30.1.2010

EN

Official Journal of the European Union

C 24/27

(Case C-441/09)

2010/C 24/50

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and B.-R. Killmann, Agents)

Defendant: Republic of Austria

Form of order sought

—declare that, by applying a reduced rate of value added tax (VAT) to the supply, importation and intra-Community acquisitions of certain live animals, in particular horses, not intended for use in the preparation of foodstuffs for human or animal consumption, the Republic of Austria has failed to fulfil its obligations under Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system (1);

—order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that Austrian law on VAT infringes Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system, by also applying a reduced rate of VAT to the supply of certain live animals (in particular horses), where those animals are not intended for the production of foodstuffs.

The expression ‘live animals’ in point 1 of Annex III to the Directive on the VAT system is not a separate category but encompasses only those animals which are normally used as foodstuffs for human or animal consumption. That interpretation is supported by the Spanish, French, English, Italian, Dutch, Portuguese and Swedish versions of that provision. In addition the fact that that provision is an exception requires according to settled case-law that it be interpreted strictly.

Particularly animals of the family of equids are clearly used principally as pack or riding animals (and not as foodstuffs for human or animal consumption).

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(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).