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Comments on ECJ C-741/22 & C-73/23: AG Opinion – online gambling – private operators subject to VAT from 2016 to 2018 before treatment annulled – right to claim for overpaid VAT

The Advocate General has delivered her Opinions in two almost identical cases, with the main difference being that the taxpayers in Casino de Spa and Others (C-741/22) also raised an argument around state aid. In 2016, Belgian national law on online gambling changed, resulting in exemption remaining for lotteries and other forms of gambling, except for those provided electronically (i.e. online). The domestic Constitutional Court annulled these provisions in 2018, but taxes paid for the period from 2016-2018 were maintained, and taxpayers were not entitled to a refund of the VAT paid on online gambling for that period. The taxpayers argue that the difference in VAT treatment infringes the principle of fiscal neutrality and they should be entitled to be reimbursed for the VAT paid. The dispute concerns Article 135(1)(i) which requires Member States to exempt betting, lotteries, and other forms of gambling, subject to conditions and limitations. The Advocate General considered whether the taxpayers could rely on direct effect, citing relevant cases, and discussed the conditions for direct effect to apply.

Source KPMG

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