Cripto-índice:
JUDGMENT OF THE COURT OF JUSTICE (Fifth Chamber)
June 12, 2014
«Preliminary ruling procedure – Sixth VAT Directive – Exemptions – Article 13, part B, letter d), numbers 3 and 5 – Concepts of “other securities” and “other negotiable instruments” – Sales promotion system – Discount card – Taxable amount»
In case C‑461/12,
concerning a request for a preliminary ruling, pursuant to Article 267 TFEU, made by the Gerechtshof ’s-Hertogenbosch (Netherlands), by decision of 11 October 2012, received at the Court of Justice on 15 October 2012, in the proceedings between
Granton Advertising B.V.
e
Inspecteur van de Belastingdienst Haaglanden/kantoor Den Haag,
THE COURT OF JUSTICE (Fifth Chamber),
composed of Mr T. von Danwitz, President of the Chamber, and Messrs E. Juhász, A. Rosas (Rapporteur), D. Šváby and C. Vajda, Judges;
Advocate General: Mrs. J. Kokott;
Secretary: Mr. A. Calot Escobar;
having considered the writings on record;
Considering the observations presented:
— the Netherlands Government, by M. Noort and C. Wissels, acting as Agents,
— the Government of the United Kingdom, by C. Murrell, acting as Agent, assisted by R. Hill, Barrister,
— the European Commission, by A. Cordewener and E. Manhaeve, acting as Agents,
having heard the conclusions of the Advocate General, presented in public hearing on October 24, 2013;
dictate the following
Judgment
1 The request for a preliminary ruling concerns the interpretation of Council Directive 77/388/EEC of 17 May 1977, Sixth Directive on the harmonization of the laws of the Member States relating to taxes on turnover – Common system of value added tax: uniform tax base (OJ L 145, p. 1; EE 09/01, p. 54; hereinafter, «Sixth Directive»).
2 The request was made in the context of a dispute between Granton Advertising BV (‘Granton Advertising’) and the Inspecteur van de Belastingdienst Haaglanden/kantoor den Haag (‘Inspecteur’), concerning the subjection of value added tax (‘VAT’) to sales transactions. of discount cards made by Granton Advertising during the years 2001 to 2005.
Legal framework
Union law
3 In title VIII, «Taxable amount», of the Sixth Directive, article 11, part A, of the latter, with the heading: «In the interior of the country», provides in section 3:
«The following will not be included in the tax base:
[…]
b) price reductions and discounts granted to the buyer or recipient of the service with effect at the same time the transaction is carried out;
[…]»
4 In Title
5 According to Article 13, Part B, of the aforementioned Directive:
«Without prejudice to other Community provisions, Member States shall exempt […]
[…]
d) the following operations:
[…]
3. operations, including negotiations, relating to deposits of funds, current accounts, payments, money orders, credits, checks and other commercial instruments, with the exception of the collection of credits;
[…]
5. operations, including negotiation, but excluding deposit and management, relating to shares, participations in companies or associations, debentures and other securities, with the exception of:
— titles representing merchandise,
— the rights or titles set forth in paragraph 3 of Article 5;
[…]»
Dutch law
6 Article 11 of the Wet op de omzetbelasting (Turnover Tax Law) of 28 June 1968 (Staatsblad 1968, no. 329), in the version applicable to the main proceedings, provides:
«1. They will be exempt from the tax under the conditions that must be established by a general provision of the Administration:
[…]
i) the following deliveries of goods and services:
[…]
2° operations, including negotiation, but excluding deposit and management, relating to transferable securities and other securities, with the exception of securities representing merchandise;
[…]
j) the following services:
[…]
2° operations, including negotiation, relating to money transfers, checking accounts, deposits of funds, payments, transfers, credits, checks and other commercial instruments, with the exception of the collection of credits;
[…]»
Main proceedings and preliminary rulings
7 The events relating to the main proceedings occurred during a period of time between 2001 and 2005, during which Granton Advertising, a Dutch company called Granton Marketing BV until 7 June 2004, issued and sold cards called ‘Granton’ (hereinafter ‘Granton cards’). These cards, which were sold to consumers at a price ranging between 15 euros and 25 euros, conferred, in return, the right to purchase or provide a certain number of goods and services under preferential conditions in shops and companies such as restaurants, cinemas, hotels or saunas, which had entered into a contract for this purpose with Granton Advertising (hereinafter ‘affiliated companies’). Granton cards were available at sales offices, which received an amount per card sold from Granton Advertising.
8 From the terms of the standard contract concluded between Granton Advertising and the participating company, cited by the referring court, it appears that the objective of the participating companies, when collaborating with Granton Advertising, was to attract customers who would purchase their goods and services. To this end, the participating companies undertook to accept the Granton cards during the period of validity of the cards presented to them and to provide the goods and/or services specified on each Granton card, for the maximum value indicated on it.
9 Furthermore, it appears from the terms of the aforementioned standard contract that Granton Advertising undertook to manufacture, produce, distribute, promote and sell Granton cards. Once the contract was signed, Granton Advertising did not invoice any amount for the Granton cards to the participating companies nor did it receive any compensation from them.
10 As regards the characteristics of the aforementioned cards, the referring court indicates that each Granton card entitled its holder to a price discount on orders placed with the participating companies whose name appeared on the card in question. The discount was made for the offers indicated on each card and these offers had a different nature according to what was agreed between the participating company and Granton Advertising. These discounts were obtained upon presentation of the card, delivering a coupon included in it or by virtue of the card being signed by the corresponding participating company. Among the other advantages that, in many cases, Granton card holders could also obtain was the acquisition of two units of the proposed good or service for the price of one of them. Furthermore, the Granton cards were designed in such a way that their holder already benefited from the advantages provided from the first use of the card. In some cases, during the validity period of the card, generally six months, it allowed the offers indicated on the card to be used several times or even daily.
11 Furthermore, Granton cards were not personal, but transferable. However, they could not be exchanged for money or goods.
12 In 2005, the Inspecteur proceeded to inspect the accounting books of Granton Advertising. Considering that the sale of Granton cards by said company constituted a transaction subject to VAT, the Inspecteur sent it a supplementary VAT declaration. Following the claim presented by Granton Advertising, the amount of said supplementary declaration amounted to 643,567 euros.
13 Since Granton Advertising, for its part, considered that the sale of Granton cards was exempt from VAT, it brought an appeal before the Rechtbank Breda (Court of First Instance, Breda) against the said decision of the Inspecteur. However, the Rechtbank Breda dismissed the appeal brought by Granton Advertising, considering that the Granton cards did not fall within the concepts of «other securities» or «other commercial instruments» within the meaning of the Sixth Directive, taking into account, above all, the context in which those concepts are framed in the aforementioned Directive and their meaning in the Dutch language and in other language versions of it. Furthermore, according to the Rechtbank Breda, those concepts had to be interpreted restrictively.
14 Granton Advertising appealed against that decision of the Rechtbank Breda before the referring court, the Gerechtshof ’s-Hertogenbosch (Appeal Court of ʼs-Hertogenbosch). That court considers that a broader interpretation can be given to the concepts of «other securities» and «other commercial instruments» than that adopted by the Rechtbank Breda. However, the aforementioned court declares that neither the origin of the Directive, nor the doctrine, nor the existing jurisprudence allow the scope of those concepts to be determined in a context such as that of the main proceedings.
15 In these circumstances, the Gerechtshof ’s-Hertogenbosch decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘1) Should the term “other securities” in Article 13(B)(d)(5) of the Sixth Directive […] be interpreted as including a Granton card, which is a transferable card used to (partially) pay for goods and services? If so, are the issuance and sale of such a card exempt from VAT?
2) If the answer is no, should the term “other commercial paper” in Article 13(B)(d)(3) of the Sixth Directive […] be interpreted as including a Granton card, which is a transferable card used to pay (partially) for goods and services? If so, are the issuance and sale of such a card exempt from VAT?
3) If the Granton card constitutes “another security” or “another commercial effect” in the preceding sense, is it relevant, when determining whether its issuance and sale are exempt from VAT, the fact that due to the use of said card it is practically illusory to tax a proportional part of the price paid for it with said tax?»
On the preliminary questions
16 By its preliminary questions, which must be examined together, the referring court asks, in essence, whether Article 13B(d) of the Sixth Directive must be interpreted as meaning that the sale of a discount card, such as that at issue in the main proceedings, constitutes a transaction relating to ‘other securities’ or ‘other negotiable instruments’, within the meaning of numbers 5 and 3 of that provision, respectively, which refers to certain operations that Member States must exempt from VAT.
Preliminary observations
17 It should be noted that the question of whether Granton cards are subject to VAT and the eventual calculation of VAT depends on the legal and economic characteristics of those cards (see, to that effect, judgment in Commission v Germany, C‑427/98, EU:C:2002:581, paragraph 57 and the case law cited). Therefore, if the questions raised by the court relate, in particular, to the question of the possible exemption of the operation consisting of the sale of those cards, it is necessary to specify, on a preliminary basis, the requirements that regulate the marketing of the aforementioned cards, to the extent that these elements have an impact on the identification of the taxable operation and on the assessment of its nature.
18 In this regard, it appears from the order for reference that the holder of a Granton card can obtain products or services offered by the participating companies under privileged conditions, agreed between them and Granton Advertising, including in particular price discounts. Now, although the wording of the questions referred for a preliminary ruling indicates that the Granton card «is used to pay (partially)» for deliveries of goods and services, it seems that, on the basis of other elements contained in the order for reference, upon presentation of that card by its holder, the member company precisely renounces demanding a part of the normal price, so that said holder does not make any payment for the amount of that discount.
19 Indeed, it must be considered that the fact that the participating company agrees to forego the collection of the amount corresponding to the discount obtained by virtue of those privileged conditions constitutes, as the European Commission has also alleged in its written observations, a price reduction, within the meaning of Article 11, Part A, paragraph 3, letter b) of the Sixth Directive. According to the case law of the Court of Justice, that reduction, which must not be included in the taxable amount of the transaction in question, refers in particular to the difference between the normal retail selling price and the amount of money actually received by the retailer (see, to that effect, the judgments in Boots Company, C‑126/88, EU:C:1990:136, paragraph 22, and Argos Distributors, C‑288/94, EU:C:1996:398, paragraph 16).
20 Furthermore, as regards the taxable basis of the transaction consisting of the sale of Granton cards, it must be noted that the amounts paid by consumers to Granton Advertising for the acquisition of a Granton card cannot be considered to indirectly constitute the consideration, or a part thereof, of services from which such consumers can subsequently benefit from the participating companies. Indeed, there is no sufficiently direct relationship between the amount paid, by those consumers, to obtain the Granton card and the goods or services possibly obtained, by those same consumers, from the participating companies (see, to this effect, the judgments Coöperatieve Aardappelenbewaarplaatsen, 154/80, EU:C:1981:38, paragraph 12, and Hotel Scandic Gåsabäck, C‑412/03, EU:C:2005:47, paragraph 22).
21 In this regard, in addition to the fact that there is no contract between the holders of the Granton cards and the member companies and that these companies do not receive any part of the income obtained by Granton Advertising from the sale of those cards, there is also no necessary relationship between the payment by the consumer to Granton Advertising to obtain a Granton card and the value of the discounts possibly obtained, by the same consumer, in the member companies. The amount of any discounts, which depends in particular on the use of the said card and the availability of the offers in the participating companies, is random and practically impossible to determine in advance (see, by analogy, the judgment in Lebara, C‑520/10, EU:C:2012:264, paragraph 38).
22 In these circumstances, it must be considered, first of all, that, contrary to what the referring court indicates, the use of a Granton card cannot constitute a ‘payment’, within the meaning of the Sixth Directive, in so far as it is, in fact, a price reduction; secondly, that the price reductions agreed upon by the member companies are not included in the tax base of the possible transactions carried out between them and the holders of a Granton card, and, thirdly, that the questions raised by the aforementioned court aim to determine, in particular, whether the operation of sale of Granton cards to consumers – independently of other transactions potentially carried out by the consumers themselves with respect to the member companies – must be exempt from VAT or not.
Regarding the exemption from the sale of Granton cards
23 As regards the question of whether or not the transaction consisting of the sale of Granton cards should be exempt from VAT, it is necessary to determine whether such discount cards fall within the concept of ‘other securities’ or ‘other commercial instruments’ appearing in points 5 and 3 of Article 13, Part B, letter d) of the Sixth Directive, respectively.
24 All the parties that submitted written observations to the Court of Justice, namely the Dutch and United Kingdom Governments and the European Commission, consider that discount cards, such as Granton cards, do not fall within the scope of those concepts and, therefore, their sale does not constitute a transaction exempt from VAT.
25 It should be recalled that, according to the case-law of the Court of Justice, the terms used to designate the exemptions referred to in Article 13 of the Sixth Directive constitute autonomous concepts of EU law which are intended to avoid divergences from one Member State to another when applying the VAT regime (judgment in Nordea Pankki Suomi, C-350/10, EU:C:2011:532, paragraph 22 and case-law cited), and those terms must be interpreted restrictively, since the aforementioned exemptions constitute exceptions to the general principle that VAT is collected on each supply of services carried out for consideration by a taxable person (judgments in Stichting Uitvoering Financiële Acties, 348/87, EU:C:1989:246, paragraph 13, and Skandinaviska Enskilda Banken, C‑540/09, EU:C:2011:137, paragraph 20).
26 In order to determine whether discount cards, such as Granton cards, are covered, on the one hand, by the concept of ‘other securities’ or, on the other, by that of other ‘commercial papers’, as these concepts appear in Article 13B(d) of the Sixth Directive, it is necessary to assess in particular the literal wording of that provision, the context in which those concepts are framed and the objective pursued by the exemption provided for therein. (see in particular, to this effect, Merck, 292/82, EU:C:1983:335, paragraph 12; ebookers.com Deutschland, C‑112/11, UE:C:2012:487, paragraph 12, and RVS Levensverzekeringen, C‑243/11, UE:C:2013:85, paragraph 23).
On the question whether Granton cards fall within the concept of «other securities»
27 As regards the wording of the provision providing for the exemption in question, it should be recalled that, under Article 13B(d)(5) of the Sixth Directive, the Member States exempt in particular transactions relating to ‘shares, participations in companies or associations, debentures and other securities’. Although the aforementioned exemption specifically affects, on the one hand, securities that confer a property right on legal persons and, on the other, securities that represent a debt, it is no less true that the «other securities» referred to in that provision must also be considered, at a minimum, «securities.» Consequently, they must be considered to have a comparable nature to that of the securities specifically mentioned in that provision.
28 This statement is corroborated by the securities expressly excluded from the exemption provided for in that same provision, namely those representing goods and the units and shares the possession of which ensures, in law or in fact, the attribution of ownership or enjoyment of an immovable property or a part thereof, provided that these are considered to be tangible assets in accordance with Article 5(3)(c) of the Sixth Directive (see, to this effect, the judgment in DTZ Zadelhoff, C‑259/11, EU:C:2012:423, paragraph 42). Indeed, the nature of these as ‘securities’, in so far as they represent, in particular, property rights over movable or immovable property, constitutes, despite their exclusion from the exemption provided for by that provision, an indication of what is to be understood by ‘security’, for the purposes of Article 13(B)(d)(5) of the Sixth Directive.
29 As regards the context of that provision, it is necessary to recall the case-law of the Court of Justice according to which transactions exempt from VAT under Article 13B(d) of the Sixth Directive are, by their nature, financial transactions. Although these operations, which are defined according to the nature of the services provided, do not necessarily have to be carried out by banks or financial establishments, they nevertheless fall entirely within the scope of financial operations (see, to that effect, the judgment in Velvet & Steel Immobilien, C‑455/05, EU:C:2007:232, paragraphs 21 and 22 and the case law cited).
30 It should be added, as regards the objectives of the aforementioned provision, that it appears from the case law of the Court of Justice that the purpose of the exemption from VAT of the financial transactions listed in Article 13B(d)(5) of the Sixth Directive consists, in particular, of alleviating the difficulties associated with determining the taxable base and the amount of deductible VAT (judgments in Velvet & Steel Immobilien, EU:C:2007:232, paragraph 24, and Skandinaviska Enskilda Banken, EU:C:2011:137, paragraph 21).
31 As regards the question whether, in the present case, a discount card such as the Granton card must be regarded as constituting ‘another commercial item’ within the meaning of Article 13B(d)(5) of the Sixth Directive, it must be noted, first of all, that when a consumer purchases such a card, he acquires neither a property right over the company Granton Advertising, nor a credit right over that company, nor, on the other hand, any right held by him. relation to those rights. Indeed, the Granton card is characterized by the fact that it only confers on its holder the right to obtain discounts on the prices of products and services offered by member companies.
32 Next, an examination of the essential characteristics of the Granton card, as shown in the documents before the Court of Justice, shows that it has no nominal value and cannot be exchanged for money or goods in the participating companies. In such circumstances, the sale of that card to consumers does not, by its nature, constitute a financial transaction within the meaning of the case law of the Court of Justice on Article 13B(d) of the Sixth Directive (see, to this effect, Velvet & Steel Immobilien, EU:C:2007:232, paragraphs 22 and 23, and Nordea Pankki Suomi, EU:C:2011:532, paragraphs 24 to 27).
33 Finally, to the extent that the tax base of the taxed transaction corresponds to the consideration paid by consumers for the acquisition of Granton cards, the calculation of VAT on that basis cannot present any particular difficulties.
34 Taking into account that the terms of the exemption provided for in Article 13(B)(d) of the Sixth Directive must be interpreted restrictively, as recalled in paragraph 25 of this judgment, it must be considered that discount cards, such as those at issue in the main proceedings, do not fall within the concept of ‘other securities’, within the meaning of Article 13(B)(d)(5) of the aforementioned Directive.
On the question whether Granton cards fall within the concept of ‘other negotiable instruments’
35 It should be recalled that, under Article 13B(d)(3) of the Sixth Directive, Member States exempt transactions relating, in particular, to ‘deposits of funds, current accounts, payments, money orders, credits, checks and other commercial instruments’.
36 Similar to what has been said in paragraph 29 of this judgment, as regards the concept of ‘other securities’, referred to in Article 13, Part B, letter d), number 5, of the Sixth Directive, it must be considered that the operations exempt under number 3 of that provision also fall within the scope of financial operations (see, to this effect, the judgment in Velvet & Steel Immobilien, EU:C:2007:232, paragraph 22).
37 It should be noted that Article 13(B)(d)(3) of the Sixth Directive refers, in particular, to means of payment such as cheques. Well, as has been recalled in paragraphs 18 and 31 of this ruling, although Granton cards give the right to price discounts, they do not constitute, in themselves, a means of payment for the purposes of the aforementioned Directive. In particular, as also noted by the UK Government, although such cards can be transferred and resold at a certain price, their mode of operation does not involve any transfer of money, unlike payments, transfers and cheques.
38 In these circumstances, given that the terms of the exemption provided for in Article 13(B)(d) of the Sixth Directive must be interpreted restrictively, as recalled in paragraph 25 of this judgment, it must be considered that discount cards, such as those at issue in the main proceedings, do not fall within the concept of ‘other securities’, within the meaning of Article 13(B)(d)(3) of the Sixth Directive. Directive.
39 Taking into account the foregoing considerations, the answer to the questions raised must be that Article 13(B)(d) of the Sixth Directive must be interpreted as meaning that the sale of a discount card, such as that at issue in the main proceedings, does not constitute a transaction relating to ‘other securities’ or ‘other commercial instruments’, within the meaning of numbers 5 and 3 of that provision, respectively, which refer to certain transactions which the Member States must exempt. of VAT.
Coasts
40 Since the proceedings are, for the parties to the main proceedings, in the nature of an incident brought before the national court, it is for the national court to rule on costs. Expenses incurred in submitting observations to the Court of Justice, other than those incurred by said parties, cannot be reimbursed.
In light of all of the above, the Court of Justice (Fifth Chamber) declares:
Article 13(B)(d) of Council Directive 77/388/EEC of 17 May 1977, Sixth Directive on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform tax base, must be interpreted as meaning that the sale of a discount card, such as that at issue in the main proceedings, does not constitute a transaction relating to «other securities» or «other commercial purposes», within the meaning of numbers 5 and 3 of the aforementioned provision, respectively, which refers to certain operations that Member States must exempt from value added tax.
Fountain