- State Secretary of Finance wants to increase the tax rate on products of the defendant (seller of sex-stimulating drugs, made from ingredients that fit within a normal diet and that have to be taken orally) because he does not believe that these drugs are food and therefore a higher VAT rate applies.
- The Inspector has imposed VAT assessments on the ground that the supplies of the products are subject to the standard VAT rate.
- The Court ruled that the products are foodstuffs and that the VAT assessments were therefore unfounded.
- Cassation against this has been brought before the Supreme Court.
- The Supreme Court requests an explanation of how foodstuffs are defined in European legislation and regulations that relate to products such as in the present dispute and the wider category to which they belong.
- The referring court also seeks clarification as to how those products should be classified and, in particular, whether the products are supplementary or substitutable to foodstuffs.
- Must the concept of food for human consumption used in point 1 of Annex 111 to the VAT Directive 2006 be interpreted as meaning that, in accordance with Article 2 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002, laying down the general principles and requirements of food law, all substances and products, whether processed, partially processed or unprocessed, intended to be consumed by humans or which can reasonably be expected to be consumed by humans?
If this question is answered in the negative, how should this concept be interpreted?
- If edible or drinkable products cannot be classified as food for human consumption, what criteria should be used to assess whether such products can be considered as products that are normally intended to supplement or replace food?
Cited (recent) case law: Commission / Netherlands, C-41/09; Commission / Spain, C-360/11, C-497/09, C-499/09, and C-502/09; Erotic Center, C-3/09, Commission / Germany, C-109/02; Commission / Spain, C-83/99; C-139/84; AZ, C-499/16;