Metropol Spielstätten Unternehmergesellschaft (haftungsbeschränkt) v Finanzamt Hamburg-Bergedorf.
Date: 2013-10-24
28. In that regard, it should be borne in mind that, under Article 401 of the VAT Directive, ‘[that] Directive shall not prevent a Member State from maintaining or introducing taxes … on betting and gambling … or, more generally, any taxes, duties or charges which cannot be characterised as turnover taxes …’ There is nothing in the wording of that provision, therefore, to preclude Member States from levying, cumulatively on a particular transaction, VAT and a special tax that cannot be characterised as a turnover tax (see, to that effect, Case 73/85 Kerrutt  [1986] ECR I‑2219, paragraph 22).
29. As regards, more specifically, betting and gaming, the Court has ruled that Article 135(1)(i) of the VAT Directive – which provides, inter alia, that forms of gambling may be exempted from VAT ‘subject to the conditions and limitations laid down by each Member State’ – must be interpreted as meaning that the exercise of the discretionary power of the Member States to fix conditions and limitations on the VAT exemption provided for under that provision allows those States to exempt from that tax only certain forms of betting and gaming (Case C‑58/09 Leo-Libera  [2010] ECR I‑5189, paragraph 39).
30. The Court also ruled, in paragraph 38 of the judgment in Leo-Libera , that the fact that the amount of an unharmonised tax on betting and gaming, payable by certain organisers and operators of forms of betting and gaming subject to VAT, may be adjusted according to the VAT owed in respect of that activity, is irrelevant in the light of the principle of fiscal neutrality. The Court has thus already confirmed that EU law does not, in principle, preclude VAT and another general tax on games of chance from being levied cumulatively, provided that that general tax cannot be characterised as a tax on turnover.
36. Moreover, the Court has found that, as can be seen from the first subparagraph of Article 1(2) of the VAT directive, one of the essential characteristics of VAT is that it is proportional to the price of the goods or services concerned (see, to that effect, Case C‑200/90 Dansk Denkavit and Poulsen Trading  [1992] ECR I‑2217, paragraph 11; Pelzl and Others , paragraph 25; and Joined Cases C‑283/06 and C‑312/06 KÖGÁZ and Others  [2007] ECR I‑8463, paragraph 40).
38. In that regard, the principle that VAT must be proportionate can relate only to the taxable amount. Although that amount usually corresponds to the price payable by the final consumer as consideration for the supply of goods or services, the very wording of Article 73 of the VAT Directive makes it clear that that is not always necessarily the case. Under that provision, the taxable amount is made up of everything which constitutes consideration ‘obtained’ by the supplier, in return for the supply, from the customer ‘or a third party, including subsidies directly linked to the price of the supply’. Accordingly, the taxable amount is determined by what the taxable person actually receives as consideration, and not by what one particular service user pays in a specific case (see, to that effect, inter alia, Case C‑149/01 First Choice Holidays  [2003] ECR I‑6289, paragraphs 28 to 31 and the case‑law cited).
40. Furthermore, the Court has ruled that, in the case of slot machines which, pursuant to mandatory statutory requirements, are set in such a way that they pay out as winnings on average at least 60% of the stakes inserted, the consideration actually received by the operator in return for making the machines available consists only of the proportion of the stakes which he can actually take for himself ( Glawe , paragraph 9). Although, in Glawe , the Court was not required to resolve the issue of whether the principle of ‘individual taxation’ required the calculation of the taxable amount to take account of the individual stake for a game or a series of games, that is to say, the stake inserted by a particular player, it is clear from paragraphs 5 and 14 of the judgment in Glawe , read in the light of points 27 to 30 of the Opinion of Advocate General Jacobs in that case, that the Court was of the view that it did not.
42. In those circumstances, the consideration actually received by an operator in return for making gaming machines available is subject to ‘mandatory statutory requirements’ and, as a result, consists only of ‘the proportion of the stakes which he can actually take for himself’ (see Glawe , paragraph 9, and Case C‑377/11 International Bingo Technology  [2012] ECR I‑0000, paragraph 26), that is to say, the cash receipts after a set interval.
47. In order to provide the referring court with a useful answer, it should first of all be noted that, according to settled case-law, the objectives of, in particular, consumer protection and the prevention of incitement to squander money on gambling, as well as the general need to preserve public order represent overriding reasons in the public interest which may be used to justify restrictions on freedom to provide services, and, in the absence of harmonisation at EU level in the field of gaming legislation, it is for each Member State to determine in that area, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected, so long as the restrictive measures imposed satisfy the conditions laid down in the case-law of the Court as regards their proportionality (see, to that effect, Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraphs 56, 57 and 59 and the case-law cited).
48. More specifically, the introduction of a ‘price regulating’ system and/or a statutory limit on gaming machine users’ losses, was tacitly approved in principle by the Court in Glawe , in particular in view of the measures for levying VAT. In that judgment, the Court based its decision on a statutory winnings rate of 60% and stated that those winnings, which had to be paid out under German law, could not be included in the taxable amount (see Glawe , paragraph 9). Accordingly, the introduction, in substance, of a restriction on players’ losses in games of chance and, by extension, a restriction on the revenue obtained by operators of those games has already been incorporated into EU law.
56. As regards, first, the principle of fiscal neutrality, to which the Finanzgericht Hamburg refers in that context, it should be borne in mind that this principle, which constitutes a fundamental principle of the common system of VAT, is the reflection in the field of VAT of the principle of equal treatment. One of the consequences of this principle is that taxable persons must not be treated differently in respect of similar supplies which are in competition with each other (see, inter alia, Case C‑310/11 Grattan  [2012] ECR I‑0000, paragraph 28 and the case-law cited).
57. However, as the Commission rightly pointed out, the principle of fiscal neutrality in the field of VAT does not create an obligation to guarantee equal treatment and neutrality outside the framework of that harmonised system. Accordingly, since it is possible for the VAT owed to be offset, pursuant to the legislation at issue in the main proceedings, against an unharmonised tax, and not vice versa, if that legislation were to give rise to any doubts as to observance of the principle of equal treatment, such doubts would relate to that unharmonised tax rather than to VAT. In any event, no such doubts arise in the main proceedings, as the referring court has explained that Metropol did not have to pay the casino tax.
58. Moreover, the Court has found, in response to a line of argument which was essentially identical to that set out in paragraph 56 above, that the fact that the amount of an unharmonised tax on gaming, payable by certain organisers and operators of betting and gaming subject to VAT, may be adjusted according to the VAT owed in respect of that activity, is irrelevant in the light of the principle of fiscal neutrality (see Leo-Libera , paragraph 38 and the case-law cited).