Official Journal of the European Union

C 317/7

(Case C-581/08) (<span class="super">1</span>)

(Sixth VAT Directive - Second sentence of Article 5(6) - Concept of ‘samples’ - Concept of ‘gifts of small value’ - Recorded music - Distribution free of charge for promotional purposes)

2010/C 317/13

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: EMI Group Ltd

Defendant: The Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Article 5(6) of Sixth 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 (OJ 1977 L 145, p. 1) — Applications of goods for the giving of samples or the making of gifts of small value for the purposes of the taxable person’s business — Concept of ‘sample’ — Essential characteristics — Music recordings in the form of CDs provided free for promotional purposes

Operative part of the judgment

A ‘sample’, within the meaning of the second sentence of Article 5(6) of Sixth 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, is a specimen of a product which is intended to promote the sales of that product and which allows the characteristics and qualities of that product to be assessed without resulting in final consumption, other than where final consumption is inherent in such promotional transactions. That term cannot be limited, in a general way, by national legislation to specimens presented in a form which is not available for sale or to the first of a series of identical specimens given by a taxable person to the same recipient, unless that legislation allows account to be taken of the nature of the product represented and of the specific business context of each transaction in which those specimens are distributed.

The concept of ‘gifts of small value’, within the meaning of the second sentence of Article 5(6) of Sixth Directive 77/388, must be interpreted as not precluding national legislation which fixes a monetary ceiling of the order of that established by the legislation at issue in the main proceedings, namely GBP 50, for gifts made to the same person in the course of a 12-month period or forming part of a series or succession of gifts.

The second sentence of Article 5(6) of Sixth Directive 77/388 precludes national legislation which establishes a presumption that goods constituting ‘gifts of small value’ within the meaning that provision, distributed by a taxable person to different individuals having the same employer, are to be treated as having been made to the same person.

The tax status of the recipient of samples has no bearing on the answers given to the other questions.

(<span class="super">1</span>) OJ C 55, 7.3.2009.