VATupdate

Flashback on ECJ Cases C-253/07 (Canterbury Hockey Club) – Services provided to legal persons/associations without legal personality are exempt

On Octover 16, 2008, the ECJ issued its decision in the case C-253/07 (Canterbury Hockey Club and Canterbury Ladies Hockey Club).

Context: Sixth VAT Directive – Exemptions – Sports-related services – Services provided to persons practicing sports – Services provided to unincorporated associations and legal persons – Inclusion – Conditions


Article in the EU VAT Directive

Article 13 A (1)(m) of the Sixth Directive (Article 132(1)(m) of the EU VAT Directive 2006/112/EC)

Article 13A of the Sixth Directive, entitled ‘Exemptions for certain activities in the public interest’, provides, in particular:

1. Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse:

(m)      certain services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in sport or physical education;

(b)      The supply of services or goods shall not be granted exemption as provided for in (1)(b), (g), (h), (i), (l), (m) and (n) above if:

–        it is not essential to the transactions exempted,

–        its basic purpose is to obtain additional income for the organisation by carrying out transactions which are in direct competition with those of commercial enterprises liable for [VAT].’


Facts

  • The Hockey Clubs are members-only sports clubs which field a number of hockey teams. Their members pay an annual subscription in consideration for their membership rights. They are unincorporated associations without legal personality.
  • The Hockey Clubs are themselves members of England Hockey, a non-profit-making organisation for the encouragement and development of the playing of hockey in England. They pay it affiliation fees on which England Hockey charges VAT.
  • In consideration for the affiliation fees which it receives, England Hockey supplies to its members certain services, including a club accreditation scheme, courses for coaches, umpires, teachers and young persons, a network of hockey development offices, facilities for accessing government and lottery funding, advice on marketing and obtaining sponsorship, club management services and insurance, and competitions for teams.
  • The Commissioners notified England Hockey that the affiliation fees it received in consideration for the services it supplied to hockey clubs affiliated to it should be subject to VAT at the standard rate. As the clubs were not persons taking part in sport, those supplies of services did not fall within the exemption.
  • The Hockey Clubs appealed against that decision to the VAT and Duties Tribunal, claiming that the services supplied by England Hockey were exempt from VAT under Article 13A(1)(m) of the Sixth Directive.
  • On that appeal, the VAT and Duties Tribunal held that the services provided by England Hockey could be treated as supplies made to the individual player members of the Hockey Clubs by virtue of the latters’ status as unincorporated associations without legal personality. The Hockey Clubs should therefore be treated as ‘transparent’ and their individual members looked at through them for the purpose of ascertaining whether England Hockey supplied services closely linked to sport to ‘persons taking part in sport’, such services being, in that event, exempt from VAT.
  • The Commissioners appealed against that decision to the High Court of Justice of England and Wales, Chancery Division, submitting that the Hockey Clubs could not be treated as ‘transparent’ for VAT purposes. The Hockey Clubs, for their part, lodged a cross-appeal, contending that the VAT and Duties Tribunal’s decision should be upheld on different grounds, namely that the requirement, in Item 3 of Group 10 in Schedule 9 to the Value Added Tax Act 1994, that the supply be made to an ‘individual’ did not properly implement the provisions of Article 13A(l)(m) of the Sixth Directive.
  • According to the referring court, the services supplied by England Hockey do not directly provide the Hockey Clubs’ members with the means of playing hockey. It noted that it was not in issue between the parties to the main proceedings that the services supplied by England Hockey are closely linked to sport.

Questions

    For the purposes of the exemption contained in Article 13 A (1)(m) of the Sixth Directive, does the term “persons” in the context of “persons taking part in sport” include corporate persons and unincorporated associations, or is it limited to individuals, in the sense of natural persons or human beings?
    If the term “persons” in the context of “persons taking part in sport” does include corporate persons and unincorporated associations, as well as individuals, does the expression “certain services closely linked to sport” permit a Member State to limit the exemption only to individuals taking part in sport?

AG Opinion

None


Decision

1.      Article 13A(1)(m) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment is to be interpreted as meaning that, in the context of persons taking part in sport, it includes services supplied to corporate persons and to unincorporated associations, provided that – which it is for the national court to establish – those services are closely linked and essential to sport, that they are supplied by non-profit-making organisations and that their true beneficiaries are persons taking part in sport.

2.      The expression ‘certain services closely linked to sport’, in Article 13A(1)(m) of Sixth Directive 77/388, does not allow the Member States to limit the exemption under that provision by reference to the recipients of the services in question.


Source


Similar ECJ cases


Referece to the case in the EU Member States (incl. UK)


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