On October 21, 2022, the ECJ issued its decision in the case C-373/19 (Dubrovin & Tröger – Aquatics). The case deals with the question if swimming lessons could fall under the VAT exemption for educational services.
Context: Submission for a preliminary ruling – VAT – Directive 2006/112 / EC – Art. 132 Paragraph 1 Letters i and j – Tax exemptions for certain activities serving the common good – Education of children and young people, school and university teaching – School and university teaching – Elementary swimming courses
Article in EU VAT Directive
Article 132(1)(i) and (j) of Council Directive 2006/112/EC
Article 132 (Exemptions for Certain Activities in the Public Interest)
1. Member States shall exempt the following transactions:
(i) the provision of children’s or young people’s education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects;
(j) tuition given privately by teachers and covering school or university education;
The following questions are submitted to the Court of Justice of the European Union for a preliminary ruling:
1. Does the concept of school and university tuition within the meaning of Article 132 (1) (i) and (j) of the VAT Directive also include the issue of swimming lessons?
2. Can the recognition of an institution within the meaning of Article 132 (1) (i) of the VAT Directive be regarded as a body similar to that of public-law bodies involved in the education of children and adolescents, school and university tuition, education and training as well as vocational retraining result from the fact that the instruction given by this institution is the acquisition of a basic elementary ability (here: swimming)?
3. If the second question is answered in the negative: does the tax exemption under Article 132 (1) (j) of the VAT Directive presuppose that the taxable person is a sole trader?
Note from editors: These questions seem a bit similar to the questions in case C-449/17 (A&G Fahrschul-Akademie GmbH), where it was asked if driving lessons were educational services. The ECJ decided in that case that driving lessons were not educational services.
The term “school and university teaching” within the meaning of Art. 132 Paragraph 1 Letters i and j of Council Directive 2006/112 / EC of November 28, 2006 on the common VAT system is to be interpreted as meaning that it does not include the Includes swimming lessons given by the swimming school.
The German swimming school Dubrovin & Tröger gives swimming lessons at different levels, mainly to children, to teach the basic skills and techniques of swimming. It considers that these services should be exempt from VAT. Since the German tax authorities were of the opinion that those services were not covered by the VAT exemption, VAT assessments were issued. Dubrovin & Tröger lodged an objection without success and subsequently lodged an appeal.
The referring court takes the view, first, that the services provided by Dubrovin & Tröger constitute education, since there is an undeniable public interest in the learning of a basic basic skill such as swimming, which everyone should possess, in particular to can provide for emergencies in the water. The referring court adds that the present case differs from the judgment in A & G Fahrschul-Akademie , in which the ECJ held that the concept of ‘school or university education’ does not cover driving instruction provided by a driving school. After all, apart from the fact that driving instruction constitutes specialized education – while the different swimming lessons are intertwined – it is not in the public interest.
According to the ECJ, the term ‘school or university education’ within the meaning of Article 132(1)(i) and (j) of the VAT Directive does not relate to swimming education provided by a swimming school.
Another similar case is C-47/19 (HA), where the ECJ is being asked if surfing and sailing lessons can be regarded educational services.