Just a few days ago, the Court of Justice of the EU (CJEU) issued a judgment (Case C-146/22, YD) on the power of Member States to apply reduced VAT rates to certain supplies of goods and services.
The case in question concerns the application of different VAT rates to the supply of apparently the same type of goods. Specifically, it was the delivery of a drink produced on the basis of milk. The drink was delivered hot and ready for immediate consumption at the request of customers. According to the applicant, the VAT rate to be applied to that supply was the reduced rate laid down by the VAT rules for supplies of milk-based beverages (5%). However, the local tax authority found that the sale of the beverage prepared for the customers for its consumption had to be regarded as supply of goods accompanied by services (the preparation of the beverage and serving thereof to customers for immediate consumption), and, therefore, cannot benefit from that reduced VAT rate. The correct VAT rate, according to the Tax Authorities, was 8% which is the applicable VAT rate for “Food and beverage serving services”.
The question referred by the CJEU therefore seeks to clarify the described controversy.
The Court observes that the distinction made for the application of different VAT rates based on whether or not the supply of foodstuffs is accompanied by ancillary services is not contrary to EU law and may therefore be regarded as valid in so far as it complies with the principle of neutrality. Indeed, the fact that these ancillary services exist may lead to the transaction being classified as a supply of services and not as a supply of goods. This, in principle, would justify the application of different VAT rates. The EU law attaches decisive importance to the supply of services accompanying the supply of the foodstuff, such services must be to be sufficient for the immediate consumption of that food.
Going back to the principle of neutrality, it should be recalled that said principle precludes similar supplies of goods or services which are in competition with each other from being treated differently for VAT purposes, this includes the application of different VAT rates. In other words, similar goods or products cannot be treated differently in VAT.
In this regard, goods or services are similar where they have similar characteristics and meet the same needs from the point of view of consumers. In case of differences between them, these differences cannot have a significant influence on the decision of the average consumer to use one or other of those goods or services.
In the light of the foregoing, the Court considers that the beverages marketed by the applicant are being prepared specifically at the request of customers and served hot, for immediate consumption, whereas that is not necessarily the case for dairy beverages marketed in a general manner (not adapted to the customer’s request) in shops or supermarkets. The Court considers, therefore, that we are dealing with two different situations with different purposes. This difference seems to be decisive when it comes to the consumer opting for one product or another. All this leads the Court to consider that it is not contrary to EU law to establish a difference of rates in the delivery of the product in a general way and the delivery of the same product but prepared in accordance with the customer’s request for consumption. This is because, for VAT purposes, in the first of the situations we are dealing with a mere supply of goods while in the second we are dealing with a supply of services. Both are different things in the field of VAT and therefore their different treatment would seem to be justified.
What is described in case C-146/22 is something that happens very commonly nowadays since we have many different options to consume products . In this sense, an average consumer who wants to consume a certain foodstuff may go to a supermarket to purchase it, he can go to an establishment at street level to have it prepared for immediate consumption or he can even ask for it to be delivered to his home. In all three situations, the food product is the same, however, the way of acquiring it is different. In the CJEU´s view, this difference is significant enough for these situations to be treated differently in VAT.
In accordance with all the above, we see how it is possible that the delivery of the same product may be subject to different VAT rates, this is so because although we may be dealing with the delivery of the same type of product, we may not be dealing with the same type of transaction in the field of VAT.