2005] ECR I-1527, paragraph 28; and Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 17).
21. As regards Article 132(1)(m) of the VAT Directive, it must be pointed out that, according to its wording, that provision covers taking part in sport and physical education in general. Having regard to that wording, the provision is not intended to confer the benefit of the exemption under it only on certain types of sport (see, to that effect, Canterbury Hockey Club and Canterbury Ladies Hockey Club , paragraph 27).
22. Likewise, Article 132(1)(m) of the VAT Directive does not require, for it to be applicable, that the sporting activity be practised at a particular level, for example, at a professional level, or that the sporting activity at issue be practised in a particular way, namely in a regular or organised manner or in order to participate in sports competitions, provided, however, that engagement in that activity is not in a context of pure rest and of amusement.
23. As regards the aim of Article 132(1)(m) of the VAT Directive, it must be noted that that provision has the objective of encouraging certain activities in the public interest, namely services closely linked to sport or physical education which are provided by non-profit-making organisations to persons taking part in sport or physical education. Accordingly, the provision seeks to promote such participation by large sections of the population.
27. 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 ly, if there are two or more distinct supplies or one single supply and, secondly, whether, in the latter case, that single supply falls within the exemption in question (see, to that effect, Case C-41/04 Levob Verzekeringen and OV Bank  [2005] ECR I-9433, paragraph 19; Case C-111/05 Aktiebolaget NN  [2007] ECR I-2697, paragraph 21; and Joined Cases C-497/09, C-499/09, C-501/09 and C-502/09 Bog and Others  [2011] ECR I-1457, paragraph 52).
28. 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 Bank , paragraph 22; Case C-425/06 Part Service  [2008] ECR I-897, paragraph 53; and Bog and Others , paragraph 53). 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 (see, in particular, CPP , paragraph 30; Levob Verzekeringen and OV Bank , paragraph 21; and Bog and Others , paragraph 54 and case-law cited).
29. In order to determine whether a single complex supply must be categorised as a supply closely linked to sport within the meaning of Article 132(1)(m) of the VAT Directive although that supply also includes elements not having such a link, all the circumstances in which the transaction takes place must be taken into account in order to ascertain its characteristic elements and its predominant elements must be identified (see, to that effect, in particular, Case C-231/94 Faaborg-Gelting Linien  [1996] ECR I-2395, paragraphs 12 and 14; Levob Verzekeringen and OV Bank , paragraph 27; and Bog and Others , paragraph 61).
30. It follows from the case-law of the Court that the predominant element must be determined from the point of view of the typical consumer (see, to that effect, in particular, Levob Verzekeringen and OV Bank , paragraph 22, and Case C-276/09 Everything Everywhere  [2010] ECR I-12359, paragraph 26) and having regard, in an overall assessment, to the qualitative and not merely quantitative importance of the elements falling within the exemption provided for under Article 132(1)(m) of the VAT Directive in relation to those not falling within that exemption (see, to that effect, Bog and Others , paragraph 62).
31. In the context of the cooperation established by Article 267 TFEU, it is for the national courts to determine whether, in a particular case, the taxable person makes a single supply falling within that exemption, and to make all definitive findings of fact in that regard (see, to that effect, CPP , paragraph 32; Levob Verzekeringen and OV Bank , paragraph 23; and Bog and Others , paragraph 55). However, it is for the Court to provide the national courts with all the guidance as to the interpretation of European Union law which may be of assistance in adjudicating on the case pending before them (see Levob Verzekeringen and OV Bank , paragraph 23, and Case C-392/11 Field Fisher Waterhouse  [2012] ECR, paragraph 20).
32. As regards the existence of a single complex supply in the main proceedings, it is necessary to examine whether the facilities in the aquatic park at issue form a whole so that access to the whole constitutes a single supply which it would be artificial to split. In that regard, if, as in this case, the only type of entrance ticket offered for the aquatic park gives 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 its use during the period of the entrance ticket’s validity, that fact constitutes a strong indication of the existence of a single complex supply.
36. An approach consisting in taking account of the intention of each visitor taken individually as to the use of the facilities which are made available would be contrary to the objectives of the VAT system of ensuring legal certainty and a correct and straightforward application of the exemptions provided for in Article 132 of the VAT Directive. In that regard, it should be pointed out that, to facilitate the measures necessary for the application of VAT, regard must be had, save in exceptional cases, to the objective character of the transaction in question (see, to that effect, Case C-4/94 BLP Group  [1995] ECR I-983, paragraph 24; Case C-108/99 Cantor Fitzgerald International  [2001] ECR I-7257, paragraph 33; and Case C-409/04 Teleos and Others  [2007] ECR I-7797, paragraph 39).