Roadtrip through ECJ cases: Focus on ”Termination/cancellation fees” (Art. 90)

The ECJ has decided in few cases on the determination of the Taxable Amount if contracts are terminated or in case of payment cancellation fees.

Article in EU VAT Directive 2006/112/EC – Art. 90

Article 90
1. In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.

2. In the case of total or partial non-payment, Member States may derogate from paragraph 1.

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ECJ Cases – Decided

• C-215/94 (Mohr) – An indemnity for the abandonment of milk production is not subject to VAT
• C-384/95 (Landboden-Agrardienste) – A national compensation scheme not to harvest at least 20% does not constitute a supply of services
• C-277/05 (Société thermale d’Eugénie-Les-Bains) – Reservation for an accomodation was outside scope of VAT
• C-310/11 (Grattan) – Mail-order agent’s credit does not lead to a reduction in tax base
• C‑250/14 and C‑289/14 (Air France-KLM and Hop!Brit-Air) – The issue by an airline company of tickets for domestic flights is subject to VAT where those tickets have not been used by passengers
• C-295/17 (MEO – Serviços de Comunicações e Multimédia) – Judgment – VAT on early termination of broadband deal
• C-43/19 (Vodafone Portugal) – Termination fees are subject to VAT
• C-622/23 (RHTB) – VAT Implications in Work Contract Cancellations

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ECJ Cases – Pending

• C-909/24 (InvestCapital) – Questions – VAT Treatment of Late Payment Penalties and Clauses

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