Sinclair Collis Ltd v Commissioners of Customs & Excise.
Date: 2003-06-12
22.  It is settled case-law, first of all, that the exemptions provided for by Article 13 of the Sixth Directive have their own independent meaning in Community law and that they must therefore be given a Community definition (see Case C-358/97   Commission   v   Ireland   [2000] ECR I-6301, paragraph 51, and Case C-315/00   Maierhofer   [2003] ECR I-563, paragraph 25).
23.  Secondly, the terms used to specify the exemptions provided for by Article 13 of the Sixth Directive are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person (see,   inter alia  ,   Commission   v   Ireland  , paragraph 52, and Case C-150/99   Stockholm Lindöpark   [2001] ECR I-493, paragraph 25).
24.  With regard to the exemptions in Article 13B(b) of the Sixth Directive, the provision does not define   "letting"  , nor does it refer to relevant definitions adopted in the legal orders of the Member States (see Case C-326/99   "Goed Wonen "   [2001] ECR I-6831, paragraph 44).
25.  However, it is also settled that the fundamental characteristic of a letting of immovable property for the purposes of Article 13B(b) of the Sixth Directive lies in conferring on the person concerned, for an agreed period and for payment, the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right (see, to that effect,   "Goed Wonen"  , paragraph 55, and Case C-108/99   Cantor Fitzgerald International  [2001] ECR I-7257, paragraph 21).
26.  Moreover, in order to determine the nature of a taxable transaction, regard must be had to all the circumstances in which the transaction in question takes place in order to identify its characteristic features (see Case C-231/94   Faaborg-Gelting Linien   [1996] ECR I-2395, paragraph 12, and   Stockholm Lindöpark  , paragraph 26).
27.  According to the information supplied by the national court, the subject matter of the agreement is not the passive provision of an area or space, together with the grant to the other party of a right to occupy it as though he were the owner and to exclude all other persons from the enjoyment of that right.
28.  That finding is supported, first of all, by the fact that the agreement does not prescribe any precisely defined area or space for the installation of the vending machines at the premises. Contrary to the position in relation to the characteristics of a letting, the location of the machine is material only in so far as it enables the maximum possible number of sales to be generated. Subject to that criterion, under the agreement there is nothing to prevent the machines from being moved about, to a degree, as the site owner wishes.
29.  Secondly, the agreement does not confer on SC the right to control or restrict access to the area where the machines are placed. Whilst it is true that under the agreement SC retains an exclusive right of access to the machines to maintain them, keep them stocked with cigarettes and remove the cash inside, that right concerns only access to the machine itself, in particular its inner mechanism, and not access to that part of the premises where the machine is situated. In any event, according to the information provided by SC at the hearing, the right is restricted to the opening hours of the commercial establishment and cannot be exercised without the site owner's consent. Furthermore, third parties have access to the machines within such practical parameters as are imposed by the site owner, in particular during the opening hours of the establishment, and not according to limits determined by SC.
30.  In those circumstances, the occupation of an area or space at the commercial premises is, under the terms of the agreement, merely the means of effecting the supply which is the subject matter of the agreement, namely the guarantee of exercise of the exclusive right to sell cigarettes at the premises by installing and operating automatic vending machines, in return for a percentage of the profits.