On 7 October 2019, the European Court of Justice gave its judgment in case C-47/19 (HA). It answers the question if sailing and surfing tuition is exempt from VAT.
HA operates two surfing and sailing schools in Germany, one of which is located on Fehmarn (Schleswig-Holstein) and the other in Hamburg. For this purpose, he employs several surfing and sailing instructors and also teaches a part of the courses themselves.
HA generated revenues from surfing and sailing lessons, renting and selling surf items, and accommodating students. The surfing and sailing courses were partly organized for schools or universities where they belonged to the sports program or vocational training of the sports teachers and were included in the grades. The costs of these courses have in certain cases been borne by the school or university.
The competent authority did not issue HA with a certificate of exemption under Paragraph 4 (21) of the UstG that its surfing and sailing schools were preparing for a profession or an examination before a legal person under public law.
Nevertheless, HA declared – in addition to taxable ones – VAT-free transactions, most of which were obtained through surfing and sailing courses conducted with school classes, school sports groups or university courses.
The Finanzamt Hamburg-Barmbek-Uhlenhorst found that the conditions for a tax exemption for those transactions had not been met.
The Finanzgericht Hamburg decided to refer the following questions to the Court for a preliminary ruling:
- Does the concept of school and university tuition in Article 132 (1) (i) and (j) of Directive 2006/112 also cover surfing and sailing lessons? Is it sufficient for such instruction to be offered in at least one school or university in the Member State?
- Is it necessary for the adoption of a school or university course within the meaning of Article 132 (1) (i) and (j) of Directive 2006/112 to be graded? Or is it sufficient that the surfing or sailing course in the context of an event of the school or college, such as a class trip?
- Can the recognition of a surfing and sailing school as an institution with a similar objective within the meaning of Article 132 (1) (i) of Directive 2006/112 be governed by the rules of school or university law, including external surfing or sailing courses? Part of physical education or higher education of sports teachers with grades or other credentials, and / or a public interest in sports? Is such a recognition necessary for a direct or indirect reimbursement by the school or the university for the courses?
- Do surfing or sailing courses in the context of a class trip constitute a service closely related to child and youth care within the meaning of Article 132 (1) (h) of Directive 2006/112; if so, is a certain period of care required?
- Does the wording ‘school and university tuition’ given by private tutors in Article 132 (1) (j) of Directive 2006/112 presuppose that the taxpayer personally gives the tuition?
The ECJ rules as follows:
For these reasons, the Court (Ninth Chamber) hereby:
1. The concept of ‘school or university education’, must be interpreted as meaning that it does not cover the teaching of surfing and sailing provided by surf and sailing schools, such as those at issue in the main proceedings, for schools or for universities, in which this teaching may be covered, respectively, by the program of sports activities or the training of sports teachers and count in the grading.
2. The concept of provision of services ‘closely linked to the protection of children and young people’ does not cover the teaching of surfing and sailing provided by surfing and sailing schools, such as those at issue in the main proceedings, irrespective of whether this instruction is provided in the context of a class trip.
Note from the editors: This decision is not different from case C-449/17, in which the ECJ decided that driving lessons also do not fall under the VAT exemption for educational services. It will be interesting what the ECJ will decide in case C-373/19, in which the question is raised if swimming lessons may fall under this VAT exemption.