The Queen, on the application of TNT Post UK Ltd v The Commissioners for Her Majesty’s Revenue and Customs.
Date: 2009-04-23
22. It is clear from the case-law that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia, Case C-210/06 Cartesio  [2008] ECR I-0000, paragraph 46).
27. In this connection, it is important to note, first of all, that the syntax of the whole phrase ‘public postal services’ clearly shows that the words in fact refer to the actual organisations which engage in the supply of the services to be exempted. In order to be covered by the wording of the provision, the services must therefore be performed by a body which may be described as ‘the public postal service’ in the organic sense of that expression (see Case 107/84 Commission v Germany  [1985] ECR 2655, paragraph 11).
31. Secondly, the terms used to specify an exemption such as that set out in Article 13A(1)(a) of the Sixth Directive are to be interpreted strictly, since it constitutes an exception to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person. Nevertheless, the interpretation of those terms must be consistent with the objectives pursued by those exemptions and comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT. Thus, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 13 should be construed in such a way as to deprive the exemptions of their intended effect (see, to that effect, Case C-445/05 Haderer [2007] ECR I‑4841, paragraph 18 and the case-law cited).
32. Thus, as the title which Article 13A of the Sixth Directive carries, the exemptions provided for in that Article are intended to encourage certain activities in the public interest.
37. Such an interpretation is not contrary to the principle of fiscal neutrality, which precludes economic operators carrying out the same transactions from being treated differently in relation to the levying of VAT (see Case C‑363/05 JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies [2007] ECR I‑5517, paragraph 46 and the case-law cited).
38. As the Advocate General observes in point 63 of her Opinion, the assessment of the comparability of the services supplied hinges not only on the comparison of individual services, but on the context in which those services are supplied.
39. As the facts in the main proceedings demonstrate, on account of the obligations described in paragraph 12 of this judgment, which are required under its licence and connected with its status as the universal service provider, an operator such as Royal Mail supplies postal services under a legal regime which is substantially different to that under which an operator such as TNT Post provides such services.
40. Consequently, the answer to the first question is that term ‘public postal services’ in Article 13A(1)(a) of the Sixth Directive must be interpreted to cover operators, whether they are public or private, who undertake to provide, in a Member State, all or part of the universal postal service, as defined in Article 3 of Directive 97/67.
The second and third questions
45. Such an interpretation is dictated, in particular, by the need to observe the principle of fiscal neutrality. The obligations on an operator such as Royal Mail, which – as is apparent from paragraph 39 of this judgment – distinguish the situation in which that operator supplies postal services from that in which an operator such as TNT provides such services, concern only the postal services supplied in its capacity as the universal service provider.
46. In the same way, it follows from the requirements set out in paragraph 44 of this judgment and, in particular, from the nature of the objective pursued by Article 13A(1)(a), which is to encourage an activity in the public interest, that the exemption is not to apply to specific services dissociable from the service of public interest, including services which meet special needs of economic operators (see, to that effect, Case C‑320/91 Corbeau [1993] ECR I-2533, paragraph 19).
48. That interpretation is, moreover, confirmed by recital 15 in the preamble to Directive 97/67, from which it is apparent that the option to negotiate contracts with customers individually does not correspond, in principle, with the concept of universal service provision.