The Court of Justice (ECJ) ruled on whether VAT can be applied to the sale and/or hire of oxygen concentrators at the standard rate, while reduced-rating applied to the sale of medical oxygen cylinders. The held that the principle of fiscal neutrality cannot require a member state which opts to apply a reduced rate to specific products in Annex III to extend that reduced rate to oxygen concentrators, even if such devices are perceived by the consumer as being similar to products to which that reduced rate applies.
Summary
The ECJ considered whether Oxycure Belgium SA (‘Oxycure’) was liable to pay VAT on the sale and rental of ‘oxygen concentrators’ and accessories intended for medical treatment with oxygen. In particular, the ECJ considered whether the Principal VAT Directive (PVD), art. 98(1) and (2) and Annex III, points 3 and 4, read in the light of the principle of fiscal neutrality, stops national legislation, such as that in Belgium, which provides that standard-rating applies to the supply, or rental, of oxygen concentrators, even though that legislation provides for a reduced rate to apply to the supply of oxygen cylinders.
‘Oxygen concentrators’ comprise a part whose purpose is to concentrate the oxygen in the ambient air and a nasal cannula or oxygen mask and an oxygen intake hose, which form an integral part of the appliance. Oxygen concentrators allow homebased oxygen therapy for patients suffering from a respiratory insufficiency or other serious impairment requiring oxygen treatment, whose condition can no longer be improved by the use of aerosols and bronchodilators.
Decision
Article 98(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and Annex III, points 3 and 4, thereto, read in the light of the principle of fiscal neutrality, does not preclude national legislation, such as that at issue in the main proceedings, which provides that the standard rate of value added tax is applicable to the supply or rental of oxygen concentrators, while that legislation provides for the application of the reduced value added tax rate on the supply of oxygen cylinders.
Source Curia
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