C-48/97

KUWAIT PETROLEUM v COMMISSIONERS OF CUSTOMS & EXCISE

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 9 July 1998 *

1. This case concerns whether 'free gifts', devised its own 'Q8 Sails Collection' scheme supplied as part of a scheme, using 'stamps', (hereinafter 'the sails scheme'), which was ini- for the promotion of sales of fuel at petrol tially applied only at Kuwait sites but stations, come, for VAT purposes, within the soon extended to dealers who so desired. 2 consideration of the price paid at the pump Dealers who opted to apply the scheme agreed or, if not supplied for that consideration, to pay UK 0.22 pence (later, UK 0.33 pence) whether they are, in any event, covered by per litre (plus VAT) in addition to the normal Article 5(6) of the Sixth Directive. 1 wholesale petrol price. In return Kuwait sup- plied all of the required promotional litera- ture and other necessities. 3

I — The factual and legal context

A — The promotion at issue

3. The sails scheme operated from 1991 to 1996. One Q8 sails stamp was supplied for each 12 litres of fuel purchased. Credit for 2. The appellant in the main proceedings, partial stamp entitlement was facilitated in Kuwait Petroleum (GB) Ltd ('Kuwait'), sells some cases, towards the end of the promo- ' Q 8 ' brand of fuel (the 'premium goods') as a retailer at 110 sites and as a wholesale sup- tion, by the use of electronic swipe cards. To plier to independent retailers (hereinafter 'the fill a 'Collector Card' required 30 such stamps. dealers') at 500 other sites. The livery at both The number of complete cards needed to types of site is the same. O n termination in obtain a particular gift (the 'redemption 1991 of an earlier stamp promotion, Kuwait goods') was set out in a gift catalogue. A high suffered a 15% fall in its market share. It then

5. The sails scheme was discontinued due to changes in the market, particularly as a result 7. In general, under Article 2(1) of the Sixth of price competition from the hypermarket Directive, only supplies of goods and services petrol-retail sector. Although Q8 retail petrol effected for consideration are subject to VAT. prices fell by some UK 4 pence per litre, not Article 5 defines the 'supply of goods' as 'the all was necessarily directly attributable to the transfer of the right to dispose of tangible termination of the promotion. The Court movable property as owner'. However, Arti­ is informed that the cost of gifts redeemed cle 5(6) provides that certain supplies of goods, under the scheme had, by February 1995 alone, already reached U K £3 355 000, or 5 — If point of sale and other related costs, as well as the contin- g ent liability for the cost of future redemptions, were excluded, the figure would be UK 0.27 pence per litre. 4 — The order for reference refers to a rate of 79%, which is 6 — First Council Directive 67/227/EEC of 11 April 1967 on the based on the theoretical maximum number of stamps which harmonisation of legislation of Member States concerning could have been issued having regard to the total amount of turnover taxes; OJ, English Special Edition, First Series 1967 fuel sold. (I), p. 14.

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even in the absence of consideration, will be generally for purposes other than those subject to VAT: of his business.

'The application by a taxable person of goods forming part of his business assets for his pri- vate use or that of his staff, or the disposal thereof free of charge or more generally their application for purposes other than those of his business, where the value added tax on 9. Article 11 of the Sixth Directive is con- the goods in question or the component parts cerned with the taxable amount for VAT pur- thereof was wholly or partly deductible shall poses. Article 11A(1), in so far as is relevant, be treated as supplies made for consideration. states: However, applications for the giving of sam- ples or the making of gifts of small value for the purposes of the taxable person's business shall not be so treated.' ' 1 . The taxable amount shall be:

10. The abovementioned Community rules 12. Kuwait submitted that the redemption are now implemented in the United Kingdom goods were not supplied 'free of charge' by the Value Added Tax Act 1994 (hereinafter within the meaning of Article 5(6) of the Sixth the '1994 Act'). It is important to note that, Directive, whose purpose was to prevent the during the currency of the sails scheme, the consumption of goods without the payment supply of business gifts whose cost on acqui­ of VAT by taxable persons, who, if they had sition exceeded UK £10 (UK £15 with effect purchased as consumers, would have paid from 29 November 1995) was treated as a VAT. 7 Kuwait asserted that it did not con­ taxable supply, for the purposes of the national sume the goods itself but, on the contrary, rules implementing the second sentence of supplied them to motorists pursuant to a col­ Article 5(6) of the Sixth Directive. lateral contract which could be regarded as forming a single economic transaction along with the supply of fuel. Moreover, it was contended that consideration was provided for the supply of the redemption goods. 8 The supply of fuel and the supply of the redemp­ tion goods constituted two interdependent contracts. The payment made for the fuel C — The dispute and national proceedings under the first contract included payment for the later supply of the redemption goods. Where Kuwait was not the retailer of the fuel,

it was contended that the part of the payment 14. The Tribunal has decided, as a matter of for fuel to the dealer made in return for national law, that the promotion involves the obtaining rights against Kuwait was the addi- provision of the stamps pursuant to a unilat- tional UK 0.22 pence/UK 0.33 pence per litre eral offer separate from the principal transac- (plus VAT) which the participating dealers tion, namely the supply of petrol. That uni- paid Kuwait for that fuel. 9 lateral offer was transformed into a binding contract when the motorist handed in the requisite number of completed cards to obtain a gift item and complied with the other con- ditions of the scheme. However, referring, in particular, to the Boots case, it recognises that the concept of consideration for the purposes of Community VAT law differs from that applied in English contract law. The Tribunal takes the provisional view that the stamps were Obtained "free of charge"', since the motorist, in paying the pump price, did not 13. The Commissioners submitted that the make 'a part payment towards the possible two stages by which the customer obtained ultimate acquisition of a gift item'. Neverthe- the gifts had to be analysed separately. Relying less, conscious that this view might be incom- upon Boots v Commissioners of Customs & patible with the Sixth Directive, it decided to Excise, 1 0they submitted that the notion of refer the following questions to the Court: 'consideration' requires the grant of some advantage or economic benefit which cannot consist merely of increased turnover. In this case the customer had no choice but to pay the price demanded for the petrol; he could not demand a better price on condition that the right to receive stamps would be waived. Thus, if any consideration had been paid, it was of a non-monetary kind. The Commis- sioners contended that, under Article 5(6) of the Sixth Directive, the giving of gifts, even for business purposes, is subject to VAT, unless the gifts concerned are 'of small value'. Fur- thermore, the amount paid by the dealers to 'Where a supplier of goods operates a busi- Kuwait in respect of the redemption goods ness promotion scheme, under which, in was paid in order to participate in the sails outline: scheme and, ergo, not as a contribution towards the goods supplied to their customers.

(2) Are the redemption goods to be treated as "supplies made for consideration" for the purposes of Article 5(6) of that (c) where the vouchers redeemed were Directive? obtained partly on purchases of pre- mium goods from the promoter and partly on purchases of premium goods from one or more participating dealers?

(3) If the redemption goods are provided otherwise than for consideration or "free of charge", is Article 5(6) to be inter- preted as requiring that the provision of the redemption goods be treated as a supply for consideration notwithstanding that such provision is for business 5) If the answer to Question 3 is " N o " , is purposes? the United Kingdom entitled pursuant to

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Article 27 of the Sixth Council Directive their supply should be subject to VAT calcu- and under the derogation obtained by it lated on the taxable amount prescribed by in 1977 to impose an output tax charge Article 11A(1)(b), to wit the costs of pur- on the promoter which is based on the chasing the redemption goods. If consider- cost to the promoter of the redemption ation were given for the redemption goods, goods in addition to the output tax the United Kingdom maintains that it could, included in the full retail price of the pre- none the less, subject their supply to VAT on mium goods?' the basis of a derogation which it enjoys under Article 27(5) of the Sixth Directive.

II — Observations submitted to the Court III — Analysis

19. The Tribunal has found that 'the purposes of the promotion, both for [Kuwait] and the participating dealers' were 'to restore and maintain the volume of sales of Q 8 fuel in a very competitive market by being able to offer a loyalty bonus'. It is therefore clear that, for the purposes of Article 5(6) of the Sixth Direc­ tive, the supply of the redemption goods was Β — Outline of Questions 2 to 5 made for business purposes. The question that arises is whether, notwithstanding that pur­ pose, the gratuitous nature of the supply ren­ ders Article 5(6) applicable. 11

22. This last point is, however, cited a con- trario by the United Kingdom as showing the intent of the Sixth Directive to treat goods differently from services. Furthermore, with the support of France and, in this respect, of the Commission, it makes two points about 24. Firstly, the provision in the second sen- the wording of Article 5(6). Firstly, that pro- tence that 'the making of gifts of small value' vision applies to any 'disposal ... free of even for business purposes should not be charge'; i. e., that expression is clearly to be treated as supplies made for consideration read disjunctively and is not governed by the would make no sense if those gifts were to be ensuing phrase, 'more generally for purposes so treated in any event. The word 'however' other than his business ...'. Secondly, the exclu- highlights the distinction between first and sion by the second sentence of 'the making of second sentences. gifts of small value for the purposes of the taxable person's business' strongly implies that gifts not of 'small value' are not excluded.

25. Secondly, it is difficult to avoid the con- clusion that the contrasting treatment of ser- vices by Article 6(2)(b) of the Sixth Directive 23. I confess that the interpretation of Arti- is deliberate. Without wishing to speculate, I cle 5(6) of the Sixth Directive cannot be suggest that among the obvious differences entirely free from doubt. It is necessary to between goods and services is that services do have regard both to the wording and the gen- not lend themselves, at least not so readily, to

free promotion schemes. The more significant Commission's proposal for the Sixth Direc- labour content would presumably reduce tive. 13 Under the first sentence of capacity for mass supply of free services. Article 5(3)(a) of that proposal, '. . . the appli- Thus, it seems likely that the disparity in cation by a taxable person of goods forming the wording of the two provisions was part of his business assets to his own personal deliberate. 12 use or that of his staff or the disposal thereof free of charge, where the value added tax on the goods in question or the component parts thereof is wholly or partly deductible' were to be treated as supplies made for consider- ation.

It should be noted that under point 6 of Annex A to the Second Directive, Member States were permitted, as an alternative to taxing such supplies, to 'forbid' the exercise of the right of deduction or, if a deduction had already been effected, to 'adjust it'. It is, thus, clear 27. I think that the imposition of tax on 'free that the authors of the Second Directive were gift' promotions, where the sails scheme at concerned that goods obtained by taxable issue is not so structured that the 'gift' is so persons in circumstances giving rise to a right closely linked with another supply as to be to claim a deduction should not be capable of made for the same consideration as that supply, being supplied free of charge without the is consistent with the purpose of the VAT imposition of a corresponding charge to VAT. system as a tax on the final consumer.

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supplied to the taxable person as part of his of Article 5(6), be treated as potential tax- business and he will be able to deduct the avoidance devices, no such discount is at issue input VAT. If he did not pay tax on his per- in the present case. Kuwait has not sought to sonal or household consumption of them, he, structure its scheme so as to give discounts to though acting as a consumer, would not pay its customers on the supply of redemption any VAT. In the same way, where an under- goods. O n the contrary, its principal argu- taking like Kuwait supplies goods free of ment is that consideration is provided for charge, having deducted the input VAT, the those supplies as part of the price paid at the same result is achieved. It is not wrong or pump. contrary to the logic of the VAT system, in that situation, to treat Kuwait as the con- sumer of the goods.

29. Accordingly, I recommend that the third question be answered to the effect that Arti- cle 5(6) of the Sixth Directive requires that a provision, free of charge, of redemption goods under a sales promotion scheme such as that at issue in the present case be treated as a supply for consideration, notwithstanding that such a provision is for business purposes.

premium goods (fuel) from the later supply munity VAT law principle of neutrality. It of the redemption goods. Supported by the refers particularly to paragraph 28 of the judg­ Commission, it contends that, in the case of ment in Gibbs and contends that the opera­ redemption goods provided in exchange for tion of the scheme imposed no additional stamps obtained from its own sites, the con­ burden on independent participating dealers; sideration for supply of the goods constitutes they, in effect, paid Kuwait an extra U K 0.22 an unascertained part of the VAT-inclusive pence/UK 0.33 pence per litre, plus VAT, for price paid by the motorist for the stamps and supplies of fuel in return for which they the fuel. If the consumer chose not to accept received a supply of stamps. Since the dealers the stamps, he was opting not to avail of a may deduct that additional VAT-input com­ right that he had paid for. In support of this ponent from the VAT tax due on the subse­ contention, it relies, in particular, on the quent supply of the fuel and stamps to their Court's judgment in Gibbs 1 5 while asserting customers, the economic effect on the dealers that the Commissioners' reliance on Boots is is neutral. Alternatively, Kuwait submits that misconceived. Kuwait repeats its argument independent dealers acted as its agents in before the Tribunal that the sale of the fuel respect of the supply of the stamps. O n this with the stamps forms part of the same single analysis, part of the retail price constitutes economic transaction as the supply of the consideration for the supply by the partici­ redemption goods. pating dealer, acting on its own behalf, of fuel while the remainder (UK 0.22 pence or UK 0.33 pence per litre) is consideration for the supply by it, as agent of Kuwait, of the stamps.

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the question whether consideration was pro- and France, no discernible distinct consider- vided. Consideration is what is received by ation can be identified. the taxable person for the supply. In this case, it cannot be viewed as an unascertained part of the purchase price paid by motorists; the motorist merely paid for the fuel while also receiving stamps, without, as in Empire Stores, providing any additional consideration to Kuwait for those stamps. The United Kingdom, thus, does not accept that the supply of fuel and the later supply of redemp- 34. This issue has to be resolved by reference tion goods constituted a single economic to the autonomous Community-law notion transaction. It submits that the additional of consideration, as explained in 'Dutch Pota- UK 0.22 pence/UK 0.33 pence per litre was toes' and applied in the later case-law. 16 The paid to Kuwait by the dealers for fuel in Court held that there must be 'a direct link return for the right to participate in the pro- between the service provided and the consid- motion and the resulting opportunity of eration received', that 'consideration for the increasing their own turnover. It did not con- provision of a service must be capable of being stitute third-party consideration provided by expressed in money' and that 'such consider- dealers to Kuwait in respect of the supply of ation is a subjective value since the basis of redemption goods, since the payment had no assessment for the provision of services is the 'direct link' with the delivery of redemption consideration actually received and not a value goods by Kuwait. These arguments are essen- assessed according to objective criteria'. 17 In tially supported by France and Portugal. the present case, then, the question is whether there was a 'direct link' between the supply of the redemption goods and the purchase of fuel by motorists who received stamps.

larly, when the Apple and Pear Development there was a direct link between the supply of Council, a statutory body, imposed an annual goods by a wholesaler (Naturally Yours Cos­ charge upon growers, there was no direct link metics Ltd) for a price lower than their normal between the Council's activities and that price and the value of a service provided to it 18 charge. in respect of such transactions; i. e., between the supply of low-cost 'dating gifts' to private hostesses and the party-organisation service provided by beauty consultants through the hostesses for the purposes of promoting sales of the wholesaler's cosmetics. 2 1 The Court held that such a link was possible since the monetary value which the wholesaler and the 36. In Tolsma ν Inspecteur der Omzet- beauty consultants to the contract attributed belasting, which concerned whether the to the service was ascertainable, namely the receipts from passers-by by a musician who difference between the price actually paid for performed on public highways could be the dating gift by beauty consultants and its viewed as consideration for services provided normal wholesale price. Similarly, in Empire to them, the Court ruled that a supply of ser­ Stores, the issue was whether private indi­ vices is effected 'for consideration' within the viduals, who introduced themselves or third meaning of Article 2(1) of the Sixth Directive, parties as new customers to Empire Stores, a and hence is taxable, only if there is 'a legal mail order firm, under, respectively, a 'self- relationship between the provider of the ser­ introduction scheme' and an 'introduce-a- vice and the recipient pursuant to which there friend scheme', provided non-monetary con­ is reciprocal performance, the remuneration sideration for the supply of certain additional received by the provider of the service con­ goods (the 'non-catalogue goods') to them stituting the value actually given in return for without charge by Empire Stores. The Court the service supplied to the recipient'. 1 9 The held, without distinguishing between the Court, motivated largely by the voluntary schemes, that 'the supply of the article without nature of the donations made to such musi­ extra charge is made in consideration of the cians, found that there was 'no necessary link between the musical service and the payments introduction of a potential new customer'. 2 2 to which it gives rise'. 20 The Court held, in respect of both schemes, that the link between 'the supply of the article without extra charge and the introduction of a potential customer must be regarded as direct, since if the service is not provided no

38. It appears to me that the most useful point 39. The supply of redemption goods under of reference for the resolution of the present the sails scheme is not, in my view, made for case is Boots. Money-off coupons were dis- consideration as explained in the abovemen- tributed as part of promotions absolutely free, tioned cases. viz. either by means of cut-out coupons in newspapers or magazines, or by the free dis- tribution of leaflets, or as coupons printed on the packaging of 'premium goods' purchased in Boots outlets, which created an entitlement to a price reduction equal to their face value on later purchases of 'redemption goods'. Only the latter aspect of the case was in dis- pute. Boots had been assessed for VAT on the 40. I do not think that it is possible to estab- face value of the coupons. Although the case lish the necessary direct link between the was formally concerned with an alleged dis- supply of redemption goods and any identifi- count, the core issue was whether, as the able element in the price paid for fuel at the United Kingdom asserted, the reduction on pumps, even acknowledging that each motorist purchases of redemption goods was allowed is entitled to demand stamps in proportion to 'in exchange for the coupon which has a his purchases, or at least every 12-litre unit of value'; 24 in other words, did the purchaser in fuel purchased. It is apparent from cases such the second transaction by surrendering cou- as Naturally Yours Cosmetics, Empire Stores pons provide consideration equal to the face and Boots that the scheme at issue created its value of the coupon? Boots was, thus, in effect own identifiable link, both qualitatively and a price-reduction case. The Court stated that quantitatively. If the sails scheme had entitled the coupons at issue 'represent[ed] for Boots the motorist to a given reduction or even, for only an obligation to grant a reduction, which is allowed with the aim of attracting the cus- tomer'; the coupons were 'not obtained by 25 — See paragraphs 13 and 21 of the judgment. Advocate General the purchaser for consideration' and Van Gerven viewed the coupons as price-reduction certifi- cates. He saw no distinction between those given away free and those acquired on purchasing premium goods. Regarding the latter, he felt that mere was a direct link between the full price and the supply of the premium goods. In respect of the supply of the redemption goods, the acceptance of the 23 — Ibid., paragraph 16. The fact that the extra goods under the coupon 'constitutes an obligation on the part of the supplier 'introduce-a-rriend scheme' were only supplied when the [and] cannot be regarded as consideration, that is to say an new customer placed an order and complied with certain advantage for the supplier capable of being expressed in other conditions did not preclude the rinding of a direct money. It is therefore to be regarded as price discount or rebate within the meaning of Article 11A(3)(b)' (emphasis in 24 — Loc. cit., footnote 10 above, paragraph 20. original); paragraph 15 of the Opinion.

42. Secondly and more seriously, it seems to me impossible to adapt Kuwait's theory of the single economic transaction to take account of the proportion of the sales of fuel which took place through the dealers. The proposed allocation of the contribution paid by the dealers to Kuwait (UK 0.22 pence or UK 0.33 pence per litre) to the price paid by the motorist at the pumps is entirely arbi- trary. It bears no relationship either to the 41. However, there are two other decisive actual price paid by the consumer — who has considerations. Firstly, it is acknowledged that no interest in the cost of the sails scheme — a significant proportion of the stamps to which or even to the price of the redemption goods. motorists are entitled are not claimed or, if This, of course, is the result of the impossi- they are, that they are not always used to bility of fitting the intermediate transaction claim redemption goods. Kuwait's claim is between Kuwait and the dealer into the frame- that the price, ostensibly paid for fuel both at work of a supposed single economic trans- Kuwait-owned and independent sites, is actu- action between Kuwait and the consumer. In ally paid in part only for fuel, the remaining fact, it exposes the weakness of the argument. part being paid for redemption goods. Thus, Moreover, as is implied by paragraph (c) of the motorists who do not claim stamps or the fourth question, it is not even possible to goods are paying, pro tanto, for nothing. O n segregate the two types of transactions. There that view, Kuwait, or the independent retailers, was no way of distinguishing those stamps should pay VAT, calculated by reference to received at dealer-operated sites from those the amount received for the sale of the fuel, supplied directly by Kuwait. but reduced by the amount of the stamps not claimed or used. That result, though logical, is too theoretical and unreal. The Commis- sion refers, in support of Kuwait's analysis, by analogy to the purchase of a theatre ticket that is subsequently not used. To my mind, when someone purchases a theatre ticket he manifestly provides consideration for the res- ervation of a seat in respect of an artistic per- 43. In reality, it is not possible to treat as a formance service to be provided later. That he single economic transaction a series of events

consisting of two distinct transactions; sale of. Court has been asked to give rulings of prin- fuel coupled with the supply of stamps and ciple on a wide variety of schemes which, in the subsequent supply of redemption goods reality, it has had to judge on an ad hoc basis. for those stamps. This applies a fortiori when, In particular, there are elements in some recent in addition to the above events, the sale of decisions which tend to support at least some fuel to an independent dealer and the latter's aspects of Kuwait's case. Kuwait has placed participation in the sails scheme must also be considerable reliance on Gibbs. 28 It con- considered. Although it may sometimes be cerned a manufacturer's (Elida Gibbs) sales necessary to determine whether a number of promotion scheme for the distribution of two distinct transactions may, for VAT purposes, types of coupons; money-off coupons dis- be treated as constituting one single trans- tributed both generally to the public, via action, 26 I agree with the United Kingdom newspapers and the like, and via retailers, and that the approach in cases like Skatteministeriet cash-back coupons, distributed by simply printing them on the packaging of its prod- v Henriksen is not of general application. 27 ucts. Redemption of the money-off coupons In the present case, as Kuwait accepted at the occurred through the customer, on buying hearing, a number of transactions are involved. one of the products specified on the coupon, At a minimum, the sale of fuel and the supply presenting it to the retailer, who subtracted of the redemption goods were separable not the face value of the coupon from the shelf only in time but as to subject-matter. Where price of the article in question and who would the sails scheme is operated by a dealer, yet normally later be reimbursed by Elida Gibbs. another transaction occurs. Conversely, the cash-back coupons were to be sent directly to Elida Gibbs by the con- sumers and the former would then make a direct cash refund for the same value to the consumer, a procedure which did not involve either wholesalers or retailers at all and these traders were as unaware of which of their customers made these claims as Elida Gibbs was of which retailer had sold the product. Thus, the cash refund could never be accounted for as between Elida Gibbs and the rest of the distribution chain. However, Elida Gibbs claimed that it was due a refund of the VAT paid on the part of its sales that was represented by the face value of the coupons, since they represented 'a retroactive discount' 44. I cannot pretend that it is easy to extract on the consideration originally received by from the case-law a completely coherent set it. 29 The Court identified the basic principle of the VAT system as being that VAT should of rules which it is possible to apply with only affect the final consumer and, conse- total confidence to every promotion scheme quently, that the taxable amount 'cannot devised by the ingenuity of commerce. The exceed the consideration actually paid by the

45. Argos 3 3 concerned a well-known United Kingdom catalogue retailer which typically supplies goods at its various outlets for cash or in return for face-value vouchers sold pre­ viously by it, though often at a discount on their face value. 3 4 The issue in the Argos case was whether Argos was entitled to reduce its taxable amount, in respect of retail sales at its 46. The common element in these cases is the willingness of the Court to take a broad and flexible approach to the ascertainment of the 'subjective value' of the consideration actu­ 30 — Ibid., paragraph 19. ally received, namely the amount actually 31 — Paragraph 28. received by the supplier. The disposition to 32 — Paragraph 31. The Court took the view (paragraphs 32 and 33) that the functioning of the VAT system at the interme­ disregard the contractual relationship between diate stages in the chain of distribution would be unaffected; thus, intervening suppliers could, in effect, continue to use supplier and purchaser extended only to that the input and output VAT figures which applied in respect of the initial (pre-redemption of the coupons) supplies to them of Elida Gibbs goods. 33 — Case C-288/94 Argos Distributors ν Commissioners of Cus­ toms & Excise [1996] ECR I-5311 (hereinafter 'Argos'). 34 — In the present case, Argos supplied Kuwait, for part of the 35 — Argos, paragraph 18. duration of the sails scheme, with the redemption goods. 36 — Ibid., paragraph 20.

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purpose. In each case, it was the subjective receives no services or other advantages of value and not the fact of consideration that any kind from motorists filling their vehicles was at issue. Neither of these cases resorts to with Q8 fuel apart from the price paid at the the device of a 'single economic transaction' pump which, as far as its customers are con- invoked by Kuwait in the present case. In cerned, is paid only in respect of the stated Argos, in particular, the Court was at pains to price of the fuel. distinguish two transactions. 37

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subsequently supplied free of charge, or published by the supplier, the price paid by in circumstances where it is impossible to the consumer for fuel does not include con- identify with sufficient clarity a separate sideration for the supply of those goods. consideration.

49. Accordingly, I believe that the second E — Question 5 question posed by the national court should be answered to the effect that, in a case where the supplier of fuel, both at its own retail out- lets and at those operated by independent retailers, operates a promotion scheme con- 50. In the light of the three answers which I sisting of stamps which can be collected by propose in respect of the first four questions, consumers at both types of retail outlets and I do not consider it necessary to address the used in order to claim goods from catalogues fifth question.

IV — C o n c l u s i o n

5 1 . Accordingly, I r e c o m m e n d that the C o u r t answer the first three questions referred b y the VAT and Duties Tribunal, L o n d o n as follows:

(1) There is no price discount allowed to the customer for the purposes of Article 11A(3)(b) of the Sixth Directive;

(2) Article 5(6) of the Sixth Directive is to be interpreted as requiring that a provi- sion, free of charge, of redemption goods under a sales promotion scheme such as that at issue in the present case be treated as a supply for consideration, notwithstanding that such a provision is for business purposes;

(3) In a case where the supplier of fuel, both at its own retail outlets and at those operated by independent retailers, operates a promotion scheme consisting of stamps which can be collected by consumers at both types of retail outlets and used in order to claim goods from catalogues published by the supplier, the price paid by the consumer for fuel does not include consideration for the supply of those goods.

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