Súdny dvor Európskej únie·3.2.1998

C-124/96

ECLI:EU:C:1998:40

Súd: Súdny dvor Európskej únie
IČS: 61996CC0124
Zdroj: eur-lex.europa.eu ↗

COMMISSION v SPAIN

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 3 February 1998 *

1. In this action, the Commission seeks a physical education supplied by non-profit- declaration that the Kingdom of Spain has making organisations to persons taking part failed to fulfil its obligations under the Sixth in sport or physical education'. 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 ('the directive'). 1 More particularly, the Commission argues that the system of exemptions granted by Spanish legislation in respect of sporting activities at Article 13(A)(2)(a) goes on to provide that: private organisations is contrary to Article 13(A)(1)(m) of the directive.

'Member States may make the granting to bodies other than those governed by public 2. Before entering into the merits of the law of each exemption provided for in (1)(b), ( Commission's arguments, it will be useful (g), (h), (i), ( l ), m) and (n)of this article sub briefly to recall the Community and national ject in each individual case to one or more of legal context. the following conditions:

— they shall not systematically aim to make a profit, but any profits nevertheless aris Article 13(A) of the directive provides that ing shall not be distributed, but shall be certain activities in the public interest arc assigned to the continuance or improve exempt from VAT. Particularly relevant for ment of the services supplied, present purposes is Article 13(A)(1)(m), which provides for an exemption in favour of 'certain services closely linked to sport or

* Original language: Italian. — they shall be managed and administered 1 — OJ 1977 L 145. p. 1 on an essentially voluntary basis by

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persons who have no direct or indirect 13. Services supplied to individuals taking interest, either themselves or through part in sport or physical education, whoever intermediaries, in the results of the activi the person or body in charge of supplying ties concerned, the service may be, provided that such ser vices are directly linked to sport or physical education and are supplied by the following persons or bodies:

— they shall charge prices approved by the public authorities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for simi (a) public law establishments; lar services by commercial enterprises subject to value added tax,

(b) sporting federations;

— exemption of the services concerned shall not be likely to create distortions of com petition such as to place at a disadvantage commercial enterprises liable to value added tax.' (c) the Spanish Olympic Committee;

The current Spanish legislation on the matter is Article 20 of Law No 37 of 28 December (d) private sports bodies or establishments 1992 on Value Added Tax ('Law No 37/92'), of a social nature whose entry fees do as amended by Article 13 of Law No 42 of not exceed the following amounts: 30 December 1994 ('Law No 42/94'). The relevant provision is Article 20(1), point 13, which is worded as follows:

— admission or entry fees: PTA 265 000

'1 . The following operations are exempt from the tax:

— periodic fees: PTA 4 000 monthly.'

2 — My translation

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Essentially therefore, as regards the supply private establishments whose membership of services linked to sport or physical educa fees do not exceed a specified amount, the tion, the Spanish legislature grants uncondi Kingdom of Spain has infringed Article tional tax exemption to supplies by public 13(A)(l)(m) of the Sixth VAT Directive law establishments, sporting federations and (77/388/EEC); the Spanish Olympic Committee. In relation to supplies by private sports bodies or estab lishments of a social nature, however, grant of the exemption is subject to the require ment that such bodies charge entry fees or periodic fees below the amounts specified.

2. order the Kingdom of Spain to pay the costs'.

3. Taking the view that that latter provision conflicted with Article 13(A)(l)(m) of the directive, the Commission initiated against the Kingdom of Spain the pre-litigation pro The Kingdom of Spain pleads that the appli cedure laid down by Article 169 of the cation should be dismissed and the Commis Treaty. The Kingdom of Spain replied by sion ordered to pay the costs. The United disputing the Commission's assessment and Kingdom has intervened in support of the arguing that its legislation did not infringe Kingdom of Spain. the directive in any way.

The Commission therefore brought the 4. The Commission maintains that the dis present action, applying for a declaration puted national legislation introduces a crite that the Kingdom of Spain had failed to fulfil rion for the grant of exemption to private its obligations. More precisely, the Commis bodies of a social nature that is not provided sion pleads that the Court should: for in the directive and is therefore contrary to it. In that respect, the Commission refers to the case-law of the Court to the effect that Article 13(A)(1) lays down a clear, precise and unconditional obligation on Member States to exempt the activities listed in that 3 provision. Viewed thus, that obligation

'1 . declare that, by providing that VAT exemption for services closely linked to 3 — Case 8/81 Becker v Finanzamt Miìnsler-lnnemtadt [1982] sport or physical education applies only to ECR 53.

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cannot, the Commission argues, be hedged provision excluding bodies charging sub about by further conditions not envisaged by scriptions higher than a given amount from the directive. Nor, it submits, can the the benefit of that exemption was intended national provision in question be justified by precisely to verify whether or not the bodies assuming that the limitation on the amount in question had a profit motive. Moreover, of subscriptions, which constitutes an the Government submits, Article 13(A)(2) obstacle to the grant of exemption, falls allows Member States to make the exemp within the scope of 'prices approved by the tion subject to compliance with certain con public authorities' within the meaning of the ditions, including the condition that the third indent of Article 13(A)(2)(a). In this body supplying the services charge 'prices case, the Spanish legislature has simply intro approved by the public authorities'. In this duced a presumption juris et de jure con case, the fixing of a ceiling on the level of cerning the non-profit-making character of subscriptions falls precisely within the con the sports bodies; those levying entry fees cept of a price approved by the public below the limit laid down by the legislation authorities and is therefore justified for the in question are presumed to be bodies pursu purposes of the abovementioned provision. ing their activity without a profit motive, The Kingdom of Spain goes on to challenge whereas the others are regarded as providing the Commission's position concerning the services for profit, and are thus excluded requirement that the exemption be granted from the benefit of the exemption. on a case-by-case basis rather than — as is the case with the disputed provision — in accordance with a general provision. Although it is true that Article 13(A)(2) pro vides that the exemption should be granted 'in each individual case', the Commission's position would lead to the need to grant the advantage in question by examining on each occasion the position of every single opera tor, which would be impossible in practice. Hence the need to lay down a general crite rion.

The Spanish Government argues, however, that application of the system of exemptions provided for in the directive necessarily requires national implementing measures, in adopting which the Member States enjoy a wide discretion. In this case, the disputed legislation arose from the lawful exercise of that discretion, which the Spanish legislature used precisely in order to attain the result required by the directive. Article 13(A)(1)(m) 5. Let me say at once that, in my opinion, provides that tax exemption should be the Commission's criticisms should be granted for sports-related services supplied upheld. The Commission has rightly con by non-profit-making organisations, and the cluded that Member States are obliged

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to grant the exemptions envisaged in (Article 13(A)(1)(m)). The services in ques Article 13(A)(1). As the Court has held on a tion must therefore benefit in any event from 4 previous occasion, these are mandatory the exemption provided for. It is precisely in exemptions and the Member States have no that respect that the Spanish legislation does discretion as regards their grant. The discre not comply with the rule in question. The tion, where applicable, concerns the defini Spanish Government has argued that the tion of the conditions for ensuring, in national legislation at issue is intended pre accordance with Article 13(A)(1), 'the cor cisely to ensure that services linked to sport rect and straightforward application of such supplied by non-profit-making organisations exemptions' and 'preventing any possible are exempted from the tax. However, it is evasion, avoidance or abuse'. In any event, plain to see that that legislation is manifestly that power must be exercised in such a incapable of achieving that result. It provides way as to ensure the result sought by the that the exemption is to be granted only to provision, namely to guarantee the tax organisations which levy entry fees or peri advantage envisaged to any taxpayer entitled odic subscriptions (particularly monthly) thereto. The exemption at issue in this case which are below a certain amount, but with concerns 'services closely linked to sport or out varying that amount by reference to the physical education supplied by non-profit- type of sporting activity, the installations making organisations to persons taking necessary for carrying on that activity, the part in sport or physical education' place where those installations are situated or, finally, the number of members of or sub scribers to the organisation in question. In other words, the criterion used by the Span ish legislature takes no account whatever of

4 — Sec the judgment in Becher, cited above, particularly para graphs 32, 33 and 34, in which the Court held that 'it should first be observed ... that the "conditions" referred to do not in any way affect the definition of the subject-matter of the exemption conferred. The "conditions" referred to arc 5 — I need scarcely point out that the Spanish Government's intended to ensure the correct and straightforward applica argument to the effect that Member States arc free to deter tion of the exemptions. A Member State may not rely, as mine the services which may benefit from an exemption against a taxpayer who is able to show that his tax position since Article 13(A)(1)(m) provides only that 'certain services' actually falls within one of the categories of exemption laid arc exempted cannot be accepted. I do not believe that the down in the directive, upon its failure to adopt the very pro Community legislature intended to confer such a wide dis visions which arc intended to facilitate the application of that cretion on Member States. The term in question ('cerMm') exemption. Moreover, the "conditions" refer to measures doubtless constitutes an unfortunate formulation of the pro intended to prevent any possible evasion, avoidance or vision, but it docs not have the scope attributed to it in the abuse. A Member State which has failed to take the precau Spanish Government's defence; it simply means that not all tions necessary for that purpose may not plead its own omis services arc to be exempted but merely those which, as the sion in order to refuse to grant to a taxpayer an exemption provision states, arc 'supplied by non-profit-making organi which he may legitimately claim under the directive, particu sations'. Moreover, since the latter constitutes the aim which larly since in the absence of specific provisions on the matter justifies the grant of the exemption, the rule in question must there is nothing to prevent the State from having recourse to in any event — in so far as it lays down the services to be any relevant provisions of its general tax legislation which exempted — be capable of pursuing that aim. As I shall arc designed to combat evasion.' explain below, that is not the case here.

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the whole of the factors which influence the should be regarded as 'prices approved by cost of the service and thus indirectly help the public authorities', causing them to fall assess whether or not the organisation sup within the conditions to which Member plying it acts with a profit motive. That is to States may make the grant of the exemption say, the national legislation in question subject for the purposes of Article ignores the fact that sporting activity consti 13(A)(2)(a). tutes a complex and diverse reality; the prac tice of some sports requires costly technical infrastructures and particularly high mainte nance burdens, whereas others require rela tively simple installations. In the former case the amortisation of sporting infrastructures may require the fixing of high entry fees which are not necessary in the latter. Thus the Spanish legislation does not lay down a certain criterion for assessing whether or not the organisation in question operates with a profit motive. In certain cases, application of In that respect, I might be able to agree that that legislation might even lead to results the limit on entry fees or periodic subscrip contrary to the provisions of Article tions should be regarded as a 'price' in the 13(A)(1); a private organisation might, for sense that it is the consideration for the ser example, charge entry fees above the limit vice supplied by the organisation providing laid down by the Spanish legislation and thus sport-related services. However, even if the be excluded from the benefit of the exemp ceilings established were to be regarded as tion even though it does not carry on its 'prices approved by the public authorities', it activity with a view to profit, whereas other would be necessary in any event for those organisations charging fees below the limit prices to vary in relation to the type of may operate with a view to profit and never sporting activity. Only in that way can the theless be allowed to benefit from the tax 'price' be regarded as indicative of the fact exemption. That is contrary to the purpose that the organisation in question supplies of Article 13(A)(1); the public interest justi services linked to sport in the context of a fying the grant of the advantage in question non-profit-making activity, as required by exists only where the services linked to sport Article 13(A)(1), for the purposes of granting are supplied by 'non-profit-making organisa exemption from the tax. tions'. The national legislature must there fore implement that provision in such a way as to ensure that the aim pursued by the directive is satisfied. For the reasons just stated, I do not consider that the Spanish leg islation lays down an appropriate criterion for ensuring that that result is achieved.

6. Nor, in my view, should one accept the In short, I consider that, whilst the exemp Spanish Government's defence that the ceil tion criterion laid down by the Spanish leg ings established by the disputed legislation islature might theoretically fall within the

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conditions set out in Article 13(A)(2)(a), that centre; it would be sufficient for the national criterion appears to be totally insufficient to legislation to adopt a more realistic criterion attain the objective pursued by the rule. and, instead of fixing a single amount what ever the type of sporting activity, to lay down a series of different prices, possibly according to the category of activity. Finally, as the Commission points out, the alleged impossibility of carrying out individual con trols in the granting of the exemption is Nor do I share the objection of the Spanish belied by the Spanish legislation itself; Government that what the Commission Article 6 of the regulation on VAT governs advocates would be impossible in practice, the 'recognition of the social nature of cer since it would involve the need to establish tain organisations or establishments' and different prices to suit the situation of each provides that 'private organisations or estab individual economic operator. In the first place, it seems to me that such an individual lishments of a social nature must apply to approach is required by the very wording of the tax office for the area in which their place Article 13(A)(2)(a), which provides precisely of business for tax purposes is situated (Del that Member States 'may make the granting egación or Administración dc la Agencia ... of each exemption ... subject in each indi- Estatal de Administración Tributaria) for 6 vidual case' to the condition that the organi recognition of that status'. That proves that sation in question charges prices approved it is perfectly possible to carry out a control by the public authorities. Moreover, I do not on a 'case by case' basis when verifying the think that the solution put forward by the conditions required in order to benefit from Commission necessarily leads to the need to the exemption, as is, moreover, required by examine the prices charged by every sports the wording of Article 13(A)(2).

7. In the light of the above considerations, I propose that the Court should allow the Commission's action and order the Kingdom of Spain to pay the costs.

6 — My translation.

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