Case C-412/03

Hotel Scandic Gåsabäck AB

v

Riksskatteverket

(Reference for a preliminary ruling from the Regeringsrätten)

(Sixth VAT Directive – Articles 2, 5(6) and 6(2) – Provision of meals in a company canteen for a price lower than the cost price – Taxable amount)

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 23 November 2004

Judgment of the Court (First Chamber), 20 January 2005

Summary of the judgment

Tax provisions – Harmonisation of legislation – Turnover taxes – Common system of value added tax – Taxable transactions – Supplies of goods and services effected for consideration – Meaning – Transactions where the consideration is lower than the cost price of the goods or services – Included – National rule whereby such transactions are regarded as an application of goods or services for private use – Not permitted

(Council Directive 77/388, Arts 2, 5(6) and 6(2))

Articles 2, 5(6) and 6(2)(b) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, Articles 5(6) and 6(2)(b) of which treat, for the purposes of the imposition of value added tax, certain transactions for which no consideration is actually received by the taxable person as supplies of goods and provisions of services effected for consideration, must be interpreted as precluding a national rule whereby transactions in respect of which an actual consideration is paid are regarded as an application of goods or services for private use within the meaning of the latter provisions, even where that consideration is less than the cost price of the goods or services supplied.

The fact that the price paid for an economic transaction is higher or lower than the cost price is irrelevant to the question whether a transaction is to be regarded as a ‘transaction effected for consideration’ within the meaning of Article 2. The latter concept requires only that there be a direct link between the supply of goods or the provision of services and the consideration actually received by the taxable person. Accordingly, where the transaction in question is effected for consideration, there is no reason to apply Articles 5(6) and 6(2)(b), since those provisions relate only to transactions effected free of charge.

(see paras 22-24, 30, operative part)

JUDGMENT OF THE COURT (First Chamber) 20 January 2005 (1)

(Sixth VAT Directive – Articles 2, 5(6) and 6(2) – Provision of meals in a company canteen for a price lower than the cost price – Taxable amount)

In Case C-412/03, REFERENCE for a preliminary ruling under Article 234 EC from the Regeringsrätten (Sweden), made by decision of 29 September 2003, received at the Court on 3 October 2003, in the proceedings

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), J.N. Cunha Rodrigues, E. Juhász and M. Ilešič, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 23 November 2004,

gives the following

‘The application by a taxable person of goods forming part of his business assets for his private use or that of his staff, or the disposal thereof free of charge or more generally their application for purposes other than those of his business, where the value added tax on the goods in question or the component parts thereof was wholly or partly deductible, shall be treated as supplies made for consideration. However, applications for the giving of samples or the making of gifts of small value for the purposes of the taxable person’s business shall not be so treated.’

‘The taxable amount shall be:

…

…’

‘The following shall be treated as supplies of services for consideration:

…’

On those grounds, the Court (First Chamber) rules as follows:

[Signatures]