Hotel Scandic Gåsabäck AB v Riksskatteverket.
Date: 2005-01-20
19. The Greek and Swedish Governments take the view that Articles 5(6) and 6(2)(b) of the Sixth Directive extend the scope of taxable transactions in that even transfers of goods or services which are not effected ‘for consideration’ within the meaning of Article 2 of that directive are rendered subject to VAT. It follows from those provisions, read in conjunction with Article 11A, that the purpose of the directive is to prevent a taxable person or members of his staff from enjoying unjustified advantages over ordinary consumers (see Case C‑415/98 Bakcsi  [2001] ECR I‑1831, paragraph 42, and Joined Cases C‑322/99 and C‑323/99 Fischer and Brandenstein  [2001] ECR I‑4049, paragraph 56). To that end, the Sixth Directive imposes tax not only on transfers free of charge but also on transfers for a price which is lower than the cost price.
21. According to the general rule stated in Article 11A(1)(a) of the Sixth Directive, the taxable amount for the supply of goods or services for consideration is the consideration actually received for them by the taxable person. That consideration is thus the subjective value, that is to say, the value actually received, and not a value estimated according to objective criteria (see Case 154/80 Coöperatieve Aardappelenbewaarplaats  [1981] ECR 445, paragraph 13; Case 230/87 Naturally Yours &
x20; Cosmetics  [1988] ECR 6365, paragraph 16; Case C‑126/88 Boots Company  [1990] ECR I‑1235, paragraph 19; Case C‑258/95 Fillibeck  [1997] ECR I‑5577, paragraph 13; and Case C‑404/99 Commission  v France  [2001] ECR I‑2667, paragraph 38). Moreover, that consideration must be capable of being expressed in money ( Coöperatieve Aardappelenbewaarplaats , paragraph 13; Naturally Yours Cosmetics , paragraph 16; and Fillibeck , paragraph 14).
22. As the Advocate General rightly stated in point 35 of his Opinion, the fact that the price paid for an economic transaction is higher or lower than the cost price is irrelevant to the question whether a transaction is to be regarded as a ‘transaction effected for consideration’. The latter concept requires only that there be a direct link between the supply of goods or the provision of services and the consideration actually received by the taxable person (see, to that effect, Case 102/86 Apple and Pear Development Council  [1988] ECR 1443, paragraph 12).
23. Articles 5(6) and 6(2) of the Sixth Directive treat certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration. The purpose of those provisions is to ensure equal treatment as between a taxable person who applies goods or services for his own private use or for that of his staff and a final consumer who acquires goods or services of the same type (see Case C‑230/94 Enkler  [1996] ECR I‑4517, paragraph 35; Fillibeck , cited above, par agraph 25; and Fischer and Brandenstein , cited above, paragraph 56). In pursuit of that objective, Articles 5(6) and 6(2)(a) prevent a taxable person who has been able to deduct VAT on the purchase of goods used for his business from escaping payment of that tax when he applies those goods from his business for his own private use or that of his staff and from thereby enjoying advantages to which he is not entitled by comparison with an ordinary consumer who buys goods and pays VAT on them (see Case C‑20/91 De Jong  [1992] ECR  I‑2847, paragraph 15; Enkler , cited above, paragraph 33; Bakcsi , cited above, paragraph 42; and Fischer and Brandenstein , paragraph 56). Similarly, Article 6(2)(b) of the Sixth Directive prevents a taxable person or members of his staff from obtaining, free of tax, services provided by the taxable person for which a private individual would have to have paid VAT.
24. It is apparent from the order for reference that, in future, the members of Scandic’s staff will continue to pay an actual consideration for the meals supplied by the company. Since the transaction in question is effected for consideration within the meaning of Article 2 of the Sixth Directive, there is no reason to apply Articles 5(6) and 6(2)(b). Those provisions relate only to transactions effected free of charge which are treated as supplies effected for consideration for VAT purposes.
26. The order for reference nowhere indicates that the amount to be paid in future by the members of Scandic’s staff for the provision of a meal in the company’s canteen will be symbolic. In any event, the risk referred to by the Swedish Government may be dealt with only by a request by the Member State concerned for authorisation under Article 27 of the Sixth Directive to introduce measures derogating from that directive in order to prevent certain types of tax evasion or avoidance.
28. It should be observed that, under the general rule laid down in Article 11A(1)(a) of the Sixth Directive, the taxable amount for the supply of goods or the provision of a service is formed by the consideration actually received by the taxable person ‘from the purchaser, the customer or a third party … including subsidies directly linked to the price of such supplies’.
29. The part of that phrase on which the Swedish Government relies relates to situations involving three parties, namely the party which grants the subsidy, the supplier of the goods or the provider of the services which benefits from it and the purchaser of the goods or services (see Case C‑184/00 Office des produits wallons  [2001] ECR I‑9115, paragraph 10). In the present case, only two parties are involved, namely Scandic as the supplier of goods or provider of services and the members of its staff. Moreover, as is clear from Article 11A(1)(a) of the Sixth Directive, the consideration is always paid by ‘the purchaser, the customer or a third party’ and never by the supplier or provider itself. The cost incurred by the taxpayer itself in providing meals to its staff therefore cannot form part of the taxable amount for the transaction in question.