Belgian State v Pierre Henfling and Others.
Date: 2011-07-14
29. That exemption is based on practical considerations, in that gambling transactions do not lend themselves easily to the application of VAT, and not, as is the case with certain public interest services supplied in the social sector, on a desire to afford those activities more advantageous VAT treatment (see Case C-89/05 United Utilities  [2006] ECR I-6813, paragraph 23, and Case C-58/09 Leo-Libera  [2010] ECR I-0000, paragraph 24).
30. The betting transaction referred to in Article 13(B)(f) is characterised by the offer to customers placing bets of a chance of winning in consideration for accepting the risk of having to pay for winnings ( United Utilities , paragraph 26).
31. The Court held that the provision of call centre services to a telephone bookmaking organiser, which entails the staff of the supplier of those services accepting bets on behalf of the organiser, does not constitute a betting transaction within the meaning of Article 13(B)(f) and cannot, therefore, qualify for the exemption from VAT laid down by that provision ( United Utilities , paragraph 29).
33. Such involvement in his own name means that, unlike the case giving rise to the United Utilities  judgment, as is stated in paragraph 27 thereof, a legal relationship is brought about not directly between the better and the undertaking on behalf of which the operator involved acts, but between that operator and the better, on the one hand, and between that operator and that undertaking, on the other.
35. Accordingly, that provision creates the legal fiction of two identical supplies of services provided consecutively. Under that fiction, the operator, who takes part in the supply of services and who constitutes the commission agent, is considered to have, firstly, received the services in question from the operator on behalf of whom it acts, who constitutes the principal, before providing, secondly, those services to the client himself. It follows that, as regards the legal relationship between the principal and the commission agent, their respective roles of service provider and payer are notionally inversed for the purposes of VAT.
36. Since Article 6(4) of the Sixth Directive comes under Title V of that directive, headed ‘Taxable transactions’, and is couched in general terms, without containing restrictions as to its scope or its extent, the fiction created by that provision also concerns the application of VAT exemptions under the Sixth Directive. It follows that, if the supply of services in which the commission agent takes part is exempt from VAT, that exemption applies likewise to the legal relationship between the principal and the commission agent.
40. In the procedure referred to in Article 267 TFEU, it is for the national court hearing a dispute concerning the application of Article 6(4) of the Sixth Directive 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, in relation to Article 26 of the Sixth Directive, Case C-163/91 Van Ginkel [1992] ECR I-5723, paragraph 21, and Case C‑200/04 ISt  [2005] ECR I‑8691, paragraphs 19 and 20).
41. However, the Court of Justice, which is called on to provide an answer of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment in the particular case before it (see Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union  [2007] ECR I-10779, paragraph 85, and Case C-73/08 Bressol and Others [2010] ECR I-0000, paragraph 65).