13.3.2010

Official Journal of the European Union

C 63/23

(Case C-502/09)

2010/C 63/37

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Fleischerei Nier GmbH & Co. KG

Defendant: Finanzamt Detmold

Questions referred

1.Is the term ‘foodstuffs for human consumption’ in Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes to be interpreted as covering only ‘take-away’ foodstuffs as typically sold in the grocery business, or does it also cover dishes and meals which have been prepared by boiling, grilling, roasting, baking or other means for immediate consumption?

2.In the event that ‘foodstuffs for human consumption’ within the meaning of Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes also covers dishes or meals for immediate consumption: Is the process of the preparation of the dishes or meals to be taken into account as a service element if it has to be decided whether the single supply of a party-service business (provision of dishes or meals ready for consumption together with the transport thereof and, perhaps, the provision of cutlery and crockery and/or tables for standing at as well as the collection of the objects provided for use) is to be classified as a supply of foodstuffs that is subject to a reduced rate of taxation (Category 1 of Annex H to that directive) or as a supply of services not subject to a reduced rate of taxation (Article 6(1) of that directive)?

3.In the event that Question 2 is answered in the negative: Is it consistent with Article 2(1), in conjunction with Articles 5(1) and 6(1), 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 for the classification of the single supply of a party-service business as either a supply of goods or a sui generis supply of services to be based purely on the number of the elements in the nature of supplies of services (two or more) compared with the proportion constituted by the supply of goods, or must the elements in the nature of a supply of services necessarily be assessed independently of their number, and, if so, according to what criteria?

(1) OJ 1977 L 145, p. 1.