Regards Photographiques SARL v Ministre de l'Action et des Comptes publics.
Date: 2019-09-05
25


In determining the scope of the option given to Member States of applying the reduced rate of VAT to the supply of photographs, as laid down in the provisions of EU law whose interpretation is sought, both the wording and context of those provisions and the objective pursued by the legislation in question must be taken into account (see, to that effect, judgments of 18 January 2017, Sjelle Autogenbrug, C‑471/15, EU:C:2017:20, paragraph 29 and the case-law cited, and of 16 November 2017, Kozuba Premium Selection, C‑308/16, EU:C:2017:869, paragraph 38).
32


As regards, in the second place, the context of the provisions whose interpretation is sought, it must be recalled that the application of the reduced rate of VAT to the supply of works of art by their creator or his successors in title under Article 103(2)(a) of the VAT Directive constitutes an exception to the application of the standard rate of VAT. Therefore, that provision, as well as point 2 of Article 311(1) of that directive and point 7 of Part A of Annex IX thereto, which identify the photographs to which that reduced rate may be applied, must be interpreted strictly. However, that rule of strict interpretation does not mean that the terms used to set out the cases in which that reduced rate is applied should be construed in such a way as to deprive it of its effects. In fact, the interpretation of those terms must conform to the objectives pursued by that arrangement and respect the requirements of tax neutrality (see, by analogy, judgments of 17 June 2010, Commission v France, C‑492/08, EU:C:2010:348, paragraph 35, and of 29 November 2018, Mensing, C‑264/17, EU:C:2018:968, paragraphs 22 and 23 and the case-law cited).
33


Furthermore, it is settled case-law that the terms contained in the VAT Directive are objective in nature and apply without regard to the purpose or results of the transactions concerned (judgment of 11 July 2018, E LATS, C‑154/17, EU:C:2018:560, paragraph 35 and the case‑law cited).
35


On the other hand, interpreting those provisions as meaning that the application of the reduced rate of VAT is restricted to photographs that, in addition, have artistic character would make the application of that reduced rate dependent on the judgement of the competent national tax authority as to their artistic merit, such merit being a subjective, not objective, characteristic. As the Court has previously pointed out, the artistic merit of an article is defined essentially by reference to subjective and indeterminate criteria (judgments of 27 October 1977, Westfälischer Kunstverein, 23/77, EU:C:1977:171, paragraph 3, and of 13 December 1989, Raab, C‑1/89, EU:C:1989:648, paragraph 25).
36


Furthermore, an interpretation whereby eligibility for the reduced rate of VAT would be reserved solely to photographs that have artistic character may result in photographs, such as, for example, photographs depicting family events such as weddings, being treated differently for VAT purposes, depending on whether or not the tax authority considers them to be artistic, even though those photographs may have similar characteristics and meet the same consumer needs. However, the principle of fiscal neutrality precludes treating goods or supplies of services that are similar from the point of view of the typical consumer, which are thus in competition with each other, differently for VAT purposes (see, to that effect, judgment of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraphs 52 and 53).
42


It must be borne in mind that, as regards the application of the reduced rate of VAT provided for in Article 98(1) and (2) of the VAT Directive, the Court has held that there is nothing in the text of that provision which requires that it be interpreted as meaning that that reduced rate must be applied to all aspects of a category of supply covered by Annex III to that directive. Accordingly, subject to compliance with the principle of fiscal neutrality inherent in the common system of VAT, Member States may apply a reduced rate of VAT to concrete and specific aspects of a category of supplies covered by Annex III to the VAT Directive (see, to that effect, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraphs 25 to 27; of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraphs 43 and 44; and of 11 September 2014, K, C‑219/13, EU:C:2014:2207, paragraph 23).
43


The possibility of applying the reduced rate of VAT is justified, inter alia, by the fact that, since that rate is the exception to the application of the standard rate fixed by each Member State, the restriction of its application to concrete and specific aspects of the category of supply in question is consistent with the principle that exemptions or derogations must be interpreted restrictively (see, to that effect, judgment of 9 November 2017, AZ, C‑499/16, EU:C:2017:846, paragraph 24 and the case-law cited).
46


It follows that the exercise of the possibility granted to the Member States of restricting the application of the reduced rate of VAT to a limited category of photographs covered by point 7 of Part A of Annex IX to the VAT Directive is subject to the twofold condition, first, that they isolate, for the purposes of the application of the reduced rate, only concrete and specific aspects of those photographs and, secondly, that they comply with the principle of fiscal neutrality. Those conditions seek to ensure that Member States make use of that possibility only under conditions which ensure the correct and straightforward application of the reduced rate chosen and the prevention of any possible evasion, avoidance or abuse (see, by analogy, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraph 30, and of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraph 45).
47


According to the Court’s settled case-law, although it is for the national court to determine whether national legislation, such as that at issue in the main proceedings, is compatible with the requirements stemming from EU law, it is for the Court to provide it with any helpful guidance to resolve the dispute before it (see, to that effect, judgment of 12 July 2012, EMS-Bulgaria Transport, C‑284/11, EU:C:2012:458, paragraph 51 and the case-law cited).
49


In accordance with the case-law recalled in paragraph 46 of this judgment, photographs that have artistic character for the purposes of that national legislation must, in the first place, constitute a concrete and specific aspect of the photographs covered by point 7 of Part A of Annex IX to the VAT Directive, which means that they are, as such, identifiable separately from the other photographs covered by that point. Such identification presupposes the existence of objective, clear and precise criteria in the national legislation, making it possible to determine precisely the photographs to which that legislation reserves the application of the reduced rate of VAT (see, by analogy, judgments of 6 May 2010, Commission v France, C‑94/09, EU:C:2010:253, paragraphs 33 and 35; of 27 February 2014, Pro Med Logistik and Pongratz, C‑454/12 and C‑455/12, EU:C:2014:111, paragraph 47; and of 9 November 2017, AZ, C‑499/16, EU:C:2017:846, paragraphs 25 and 28).