VATupdate

ECJ C-406/20 (Phantasialand) – Judgment – Difference in VAT rates at permanent and temporary attractions not in conflict with EU law

On September 9, 2021, the ECJ issued its decision in the case C-406/20 (Phantasialand).

Context: Reference for a preliminary ruling – Taxes – Value added tax (VAT) – Directive 2006/112 / EC – Article 98 – Authorization of the Member States to apply a reduced VAT rate to certain supplies of goods and services – Annex III, point 7 – Introduction to amusement parks and parks entertainment and fairs – Principle of tax neutrality – Services provided by amusement parks and amusement parks in stationary form and by amusement parks and amusement parks in an extramural form – Comparability – Context – Average consumer point of view – Expert opinion


Article in the EU VAT Directive

Article 98 of the EU VAT Directive 2006/112/EC

Article 98 (VAT Rates – Reduced Rates)

1. Member States may apply either one or two reduced rates.
2. The reduced rates shall apply only to supplies of goods or services in the categories set out in Annex III. The reduced rates shall not apply to electronically supplied services.
3. When applying the reduced rates provided for in paragraph 1 to categories of goods, Member States may use the Combined Nomenclature to establish the precise coverage of the category concerned.


Facts

Phantasialand theme park asked the German tax authorities to be allowed to tax the admission tickets according to the reduced VAT rate of 7%, as also applied in Germany to fairground attractions, musical performances and other entertainment at annual fairs, folk festivals, shooting parties or similar events. The tax authorities refused. The German court wants to know whether there is a justification for a different VAT rate for theme parks and itinerant attractions operated permanently at the same location. As far as there is no difference, it must be determined which needs, from the point of view of the average consumer today, are met at an annual fair and / or an amusement park. It is not clear to the judge of fact what should be understood by the term “theoretical perspective” when examining the “point of view of the average consumer”.

  • The plaintiff was opened as a fairytale forest by Mr A, among others, in the last century and has developed into one of the most famous European leisure parks.
  • By paying an entrance fee, visitors acquired the right to use the amusement park’s facilities in the disputed year 2014, as in the years before and after.
  • The plaintiff submits: The reduced tax rate in accordance with Section 12  should also be applied to amusement parks. It is contrary to the principle of tax neutrality that the tax authorities and jurisdiction tax the sales of non-local showmen on the occasion of seasonal and temporary fairs in contrast to the sales of local showman companies in the form of amusement parks.
  • A violation of the principle of fiscal neutrality exists if similar and therefore competing goods and services are treated differently with regard to VAT.
  • Whether there is a violation is to be assessed from the point of view of the average consumer.
  • To support the judicial decision-making, the point of view of the average consumer in the event of a dispute should be determined by an expert report.
  • The competitive situation arises from the fact that a local showman company in the form of an amusement park satisfies the same needs of consumers as local showmen at fairs, whereby the consumers are composed of the same target group.
  • The context of a service provision is used by the ECJ when examining whether the different taxation of competitors violates the principle of neutrality if one of the competitors is operating according to special legal requirements.
  • Such legal requirements did not exist for local or non-local showmen. The legislature does not prescribe to both groups of showmen whether they only provide their services temporarily and for a limited period of time or whether they provide all year round. Local showman companies in the form of amusement parks could, like the local showmen at fairs, freely decide whether they charge entrance fees for the use of all services or only one price per service offer.
  • The list of cultural events and facilities, including fairs and amusement parks, contained in Art. 98 (2) in conjunction with Annex III, Category 7 of Council Directive 2006/112 / EC of November 28, 2006 on the value added tax system, is not conclusive and do not prove that temporary and temporary fairs have a different context than a fixed amusement park.
  • The defendant  cites the BFH ruling of August 2nd , 2018 – VR 6/16 , ECLI: DE: BFH: 2018: U.020818.VR6.16.0 , with which the BFH is reviewing an amusement park in Baden-Württemberg against a judgment of the Finance Court of Baden-Württemberg, External Senate Freiburg, dated September 23, 2015 – 14 K 4220/12 as unfounded. There the tax court had rejected a taxation of the sales from entry authorizations in the amusement park according to the reduced tax rate according to § 12 Abs. 2 Nr. 7 lit. d UStG.

Previous: FG Cologne judgment of 25.08.2020 (8 K 1092/17)


Questions

Can the listing of fairs and amusement parks in Annex III(7) to Directive 2006/112, in conjunction with Article 98(2) thereof, be relied on as the basis for drawing a distinction in the form of the taxation of a theme park at the standard rate, even though the term ‘amusement park’ covers both static and mobile fairground undertakings?

Is the case-law of the Court of Justice of the European Union, to the effect that different services may be dissimilar on account of their context, applicable to the provision of services by mobile fairground entertainers and by static fairground undertakings in the form of theme parks?

In the event that the second question is answered in the negative:

Does the ‘point of view of the average consumer’, which, in accordance with the case-law of the Court of Justice of the European Union, is an essential element of the principle of fiscal neutrality, constitute a ‘conceptual perspective’ not amenable to the gathering of evidence based on expert opinion?


AG Opinion

None


Decision 

Unofficial translation

Art. 98 in conjunction with Annex III No. 7 of the Council Directive 2006/112 / EC of November 28, 2006 on the common VAT system is to be interpreted in such a way that it does not conflict with a national regulation according to which the services of non-local showmen on the one hand and on the other hand, local showman companies in the form of amusement parks are subject to different VAT rates, namely a reduced rate and the standard tax rate, provided that the principle of tax neutrality is observed. EU law does not prohibit the referring court from obtaining an expert opinion in accordance with national law if it has particular difficulties in examining whether the principle of fiscal neutrality is being observed.


Source


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