31.7.2010

Official Journal of the European Union

C 209/28

(Case C-259/10)

()

2010/C 209/39

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: The Rank Group PLC

Questions referred

1.Where there is differential VAT treatment:

(i)as between supplies that are identical from the point of view of the consumer; or

as between similar supplies that meet the same needs of the consumer; is that of itself sufficient to establish an infringement of the principle of fiscal neutrality or is it relevant to consider (and, if so, how)

(a)the regulatory and economic context;

(b)whether or not there is competition between the identical services or, as the case may be, the similar services in question; and/or

(c)whether or the different VAT treatment has caused distortion of competition?

2.Is a taxpayer whose supplies are, as a matter of national law, subject to VAT (by reason of the exercise by a Member State of its discretion under Article 13B(f) of the Sixth Directive) entitled to claim a repayment of VAT paid on those supplies on the basis of an infringement of the principle of fiscal neutrality arising out of the VAT treatment of other supplies (‘comparator supplies’) where:

(a)as a matter of national law, the comparator supplies were subject to VAT but

(b)the taxing authority of the Member State had a practice of treating comparator supplies as exempt from VAT?

3.If the answer to Question 2 is in the affirmative, what conduct amounts to a relevant practice, and in particular:

(a)is it necessary that the taxing authority has made a clear and unambiguous statement that comparator supplies would be treated as exempt from VAT;

(b)is it relevant that at the time the taxing authority made any statement it had an incomplete or incorrect understanding of facts relevant to the correct VAT treatment of the comparator supplies; and

(c)is it relevant that VAT was not accounted for by the taxpayer, or sought by the taxing authority, in respect of the comparator supplies, but that the taxing authority has subsequently sought to recover that VAT, subject to the normal domestic limitation periods?

4.If the difference in fiscal treatment results from a consistent practice of the domestic tax authorities based on a generally accepted understanding of the true meaning of domestic legislation, does it make any difference to the existence of a breach of the principle of fiscal neutrality if:

(i)the tax authorities subsequently change their practice;

(ii)a national court subsequently holds that the amended practice reflects the correct meaning of domestic legislation;

(iii)the Member State is precluded by domestic and/or European law principles, including legitimate expectation, estoppel, legal certainty and non-retroactivity, and/or by limitation periods from collecting the VAT on the supplies previously regarded as exempt?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment

OJ L 145, p. 1