C-462/16 Boehringer Ingelheim Pharma

JUDGMENT OF THE COURT (Fifth Chamber)

20 December 2017 ( *1 )

(Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Article 90(1) — Reduction of the price under conditions determined by the Member States — Reduction of the taxable amount — Principles laid down in the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400) — Discounts granted to private medical insurance funds)

In Case C‑462/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 22 June 2016, received at the Court on 17 August 2016, in the proceedings

Finanzamt Bingen-Alzey

v

Boehringer Ingelheim Pharma GmbH & Co. KG,

THE COURT (Fifth Chamber),

composed of J.L. da Cruz Vilaça, President of the Chamber, E. Levits, A. Borg Barthet (Rapporteur), M. Berger and F. Biltgen, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of

Boehringer Ingelheim Pharma GmbH & Co. KG, by A. Funke, Steuerberater, and H.-H. von Cölln, Rechtsanwalt,

the German Government, by T. Henze and R. Kanitz, acting as Agents,

the United Kingdom Government, by D. Robertson, acting as Agent, assisted by P. Mantle, Barrister,

the European Commission, by B.-R. Killmann and R. Lyal, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 July 2017,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1; ‘the VAT Directive’).

2The request has been made in the context of proceedings between the Finanzamt Bingen-Alzey, (the tax authority of Bingen-Alzey, Germany) (‘the tax authority’) and the pharmaceutical company Boehringer Ingelheim Pharma GmbH & Co. KG concerning the determination of the amount of value added tax (‘VAT’) payable by the latter for the 2011 tax year.

Legal context

European Union law

3Article 73 of the VAT Directive provides:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of the supply.’

4Article 78 of the VAT Directive provides:

‘The taxable amount shall include the following factors:

taxes, duties, levies and charges, excluding the VAT itself;

…’

5Article 79 of the directive provides:

‘The taxable amount shall not include the following factors:

price reductions by way of discount for early payment;

price discounts and rebates granted to the customer and obtained by him at the time of the supply;

amounts received by a taxable person from the customer, as repayment of expenditure incurred in the name and on behalf of the customer, and entered in his books in a suspense account.

The taxable person must furnish proof of the actual amount of the expenditure referred to in point (c) of the first paragraph and may not deduct any VAT which may have been charged.’

6Article 90 of the directive provides:

‘1. In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.

2. In the case of total or partial non-payment, Member States may derogate from paragraph 1.’

German law

7Paragraph 10(1) of the Umsatzsteuergesetz (Law on turnover tax), in the version published on 21 February 2005 (BGBl. 2005 I, p. 386) provides:

‘For supplies and other services (first sentence of Paragraph 1(1), point 1) and for intra-Community acquisitions (Paragraph 1(1), point 5), turnover shall be calculated in accordance with the remuneration received. Remuneration is everything which the recipient of the supplies expends in order to acquire the supply, but after deduction of turnover tax. Anything that a person other than the beneficiary of the supply pays to the trader for the supply is also included in remuneration. …’

8Paragraph 17(1) of the German Law on turnover tax, entitled ‘Adjustment of the basis for assessment’ provides:

‘When the basis of assessment of a taxable transaction for the purposes of Paragraph 1(1), point 1, has changed, the trader who made the supply shall adjust correspondingly the amount of tax payable. …’

9As regards statutory health insurance cover by the public health insurance funds, Paragraph 2 of the Fünftes Buch Sozialgesetzbuch (Fifth book of the social code) in the version of 22 December 2010 (BGBl. 2010 I, p. 2309) (‘the SGB V’) provides:

‘1. The health insurance funds make available the services covered in Chapter III to the persons whom they insure in compliance with the principle of good administration (Paragraph 12), to the extent that those insured persons are not themselves liable for those supplies The particular treatment methods, medicines and medicinal remedies are not excluded. The quality and efficacy of the services must meet generally accepted standards of medical knowledge and take into account medical advances.

2. The insured persons shall receive supplies in the form of supplies in kind or in service, without prejudice to the derogations laid down in this Book V or Book IX. Upon request, the services may also be provided in the form of a participation in a “Multi-branch personal budget” according to the combined provisions of Paragraph 17(2) to (4) of Book IX, the regulation on the budget and Paragraph 159 of Book IX. The provision of supplies in kind and in services is the object of contracts that the health insurance funds conclude with service providers under the provisions of Chapter IV.’

10Paragraph 130a(1) of the SGB V provides:

‘For medicinal products provided at their cost with effect from 1 January 2003, the health insurance funds receive from pharmacies a discount of 6% on the pharmaceutical company’s sale price, exclusive of VAT. Pharmaceutical companies are required to reimburse the pharmacies for the discount. Where wholesalers are covered under paragraph 5, the pharmaceutical companies are required to reimburse the discount to wholesalers. The discount must be reimbursed to pharmacies and wholesalers within 10 days of the day on which the request has been made. …’

11As regards persons covered by private health insurance, Paragraph 192 of the Versicherungsvertragsgesetz (Law on insurance contracts) in the version of 23 November 2007 (BGBl. 2007 I, p. 2631), entitled ‘Contractual supplies by the insurer’, provides:

‘(1) In the insurance of healthcare costs, the insurer is required, within the agreed limits, to reimburse the expenses of necessary medical treatment for an illness or resulting from an accident and of all other supplies agreed, including those of pregnancy and childbirth and medical appointments for screening for diseases under programmes put in place by the law.

…’

12As regards those persons with the right to reimbursement of their medical expenses under the law on public servants, Paragraph 80 of the Bundesbeamtengesetz (German Law on federal public servants) in the version of 14 November 2011 (BGB1. 2011 I, p. 2219), entitled ‘Treatments in the event of illness, care and childbirth’, provides:

‘(1) The following benefit from reimbursement:

1Public servants who have the right to remuneration or who are on parental leave,

…

(2) Only those expenses incurred that are necessary and economically reasonable are capable of reimbursement

1in cases of illness and care

…

the reimbursements are awarded in the form of a reimbursement of at least 50% of the expenses capable of being reimbursed.

…’

13Paragraph 1 of the Gesetz über Rabatte für Arzneimittel (Law on the discounts granted for medicines), in the version of 22 December 2010 (BGBl. 2010 I, p. 2262), provides:

‘Pharmaceutical companies shall grant private medical insurance companies and [bodies paying those costs under the law on public servants] in respect of prescription only medicinal products, the cost of which they have reimbursed the insured in part or in full, discounts according to the sharing of the costs in the proportions provided for in Paragraph 130a(1), (1a), (2), (3), (3a) and (3b) of the SGB V. …’

The dispute in the main proceedings and the question referred for a preliminary ruling

14Boehringer is a pharmaceutical company which manufactures medicinal products and supplies those products, subject to tax, to pharmacies via wholesalers.

15As regards the system of statutory (public) health insurance, pharmacies deliver medicinal products to persons covered in the context of a framework contract with the national association of health insurance funds. The medicinal products are supplied to the health insurance funds and the latter make them available to persons insured by them. The pharmacies grant the health insurance funds a discount on the price of the medicinal products. Boehringer Ingelheim Pharma, as a pharmaceutical company, must reimburse the pharmacies or — where wholesalers are involved — the wholesalers for this discount. For the purpose of VAT, the discount is treated by the tax authority as a reduction in remuneration.

16As regards, on the other hand, medicinal products intended for persons with private health insurance, the pharmacies issue those products to those persons pursuant to individual contracts with them. The private health insurance company does not purchase medicinal products, but merely reimburses the persons insured by it, upon request by them, for the costs they have incurred. In such a case, Boehringer Ingelheim Pharma must grant the private health insurance company a discount on the price of the medicinal product. The tax authority does not treat this discount as a reduction in remuneration for the purposes of VAT.

17In 2012, Boehringer Ingelheim Pharma submitted an annual VAT declaration for the 2011 financial year, mentioning, in particular, the taxable transactions and the applicable taxable amounts.

18In that declaration, in respect of the transactions relating to medicinal products purchased by insured persons covered by private health insurance, Boehringer Ingelheim Pharma corrected the taxable amount by deducting the reimbursements required to be paid by it.

19The tax authority considered that there was no reason justifying the reduction of Boehringer Ingelheim Pharma’s taxable amount as regards reimbursements of private health insurance companies. It therefore fixed the VAT that was due from it on the basis of the taxable amount without the reduction.

20Boehringer Ingelheim Pharma lodged, before the Finanzgericht Rheinland-Pfalz (Finance Court, Rhineland-Palatinate, Germany), an appeal against the decision of the tax authority concerning the reimbursements to private health insurance companies.

21It submitted that the statutory health insurance fund and the private health insurance company were at the end of the supply chain, so that the taxable amount must be reduced in both cases. It is not significant, according to it, whether it is reimbursements or reductions in price that have been granted, both must be treated in the same way from the viewpoint of VAT.

22The Finanzgericht Rheinland-Pfalz (Finance Court, Rhineland-Palatinate), upheld Boehringer Ingelheim Pharma’s appeal, ruling that it was not necessary to make the distinction made by the tax authority between the reductions in price granted to statutory health insurance funds for the medicinal products purchased and the reimbursements made at the time of purchase of those products in the context of a private health insurance regime.

23The tax authority lodged, before the Bundesfinanzhof (Federal Finance Court, Germany) an appeal on a point of law against the judgment of the Finanzgericht Rheinland-Pfalz (Finance Court, Rhineland-Palatinate).

24The referring court recalls that when a manufacturer of a product who, having no contractual relationship with the final consumer but being the first link in a chain of transactions which ends with that final consumer, grants the final consumer a price reduction, the taxable amount for VAT purposes must, in accordance with the case-law of the Court, be reduced by that reduction (see to that effect, the judgments of the Court of Justice of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraphs 28 and 31, and of 16 January 2014, Ibero Tours, C‑300/12, EU:C:2014:8, paragraph 29).

25It observes that the Court of Justice has, however, ruled that there should be no reduction when a travel agent, acting as an intermediary, grants to the final consumer, on the travel agent’s own initiative and at his own expense, a price reduction on the principal service provided by the tour operator (judgment of 16 January 2014, Ibero Tours, C‑300/12, EU:C:2014:8, paragraph 33). The ground relied on by the Court in that judgment is that the travel agent is not part of a supply chain leading from the tour operator to the final consumer.

26According to the referring court, the Court’s case-law must be understood as meaning that price reductions that an operator grants to a third party which is not contractually linked to it can reduce the taxable amount for VAT due on the supply made by that operator only where a chain of transactions leads from the company to the third party entitled to a discount. In the present case, the discounts in favour of private health insurance companies do not therefore reduce the taxable amount for VAT due in respect of the supplies made by Boehringer Ingelheim Pharma, since private health insurance companies who benefit from the discount are not part of the supply chain leading from that company to the final consumer.

27However, the referring court considers that it is incompatible with the general principle of equal treatment enshrined in Article 20 of the Charter of Fundamental Rights of the European Union for discounts for private health insurance companies not to reduce the taxable amount, unlike discounts in connection with statutory health insurance, even though the pharmaceutical company is encumbered in the same way by both discounts. Since comparable situations are involved, the referring court wonders what the objective justification is for that unequal treatment.

28It also recalls that, although infringement of the principle of fiscal neutrality may be envisaged only as between competing traders, infringement of the general principle of equal treatment may be established, in matters relating to tax, by other kinds of discrimination which affect traders who are not necessarily in competition with each other but who are nevertheless in a similar situation in other respects (judgments of 10 April 2008, Marks & Spencer, C‑309/06, EU:C:2008:211, paragraph 49, and of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 17). It follows that the principle of equal treatment, in matters relating to tax, does not coincide with the principle of fiscal neutrality (judgment of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 18).

29In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘On the basis of the case-law of the Court of Justice of the European Union (judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraphs 28 and 31) and having regard to the principle of equal treatment under EU law, is a pharmaceutical company which supplies medicinal products entitled to a reduction of the taxable amount under Article 90 of the VAT Directive in the case where:

it supplies those medicinal products to pharmacies via wholesalers,

the pharmacies supply those products, subject to tax, to persons with private health insurance,

the insurer of the medical expense insurance (the private health insurance company) reimburses the persons insured by it for the costs of purchasing the medicinal products, and

the pharmaceutical company is required to pay a “discount” to the private health insurance company pursuant to a statutory provision?’

Consideration of the question referred

30By its question, the referring court asks, in essence, whether, in the light of the principles defined by the Court in the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400, paragraphs 28 and 31), regarding the determination of the taxable amount for VAT and having regard to the principle of equal treatment under EU law, Article 90(1) of the VAT Directive must be interpreted as meaning that the discount granted, in accordance with national law, by a pharmaceutical company to a private health insurance company results, for the purposes of that article, in a reduction of the taxable amount in favour of that pharmaceutical company, when it supplies medicinal products via wholesalers to pharmacies which make supplies to persons covered by private health insurance that reimburses the purchase price of the medicinal products to persons it insures.

31In order to reply to that question, it must be pointed out first of all that Article 73 of the VAT Directive states that the taxable amount, in respect of supplies of goods and services, is everything which constitutes the value of the consideration which has been or is to be obtained by the supplier from the purchaser, the customer or a third party for such supplies including subsidies directly linked to the price of such supplies.

32Next, it must also be recalled that Article 90(1) of the VAT Directive, which relates to cases of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, requires the Member States to reduce the taxable amount and, consequently, the amount of VAT payable by the taxable person whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. That provision embodies one of the fundamental principles of the VAT Directive, according to which the taxable amount is the consideration actually received and the corollary of which is that the tax authorities may not collect an amount of VAT exceeding the tax which the taxable person received (judgment of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 22 and the case-law cited).

33Finally, the Court has held that one of the principles on which the VAT system was based was neutrality, in the sense that within each country similar goods should bear the same tax burden whatever the length of the production and distribution chain (judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 20).

34In the present case, the order for reference states that the pharmaceutical company is required, under national legislation, to grant to private health insurance companies, in respect of prescription only medicinal products the cost of which the latter have reimbursed the insured persons in part or in full, discounts according to the sharing of the costs in the same proportions as provided for statutory health insurance companies. The tax authority does not regard this discount as a reduction of the taxable amount.

35Thus, as a result of that legislation, Boehringer Ingelheim Pharma could dispose of a sum corresponding to the price of the sale of those products to pharmacies, reduced by that discount. It would not therefore be in conformity with the VAT Directive for the taxable amount used to calculate the VAT chargeable to the pharmaceutical company, as a taxable person, to exceed the sum finally received by him. If that were the case, the principle of neutrality of VAT vis-à-vis taxable persons, of whom the pharmaceutical company is one, would not be complied with (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 28).

36Consequently, the taxable amount applicable to Boehringer Ingelheim Pharma as a taxable person must be made up of the amount corresponding to the price at which it sold the medicinal products to pharmacies, reduced by the discount made to private health insurance companies when they reimbursed the expenses incurred by their insured persons when purchasing those products.

37It is true that the Court held, in paragraph 31 of the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400), that Article 11C(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) (‘the Sixth Directive’), which corresponds to Article 90 of the VAT Directive, refers to the normal case of contractual relations entered into directly between two contracting parties, which are modified subsequently.

38However, in that regard, it must be held, first, that, also in paragraph 31 of that judgment, the Court stated that that provision is an expression of the principle of neutrality and, consequently, its application must not undermine the achievement of that principle (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 31).

39In the second place, it is clear from the case-law of the Court that Article 90(1) of the VAT Directive does not presuppose such a subsequent modification of the contractual relations in order for it to be applicable. In principle, it requires the Member States to reduce the taxable amount whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. Moreover, there is no indication that in its judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400), the Court wished to restrict the scope of application of Article 11C(1) of the Sixth Directive which corresponds to Article 90 of the VAT Directive. On the contrary, it is apparent from the facts of the Elida Gibbs case that there had been no modification of the contractual relations. Nevertheless, the Court held that Article 11C(1) of the Sixth Directive was applicable (see, to that effect, the judgment of 29 May 2001, Freemans, C‑86/99, EU:C:2001:291, paragraph 33).

40Furthermore, the fact that, in the case in the main proceedings, the direct beneficiary of the supplies of the medicinal products in question was not the private health insurance company which reimbursed the insured persons but the insured persons themselves, is not such as to break the direct link between the supply of services made and the consideration received (see, by analogy, the judgment of 27 March 2014, Le Rayon d’Or, C‑151/13, EU:C:2014:185, paragraph 35).

41As the Advocate General observed in points 44 and 45 of his opinion, the payments made at the point of purchase of the medicinal products must be regarded as consideration provided by a third party within the meaning of Article 73 of the VAT Directive when those third parties, namely insured persons, requested reimbursement by the private health insurance companies and the latter obtained, in accordance with the national law, the discount owed to them by the pharmaceutical company. Therefore, having regard to the facts at issue in the main proceedings, the private health insurance companies must be regarded as being the final consumer of a supply made by a pharmaceutical company, which is a taxable person for the purposes of VAT, such that the amount payable to the tax authority may not exceed that paid by the final consumer (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 24).

42Consequently, in must be held that, in the case in the main proceedings, since part of the consideration is not received by the taxable person because of the discount granted by the latter to private health insurance companies, there has in fact been a reduction in price after the time at which the supply took place, in accordance with Article 90(1) of the VAT Directive.

43Moreover, as regards the discount at issue in the main proceedings, it must be held that that discount is fixed by the law and that the pharmaceutical company is obliged to grant it to private health insurance companies which have reimbursed the persons they insure for the expenses incurred by those persons when purchasing medicinal products. As has been stated in paragraph 35 above, in those circumstances, the pharmaceutical company was not able freely to dispose of the full amount of the price received on the sale of its products to pharmacies or to wholesalers (see, to that effect, the judgment of 19 July 2012, International Bingo Technology, C‑377/11, EU:C:2012:503, paragraph 31).

44In that regard, the Court held, in paragraph 28 of the judgment of 19 July 2012, International Bingo Technology (C‑377/11, EU:C:2012:503), concerning a legal requirement for the payment of winnings in a bingo game, that since the part of the sale price of the cards which is distributed as winnings to players is fixed in advance and is mandatory, it cannot be regarded as forming part of the consideration received by the organiser of the game for the supply of the service provided to players.

45As the Advocate General observed in point 42 of his opinion, even though, in that judgment, the Court’s analysis concerned the interpretation of Article 73 of the VAT Directive, the interpretation that the judgment provided of the notion of ‘consideration’ laid down in that provision may apply in respect of the words ‘where the price is reduced’ used in Article 90 of the directive, given that both that provision and Article 73 of the directive address the components of the taxable amount.

46Having regard to the foregoing considerations, the answer to the question referred is that, in the light of the principles defined by the Court in the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400, paragraphs 28 and 31), regarding the determination of the taxable amount for VAT and having regard to the principle of equal treatment under EU law, Article 90(1) of the VAT Directive must be interpreted as meaning that the discount granted, under national law, by a pharmaceutical company to a private health insurance company results, for the purposes of that article, in a reduction of the taxable amount in favour of that pharmaceutical company, where it supplies medicinal products via wholesalers to pharmacies which make supplies to persons covered by private health insurance that reimburses the purchase price of the medicinal products to persons it insures.

Costs

47Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fifth Chamber) hereby rules:

In the light of the principles defined by the Court in the judgment of 24 October 1996, Elida Gibbs (C‑317/94, EU:C:1996:400, paragraphs 28 and 31), regarding the determination of the taxable amount for value added tax and having regard to the principle of equal treatment under EU law, Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the discount granted, under national law, by a pharmaceutical company to a private health insurance company results, for the purposes of that article, in a reduction of the taxable amount in favour of that pharmaceutical company, where it supplies medicinal products via wholesalers to pharmacies which make supplies to persons covered by private health insurance that reimburses the purchase price of the medicinal products to persons it insures.

Signatures

[Signatures]

( *1 ) Language of the case: German.

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 11 July 2017 ¹

(Value added tax — Supply of medicinal products by manufacturer to retailers via wholesalers — Articles 73 and 90 of Council Directive 2006/112/EC on the common system of value added tax — Taxable amount — Statutory obligation on manufacturer to provide a discount indexed to sale price — Member State tax authority treating discount as a reduction in price with respect to supplies made involving statutory (public) health insurance funds but not private health insurance funds — Principles elaborated in Case C-317/94, Elida Gibbs — Principle of equal treatment)

I. Introduction

1Boehringer Ingelheim Pharma GmbH & Co. KG (‘Boehringer’) is a manufacturer of pharmaceutical products at the head of a supply chain that is obliged, pursuant to a statutory provision of German law, to provide a price rebate after supply takes place which is indexed to the price of its products. The main proceedings entail determining if it is compatible with EU law for the Finanzamt Bingen-Alzey (Tax Office, Bingen-Alzey: ‘the Member State taxation authority’) to allow Boehringer to take into account this price rebate in calculating the taxable amount for VAT purposes with respect to supplies of pharmaceutical products made in the context of public health insurance but not private health insurance?

2This is the question addressed in the order for reference from the Bundesfinanzhof (Federal Finance Court, Germany), and which requires interpretation of Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. ² The Bundesfinanzhof (Federal Finance Court) takes the view that the ruling of the Court in Elida Gibbs ³ is of central importance to resolving the dispute. In Elida Gibbs it was established that price reductions given by a company at the head of a supply chain to the ultimate consumer of its products in the same supply chain, through recourse to a system entailing presentation by the latter of vouchers in lieu of part of the price, reduced the taxable amount in relation to VAT on the supply made by that company, even though there was no contractual link between it and the ultimate consumer.

3According to the national referring court, public health insurance funds are ultimate consumers in the chain of supply of Boehringer’s pharmaceutical products, and private health insurance funds are not. Does this difference justify the refusal of the Member State tax authority to reduce the taxable amount with respect to the latter type of supply?

4I have reached the conclusion that it does not.

II. Legal framework

A. EU law

5Article 73 of Directive 2006/112 states:

‘In respect of the supply of goods or services, other than as referred to in Articles 74 to 77, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party, including subsidies directly linked to the price of supply.’

6Article 90(1) of Directive 2006/112 states:

‘In the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the Member States.’

B. National law

1. Law on turnover tax

7Pursuant to the second sentence of Paragraph 10(1) of the Umsatzsteuergesetz (Law on turnover tax; ‘UStG’) remuneration is to comprise the recipient’s total outlay (net of turnover tax) for the purpose of obtaining the supply in question.

8Under the first sentence of Paragraph 17(1) of the UStG, when the basis for assessment of a taxable transaction changes, the trader who made the supply is to adjust correspondingly the amount of tax payable.

2. Law on health insurance

9Under the first sentence of Paragraph 2(1) of the Fünftes Buch Sozialgesetzbuch (Fifth Book of the Social Code; ‘SGB V’), the (public) health insurance funds are to make the services provided for in law available to the persons whom they insure. Under the first sentence of Paragraph 2(2) of the SGB V, insured persons are in principle to receive the services as services in kind. Under the third sentence of Paragraph 2(2) of the SGB V, the (public) health insurance funds are to conclude contracts on the provision of services in kind with service providers, such as pharmacies. Under Paragraph 129 of the SGB V, a framework contract on the supply of medicinal products is to exist between the national association of public health insurance funds and the national association of pharmacies.

10Under sentences 1 to 4 of Paragraph 130a(1) of the SGB V, the public health insurance funds are to obtain from pharmacies, in respect of the medicinal products issued and chargeable by those funds, a discount in principle of 7% of the pharmaceutical company’s sale price, exclusive of VAT. Pharmaceutical companies like Boehringer are required to reimburse the pharmacies for the discount.

11Other provisions of Paragraph 130a of the SGB V govern the period allowed for payment and the amount of the discount in particular circumstances.

12In contrast, privately insured persons pay for Boehringer’s pharmaceutical products themselves at pharmacies, and then request reimbursement of their costs from the private health fund with whom they are insured.

13However, with respect to prescription only medicinal products, under Paragraph 1 of the Gesetz über Rabatte für Arzneimittel (Law on rebates for medicinal products; ‘the AMRabG’) of 22 December 2010, pharmaceutical companies like Boehringer are to grant private health insurance funds a rebate when the funds reimburse privately insured persons for prescription drugs, either in part or in full. The rebate afforded to private health insurance funds by companies like Boehringer is described in the order for reference as occurring at the rate of the refund, according to Paragraph 130a(1), (la), (2), (3), (3a) and (3b) of the SGB V.

14Under the case-law of the Bundesfinanzhof (Federal Finance Court), the taxable amount, for the purposes of turnover tax, is reduced by the rebates provided by companies like Boehringer to pharmacies and wholesalers with respect to public health insurance funds.

III. The facts in the main proceedings and the question referred for a preliminary ruling

15Boehringer is a pharmaceutical company which manufacturers medicinal products and supplies those products, subject to tax, to pharmacies via wholesalers. It did so in 2011, the year at issue in this case.

16In Germany pharmacies issue Boehringer’s pharmaceutical products to persons with statutory (public) health insurance pursuant to a framework agreement concluded with the national association of public health insurance funds. The pharmaceutical products are supplied to the public health insurance funds and the latter make them available to persons insured by them. The pharmacies grant the public health insurance funds a discount on the price of the medicinal products. As a pharmaceutical company, Boehringer is required, pursuant to Paragraph 130a(1) of the SGB V, to reimburse the pharmacies — or wholesalers when they are involved — for this discount. For the purposes of turnover tax, the tax authority treats the discount as a reduction in remuneration.

17The pharmacies issue pharmaceutical products to persons with private health insurance pursuant to individual contracts with them. Unlike the public health insurance funds, private health insurance funds are not themselves the customer for the medicinal products, but merely reimburse the persons insured by it for the costs incurred when they purchase pharmaceutical products. Pharmaceutical companies like Boehringer are then bound, pursuant to Paragraph 1 of the AMRabG, to grant the private health insurance funds a discount on the price of the medicinal product. The Member State taxation authority does not regard this discount as a reduction in remuneration for the purposes of turnover tax. If a person covered by private insurance does not seek reimbursement, then no rebate has to be paid by companies like Boehringer under Article 1 of the AMRabG read in conjunction with Article 130a of the SGB V. ⁴

18In the year 2011 Boehringer granted the required discounts to private health insurers and nonetheless took them into account in its turnover tax return as a change in the basis for calculating its supplies of pharmaceutical products to traders in pharmaceutical products. As a result of a special turnover tax check, the Member State taxation authority issued an amended turnover tax assessment in which these discounts were not taken into account as reducing remuneration. An objection to this lodged by Boehringer was unsuccessful.

19Boehringer therefore brought an action before the Finanzgericht (Finance Court). The Finanzgericht amended the turnover tax assessment, to take account of the post-sale discount afforded to private health funds, in such a way that the turnover was assessed in Boehringer’s favour on the basis of the annual turnover tax assessment. The Member State taxation authority brought an appeal on a point of law against the judgment of the Finanzgericht (Finance Court) to the Bundesfinanzhof (Federal Finance Court).

20The fifth chamber of the Bundesfinanzhof (Federal Finance Court) referred the following question for a preliminary ruling:

‘On the basis of the case-law of the Court of Justice of the European Union (judgment of 24 October 1996 in Elida Gibbs, C‑317/94, EU:C:1996:400, paragraphs 28 and 31) and having regard to the principle of equal treatment under EU law, is a pharmaceutical company which supplies medicinal products entitled to a reduction of the taxable amount under Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in the case where

it supplies those medicinal products to pharmacies via wholesalers,

the pharmacies supply those products, subject to tax, to persons with private health insurance,

the insurer of the medical expense insurance (the private health insurance company) reimburses the persons insured by it for the costs of purchasing the medicinal products, and

the pharmaceutical company is required to pay a “discount” to the private health insurance company pursuant to a statutory provision?’

21Written observations were filed with the Court by Boehringer, the German and the United Kingdom Governments and the European Commission. There was no hearing.

IV. Summary of arguments

A. Boehringer and the Commission

22Boehringer and the Commission argue breach of the principle of equal treatment (the former relying specifically on Article 20 of the Charter of Fundamental Rights of the European Union) for which there is no objective justification.

23Independently of this, Boehringer contends that the same result follows from Article 73 of Directive 2006/112 as interpreted in the light of the ruling of the Court in Glawe. ⁵ In that case the Court held that, in the case of gaming machines which, pursuant to mandatory statutory requirements, were set up in such a way that they paid out as winnings on average at least 60% of the stakes inserted, the consideration actually received by the operator, pursuant to the predecessor to Article 73 of Directive 2006/112, ⁶ in return for making the machines available, consisted only of the proportion of the stakes the operator could actually take for itself. ⁷

24For Boehringer this means that the discount furnished by Boehringer to private insurance funds must equally be taken into account, given that the amount of the reduction is clear and fixed in advance, and that Boehringer is bound by German law to reimburse a fixed part of the sale price of its pharmaceutical products to private insurance funds.

25Boehringer and the Commission also rely on Article 90 of Directive 2006/112, as interpreted in Elida Gibbs, and refute arguments made in the written observations of Germany and the United Kingdom to the effect that Elida Gibbs and subsequent rulings such as Ibero Tours ⁸ (discussed below at points 35 to 39) stand for the proposition that payments made to an entity outside of a supply chain, such as a private insurance fund, cannot be viewed as a reduction in price after the supply takes place under Article 90 of Directive 2006/112.

26For Boehringer and the Commission the entity offering the price reduction to the final consumer does not have to be at the start of the value chain. The primary factor in determining the taxable amount is the amount actually received by the supplier and not what the beneficiary of the supply has spent. ⁹ They both invoke the principle of fiscal neutrality. ¹⁰ The Commission notes that, from an economic point of view, there is no difference in the position of private and public health insurance funds.

27The Commission submits that the objective of the German law on price reductions for pharmaceutical products is to secure equal treatment between public and private health insurance undertakings. ¹¹ This the Commission argues necessarily has to extend to VAT.

B. Germany and the United Kingdom

28As already mentioned, both Germany and the United Kingdom are of the view that the finding in Elida Gibbs to the effect that there need be no contractual relationship between the final consumer and a taxable person, before price discounts provided by the latter to the former can be taken into account in calculating the taxable amount, is subject to the taxable person being within a chain of transactions ending with the final consumer. Germany and the United Kingdom contend that this analysis is supported by the Court’s ruling in Ibero Tours (discussed below at points 35 to 39), ¹² and the United Kingdom further points out that the principles of Elida Gibbs were reaffirmed in Commission v Germany. ¹³

29Germany and the United Kingdom recall that there can only be consideration if there is a direct link between the goods supplied and the consideration received, ¹⁴ and that no such link exists between Boehringer and private health insurance funds. Article 73 of Directive 2006/112 must be interpreted in conformity with the fundamental principal that the VAT system is aimed at taxing only the end consumer. ¹⁵ The taxable amount comprises the consideration actually received by the taxable person, and not a value estimated according to objective criteria. ¹⁶ Germany notes that, under the Court’s case-law, the determining factor with respect to consideration is the existence of an agreement between the parties for reciprocal performance, the payment received by the one being the real and effective counter-value for the goods furnished to the other. ¹⁷ Thus, the consideration received by Boehringer remains, with respect to supplies to privately insured persons, the sum it received from the first customer in the supply chain, its client pharmacies, or wholesalers, as the case may be.

30The United Kingdom adds that the payments made by Boehringer cannot be considered subsidies under Article 73 of Directive 2006/112, ¹⁸ and that Article 90 of Directive 2006/112 cannot apply to a situation where a national law requires a supplier to pay a contribution, charge, or levy (for example, to help support the private provision of health care). The United Kingdom argues that private health insurance funds are not customers or third parties. Germany notes that Article 79(b) of Directive 2006/112, which precludes from the taxable amount price discounts and rebates granted to the customer and obtained by him at the time of the supply, is not relevant to the main proceedings, and further argues that the main proceedings are akin to disputes in which the Court has held that the taxable amount in sales paid for by credit card remains the full sale price, when a sum less than this, furnished by the credit provider, is accepted by the taxable person in consideration of the credit card service. ¹⁹

31With respect to the alleged breach of equal treatment and fiscal neutrality, Germany and the United Kingdom take the view that the rebate paid by Boehringer to pharmacies (and where pertinent wholesalers) in the supply of pharmaceutical products via public health insurance funds is not comparable to the rebate paid by Boehringer to private health insurance funds. ²⁰ Germany adds that there is no risk of distortion of competition; pharmaceutical products supplied to persons covered by public health insurance are not in competition with pharmaceutical products supplied to privately insured people. Given the two situations are not comparable, there is no need to consider objective justification. The United Kingdom contends that the choice of the EU legislature on the manner in which the supplies should be treated should be respected.

32The United Kingdom adds that the principle of fiscal neutrality, reflecting the common system of VAT and intended to tax only the final consumer, is not a rule of primary law which on its own enables the taxable amount within the meaning of Article 73 and Article 90 to be determined. ²¹

V. Assessment

33The question referred is to be answered in the affirmative for the following reason.

34I take the view that the essence of the development of the law in Elida Gibbs lay solely in the finding that it is unnecessary for a taxable person to be contractually linked to the direct beneficiary of a discount before that discount can amount to a price reduction after supply takes place for the purposes of Article 90 of Directive 2006/112. ²² The absence, then, of a contractual link between Boehringer and the private insurance funds to whom it is required to afford, under German law, a post-purchase discount indexed to price is equally irrelevant in the main proceedings to the applicability of Article 90 of Directive 2006/112.

35In addition to this, I am unable to draw from the ruling of the Court in Ibero Tours ²³ any express finding or necessary implication that the Elida Gibbs rule only applies when the recipient of a discount is the final consumer in a supply chain beginning with the taxable person providing the discount. Indeed, the Court has held that there is no indication in the Elida Gibbs ruling that it was intended to be interpreted restrictively, and that the judgment supports the wording of Article 11C(1) of the Sixth VAT Directive ²⁴ (now Article 90 of Directive 2006/112) which presupposes that subsequent modification of contractual relations is not necessary. ²⁵

36Ibero Tours, the taxable person in that case, was a travel agent that provided services as an intermediary between tour operators and the tour operator’s clients (‘travellers’). Unlike the case to hand, which involves a chain of supply, this entailed a single supply. Ibero Tours received a commission from tour operators for its services as an intermediary in this single supply, and used some of this commission to effectively subsidise travellers, so that the amount received by the tour operator was higher than that paid by travellers. Ibero Tours argued on the basis of Elida Gibbs that the price reductions it afforded travellers should be deducted from the commission Ibero Tours received from the tour operators for the purposes of calculating the taxable amount of Ibero Tours transactions.

37In essence Ibero Tours’ claim was rejected because it was held by the Court to be an intermediary to a single transaction only, rather than part of a chain of transactions. The Court pointed out in Ibero Tours that the consideration received by the taxpayer at the head of the supply chain in Elida Gibbs was actually reduced by the reduction it granted directly to the final consumer via a voucher scheme, ²⁶ while Ibero Tours was bound to pay the tour operator the agreed price for its travel services, regardless of any discount that Ibero Tours elected to give to the travellers. ²⁷ Nor was there any impact on the consideration received by Ibero Tours for their intermediation service. Accordingly, pursuant to Article 11 A(1)(a) of the Sixth Directive (now Article 73 of Directive 2006/112), such a price reduction did not lead to a reduction of the taxable amount either for the principal transaction or for the supply of services by the travel agent. ²⁸

38I read therefore the reference in the judgment in Ibero Tours to the tour operator ‘not being at the head of a chain of operations, as it provides services directly to the final consumer’ simply as underscoring the fact that, in that case, Ibero Tours provided only an intermediary service to a single transaction. ²⁹ Manifestly, Boehringer is not in the same position.

39Moreover, neither the taxpayer in Elida Gibbs nor Ibero Tours were providing price discounts as a consequence of legislative intervention that bound them to do so, and which was, moreover, indexed to the price of the supply. This appears from the case file to be the case, however, with respect to Boehringer.

40I am therefore of the view that, in accordance with the Court’s case-law, Boehringer has not had ‘freely at its disposal the full amount’ of the price received at first sale of its products to pharmacies or wholesalers. ³⁰ At most, Boehringer is a ‘mere temporary custodian’ ³¹ of the part of the amount received that it is bound to pay later to public and private health funds as a rebate and which, importantly, is indexed to the price of the pharmaceutical products supplied.

41The Court reached a conclusion of this kind in International Bingo Technology, in the context of legislative intervention on the amount paid as winnings for a bingo card game. ³² The Court held that that since ‘the proportion of the card price which is paid as winnings to players is fixed in advance and is mandatory, it cannot be regarded as part of the consideration received by the organiser of the game for the supply of the service provided to players’. ³³

42Since both Article 73 and Article 90 of the VAT Directive address the components of ‘taxable amount’, I can see no reason why the ruling made in the context of the meaning of ‘consideration’ under Article 73 in International Bingo Technology cannot be applied to the interpretation of ‘where the price is reduced’ under Article 90. ³⁴ Nor, I would add, does any question arise as to whether Boehringer makes payments to private health funds as consideration for some sort of service. ³⁵ This is clearly not the case.

43I acknowledge that the Court has observed that it ‘hardly appears to be appropriate to draw general conclusions’ from the taxation of gambling transactions ‘in order to apply them to the ordinary taxation of supplies of goods’. ³⁶ However, I do not view these remarks as extending to circumstances in which Member State legislation intervenes to compel the taxpayer to reduce the price it will ultimately receive for a supply in proportion to the price of that supply, through mandatory payments to either the ultimate consumer or a third party. The Court held in Town and County Factors that the full amount of entry fees received by the organiser of a competition, when the organiser elected to pay out a prize, constituted the taxable amount for that competition, partly because there were no mandatory statutory provisions to the effect that a certain percentage of player’s stakes had to be paid out. ³⁷

44Indeed, casting privately insured persons as the final consumers in the supply chain, rather than their private health funds, might be viewed as a legal fiction, particularly when the VAT paid by such persons to pharmacies is paid back to them as part of the reimbursement provided by private health funds. After all, the Court has held that ‘consideration of economic realities is a fundamental criterion for the application of the common system of VAT”. ³⁸

45Thus, payments, made at point of purchase might be viewed as consideration provided by a third party pursuant to Article 73 of Directive 2006/112, when such third parties seek reimbursement from private health insurance funds and Boehringer becomes liable under German law to provide the rebate set by paragraph 1 of the AMRabG. On this analysis, a private health insurance fund can be viewed as the final consumer of a supply made by Boehringer as the taxable person, so that, the amount of VAT to be collected by the tax authority will correspond exactly to the amount of VAT declared on the invoice and paid by the final consumer. ³⁹ The fact that a private insurance fund is not the direct beneficiary of the medicinal products supplied by Boehringer does not break the direct link between the supply of those goods and the consideration received. ⁴⁰

46The approach I am advocating will avoid a situation in which the tax authorities charge an amount that exceeds the tax paid by Boehringer as the taxable person. ⁴¹ It will, moreover, respect the fundamental principle of VAT to the effect that the basis of assessment is the consideration actually received, ⁴² which translates with respect to Article 90 of Directive 2006/112/EC into a requirement to reduce the taxable amount whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. ⁴³

47Finally, given that Article 90 of Directive 2006/112/EC is to be interpreted in conformity with the principle of equal treatment, as reflected in Article 20 of the Charter, this too supports an affirmative answer to the question referred. Irrespective of whether or not there is competition between the supply of publicly funded and privately funded pharmaceutical products, the Court has held that equal treatment is not confined in tax matters to the principle of fiscal neutrality as between competing traders, but may be breached by other kinds of discrimination which affect traders who are not necessarily in competition with each other but who are nevertheless in a similar situation in other respects. ⁴⁴ I note that the order for reference states that the two discounts can only be differentiated by their technical characteristics, even though their tax treatment for the purposes of VAT is significantly different.

48In the light of the subject matter of Article 90 of Directive 2006/112, and its aim of ensuring that the bases of assessment of VAT is to be the consideration actually received, along with the principles and objectives of VAT law, ⁴⁵ I take the view that VAT treatment of pharmaceutical supplies to publicly and privately insured persons are comparable situations that are being treated differently, for which there is no apparent objective justification. ⁴⁶

49In closing, I agree that VAT is an indirect tax on consumption borne by the consumer, and the taxable trader is “‘simply’” acting as tax collector on behalf of the State’. ⁴⁷ I therefore support the view that ‘in the event of an otherwise irreconcilable difference, the requirement that the amount of VAT levied should be the correct proportion of the actual value finally received by the supplier (and, for the chain as a whole, of the final price) should be given greater weight than structural requirements. In other words, achievement of the end is more important than implementation of the means designed to achieve it’. ⁴⁸

VI. Conclusion

50I therefore propose the following answer to the question referred by the Bundesfinanzhof (Federal Finance Court, Germany):

On the basis of the case-law of the Court of Justice of the European Union (judgment of 24 October 1996 in Elida Gibbs, C‑317/94, EU:C:1996:400, paragraphs 28 and 31) and having regard to the principle of equal treatment under EU law, a pharmaceutical company which supplies medicinal products is entitled to a reduction of the taxable amount under Article 90 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in the case where

it supplies those medicinal products to pharmacies via wholesalers,

the pharmacies supply those products, subject to tax, to persons with private health insurance,

the insurer of the medical expense insurance (the private health insurance company) reimburses the persons insured by it for the costs of purchasing the medicinal products, and

the pharmaceutical company is required to pay a ‘discount’ to the private health insurance company pursuant to a statutory provision.

¹ Original language: English.

² OJ 2006 L 347, p. 1.

³ Judgment of 24 October 1996, C‑317/94, EU:C:1996:400, ‘Elida Gibbs’.

⁴ According to the written observations of Germany.

⁵ Judgment of 5 May 1994, C‑38/93, EU:C:1994:188.

⁶ Namely Article 11A(1)(a) of Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, OJ 1977 L 145, p. 1 (‘the Sixth VAT Directive’).

⁷ Judgment of 5 May 1994, C‑38/93, EU:C:1994:188, paragraph 9. Boehringer also refers to paragraph 12 of the same judgment, and judgments of 17 September 2002, Town & County Factors, C‑498/99, EU:C:2002:494, paragraph 30; of 27 March 2014, Le Rayon d’Or, C‑151/13, EU:C:2014:185, paragraph 29; and Elida Gibbs, paragraph 27. In the latter, the Court noted that it was settled case-law that ‘consideration is the “subjective” value, that is to say, the value actually received in each specific case, and not a value estimated according to objective criteria’.

⁸ Judgment of 16 January 2014, C‑300/12, EU:C:2014:8.

⁹ Here Boehringer refers to paragraphs 29 and 35 of the judgment of the Court of 27 March 2014, Le Rayon d’Or, C‑151/13, EU:C:2014:185, and paragraph 28 of Elida Gibbs. The Commission refers to the judgments of 3 July 1997, Goldsmiths, C-330/95, EU:C:1997:339, paragraph 15; and of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 20.

¹⁰ The Commission relies on the order of 9 December 2011, Connoisseur Belgium, C‑69/11, not published, EU:C:2011:825, paragraph 21, and the judgment of 8 June 2006, L.u.P., C‑106/05, EU:C:2006:380, paragraph 48 and the case-law cited.

¹¹ The Commission refers to Document of the Bundestag 17/3698, pp. 60 and 61 (http://dipbt.bundestag.de/dip21/btd/17/036/1703698.pdf).

¹² Judgment of 16 January 2014, C‑300/12, EU:C:2014:8.

¹³ Judgment of 15 October 2002, C‑427/98, EU:C:2002:581.

¹⁴ Germany cites the judgment of 21 November 2013, Dixon’s Retail, C‑494/12, EU:C:2013:758, paragraph 33 in support of this argument. The United Kingdom refers to judgments of 5 February 1981, Coöperatieve Aardappelenbewaarplaats, C‑154/80, EU:C:1981:38, paragraph 12; of 23 November 1988, Naturally Yours Cosmetics, C‑230/87, EU:C:1988:508, paragraph 11; and of 8 March 1988, Apple and Pear Development Council, C‑102/86, EU:C:1988:120, paragraphs 11 and 12.

¹⁵ Germany cites the judgment of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 34 in support of this argument.

¹⁶ Ibid., paragraph 33.

¹⁷ Germany relies on the judgment of 15 May 2001, Primbrack, C‑34/99, EU:C:2001:271, paragraph 25.

¹⁸ The United Kingdom relies on judgment of 22 November 2011, Office des produits wallons, C‑184/00, EU:C:2001:629, paragraph 18.

¹⁹ Germany refers to the judgments of 25 May 1993, Bally, C‑18/92, EU:C:1993:212, paragraph 16, and of 15 May 2001, Primback, C‑34/99, EU:C:2001:271, paragraph 38.

²⁰ Germany refers, among others, to the judgments of 10 April 2008, Marks & Spencer, C‑309/06, EU:C:2008:211, paragraph 49; of 19 July 2012, Lietuvos geležinkeliai, C‑250/11, EU:C:2012:496, paragraph 45; and of 6 November 2014, Feakins, C‑335/13, EU:C:2014:2343, paragraphs 49 and 51.

²¹ The United Kingdom cites the judgments of 15 November 2012, Zimmermann, C‑174/11, EU:C:2012:716, and of 19 December 2012, Grattan, C‑310/11, EU:C:2012:822 in support of this argument.

²² See the Opinion of Advocate General Kokott in Grattan, C‑310/11 EU:C:2012:568, point 32, where the Advocate General observed that ‘in Elida Gibbs the Court found for the first time that a reduction on the basis of assessment is potentially to be accepted even where the contractually defined consideration is not modified at all.’ I also note that, as pointed out in the written observations of Boehringer, an important observation made by Advocate General Wathelet at point 29 of his Opinion in Ibero Tours, C‑300/12, EU:C:2013:502, was not contradicted by the Court in that case. Advocate General Wathelet observed that even ‘though the Court regarded the taxable person as “the first link in a chain of transactions”, that is a reference to the facts of the case leading to the judgment in Elida Gibbs, in which the manufacturer offering the price reduction to the final consumer was at the start of the value chain, rather than a statement of a prerequisite for benefiting from the reduction in the taxable amount.’

²³ Judgment of 16 January 2014, C‑300/12, EU:C:2014:8.

²⁴ Judgment of 29 May 2001, Freemans, C‑86/99, EU:C:2001:291, paragraph 33.

²⁵ Ibid.

²⁶ Judgment of the Court of 16 January 2014, Ibero Tours, C‑300/12, EU:C:2014:8, paragraph 29.

²⁷ Ibid., paragraph 31.

²⁸ Ibid., paragraph 32.

²⁹ Ibid., paragraph 30.

³⁰ Judgment of 19 July 2012, International Bingo Technology, C‑377/11, EU:C:2012:503, paragraph 31. See also the judgments of 5 May 1994, Glawe, C‑38/93, EU:C:1994:188 and of 24 October 2013, Metropol Spielstätten, C-440/12, EU:C:2013:687.

³¹ Judgment of 19 July 2012, International Bingo Technology, C‑377/11, EU:C:2012:503, paragraph 19. This suggestion was made by the national referring court in that case.

³² The Court reached this conclusion in the context of the predecessor to Article 73 of Directive 2006/112, namely Article 11A(1)(a) of the Sixth VAT Directive.

³³ Judgment of 19 July 2012, International Bingo Technology, C‑377/11, EU:C:2012:503, paragraph 28.

³⁴ I also note that the rebates paid by Boehringer do not fall within the matters precluded in calculation of the taxable amount appearing in Article 79 of Directive 2006/112.

³⁵ As has been held to occur when credit card services intervene in a retail sale between customers and stores. See, for example, judgment of 15 May 2001, Primback, C‑34/99, EU:C:2002:271.

³⁶ Judgment of 29 May 2001, Freemans, C‑86/99, EU:C:2001:291, paragraph 30. See also the Opinion of Advocate General Stix-Hackl in Town and County Factors, C‑498/99, EU:C:2001:494, point 74. Advocate General Jacobs in Glawe, C-38/93, EU:C:1994:81, observed at point 16 that ‘gaming transactions are ill-suited to value added taxation.’

³⁷ Judgment of 17 September 2002, Town and County Factors, C‑498/99, EU:C:2002:494, paragraph 30. See also the Opinion of Advocate General Kokott in Grattan, C‑310/11, EU:C:2012:568, point 45.

³⁸ Judgment of 7 October 2010, Loyalty Mangement, C-53/09 and C-55/09, EU:C:2010:590.

³⁹ Judgment of 10 July 2008, Koninklijke Ahold, C‑484/06, EU:C:2008:394, paragraph 36, citing Elida Gibbs, paragraph 24.

⁴⁰ See, by analogy, judgment of 27 March 2014, Rayon d’Or, C‑151/13, EU:C:2014:815, paragraph 35.

⁴¹ E.g. judgment of 26 January 2012, Kraft Foods Polska SA, C‑588/10, EU:C:2012:40, paragraph 27 and the case law cited; and of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 36.

⁴² My emphasis. See e.g. the judgment of 26 January 2012, Kraft Foods Polska, C‑588/10, EU:C:2012:40, paragraph 27 and the case-law cited.

⁴³ See judgments of 15 May 2014, Almos Agrárkülkereskedelmi, C‑337/13, EU:C:2014:328, paragraph 22 and the case-law cited; and of 19 December 2012, Grattan, C‑310/11, EU:C:2012:822, paragraph 35, with respect to the predecessor to Article 90 of Directive 2006/112, namely Article 11C(1) of the the Sixth VAT Directive

⁴⁴ Judgment of 25 April 2013, Commission v Sweden, C‑480/10, EU:C:2013:263, paragraph 17 and the case law cited.

⁴⁵ Judgment of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 42 and the case-law cited.

⁴⁶ See order for reference.

⁴⁷ Opinion of Advocate General Kokott in Di Maura, C‑246/16, EU:C:2017:440, point 21 and the case law cited.

⁴⁸ See the Opinion of Advocate General Jacobs in Commission v Germany, C‑427/98, EU:C:2001:457, point 110.