Finanzamt Heidelberg v ISt internationale Sprach- und Studienreisen GmbH.
Date: 2005-10-13
19. To answer that question, it is necessary to ask whether a company such as iSt acts in its own name and whether it qualifies as a trader covered by the special scheme for travel agents and uses for its operations supplies and services provided by other taxable persons.
20. First, according to the case-law, it is for the national court before which a dispute concerning the application of Article 26 of the Sixth Directive is brought to inquire, having regard to all the details of the case, and in particular the nature of the contractual obligations of the trader concerned towards its customers, whether or not that condition is met (see, to that effect, Case C-163/91 Van Ginkel  [1992] ECR I-5723, paragraph 21). Furthermore, as the order for reference makes clear, it is not in dispute that the applicant in the main proceedings does not act as agent for the operations to which that decision primarily applies.
21. Second, as regards the status of a trader covered by Article 26 of the Sixth Directive, it should be noted that, according to the case-law, the services provided by travel agents and tour operators most frequently consist of multiple services, in particular transport and accommodation, supplied either within or outside the territory of the Member State in which the undertaking has established its business or has a fixed establishment. The application of the normal rules on place of taxation, taxable amount and deduction of input tax would, by reason of the multiplicity of services and the places in which they are provided, entail practical difficulties for those undertakings of such a nature as to obstruct their operations. In order to adapt the applicable rules to the specific nature of such operations, the Community legislature set up a special VAT scheme in Article 26(2), (3) and (4) of the Sixth Directive (see Van Ginkel , paragraphs 13 to 15; Joined Cases C-308/96 and C-94/97 Madgett and Baldwin  [1998] ECR I-6229, paragraph 18, and Case C-149/01 First Choice Holidays  [2003] ECR I-6289, paragraphs 23 and 24).
22. The Court has held in that regard that the underlying reasons for the special scheme for travel agents and tour operators are equally valid where the trader is not a travel agent or tour operator within the normal meaning of those terms, but effects identical transactions in the context of another activity, such as that of hotelier. To interpret Article 26 of the Sixth Directive as applying solely to traders who are travel agents or tour operators within the normal meaning of those terms would mean that identical services would come under different provisions depending on the formal classification of the trader ( Madgett and Baldwin , paragraphs 20 and 21).
26. It is not ruled out in that respect that traders supplying services usually associated with travel might be required to use travel supplies acquired from third parties which, compared with the other supplies of those traders, represent a small proportion of the total package. Those bought-in services do not therefore constitute for customers an aim in itself, but a means of better enjoying the principal service supplied by the trader (see, to that effect, Madgett and Baldwin , paragraph 24).
27. It should be noted that in such circumstances the services bought in from third parties remain purely ancillary in relation to the in-house services, and the trader should not be taxed under Article 26 of the Sixth Directive ( Madgett and Baldwin , paragraph 25).
46. It should be noted that, according to settled case-law, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly (see, inter alia, Case C-472/03 Arthur Andersen  [2005] ECR I-1719, paragraph 24 and the case-law cited).