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Equal treatment EU VAT case law

23 cases of the Court of Justice and the General Court of the European Union on this point of VAT law, from 1988 to 2025.

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Under each case, what the Court decided, from its summary. The summaries are AI-generated and are not official documents: open the case for the Court’s own text.

C-375/24 Keesing Deutschland

Judgment · 1 August 2025

Sudoku books fall within tariff heading 4902 and the reduced rate

The Court holds that such goods come under tariff heading 4902. The publications appear at regular intervals under the same title and so display the characteristics of a periodical, and their content, consisting mainly of puzzle grids, does not take them outside that heading. The reduced rate that the national legislation attaches to that heading therefore applies to their supply. A reminder that where a Member State uses the Combined Nomenclature to delimit a reduced rate category, as Article 98(3) expressly allows, customs classification decides the VAT rate and the customs case law governs.

C-278/24 Genzyński

Judgment · 30 April 2025 · Poland

Joint and several liability of company directors for VAT arrears

They do not preclude such a system, provided liability is confined to arrears arising during the director's term and to amounts unrecovered from the company, and provided the director can genuinely rebut the presumption by showing he exercised all due diligence in managing the company's affairs. The escape route must not be merely theoretical. But the mere fact that the exchequer was the company's sole creditor when permanent insolvency arose is not by itself a defence. Confirms Member States may attach personal VAT liability to directors on a rebuttable presumption of knowledge and influence, without proof of fraud or bad faith, following Herdijk.

C-606/22 Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Possibility of adjustment in the case of incorrect rate)

Judgment · 21 March 2024 · Poland

Correcting an incorrect VAT rate where only till receipts were issued

Such a practice is precluded. VAT is automatically included in the agreed price under Article 78(a), even where the rate was wrongly determined, but that does not deprive the supplier of a right to a refund, notably where the excessive rate cost it sales volume or margin. Refusing correction solely because till receipts, not invoices, were issued breaches effectiveness where cash register memory allows accurate correction. Unjust enrichment may be invoked only if the authorities establish, by economic analysis of all relevant circumstances, that the burden was completely neutralised. Retailers and consumer facing businesses across sectors (leisure, hospitality, food) that have charged too high a rate on till receipt sales can pursue adjustment by amended return.

C-505/22 Deco Proteste - Editores

Judgment · 5 October 2023 · Portugal

Subscription gifts as an ancillary supply, not a free transfer

The gift is a supply ancillary to the principal supply of the periodicals, forming part of a supply of goods for consideration under Article 2(1)(a), and is not a disposal of goods free of charge under the first paragraph of Article 16. It has no distinct purpose for the average consumer, who pays at least one month's subscription to obtain it, and it aids enjoyment of the magazines. Whether the criteria are met remains for the national court. The questions on the small-value gift ceiling were not answered. Publishers and any business using a device or gadget as an enrolment incentive can treat the item as following the tax treatment of the principal supply, here the reduced rate for periodicals, rather than accounting for output tax as a free transfer. Relevant to subscription media, telecoms bundles and loyalty and acquisition promotions generally.

C-802/19 Firma Z

Judgment · 11 March 2021 · Germany

Discounts to insured persons and reduction of the taxable amount

The pharmacy cannot reduce its taxable amount. The pharmacy's supply to the fund was an exempt intra-Community supply, so there was no taxable amount capable of adjustment, and the onward supply by the fund to its insured persons fell outside the scope of VAT altogether. The conditions of Article 90(1) were therefore not met, and there was no need to consider whether a chain of transactions within the meaning of Elida Gibbs existed. Offsetting a reduction against the taxable amount of a different transaction is precluded. Elida Gibbs relief presupposes a taxable amount of the discount-giver that can be reduced.

C-715/18 Segler-Vereinigung Cuxhaven

Judgment · 19 December 2019 · Germany

Reduced rate and the letting of boat moorings

The reduced rate does not apply to the letting of boat moorings. Point 12 of Annex III is an exception and must be read strictly. Mooring is not mentioned in its wording and is not intrinsically linked to "accommodation", its primary purpose being to keep boats immobile and secure. The social objective of facilitating access to accommodation is absent, since sailing and motor boats do not principally serve as accommodation. Neutrality is not infringed because moorings and camping pitches perform different functions and do not compete. In Member States that applied a reduced rate to overnight mooring charges, marinas, yacht clubs and harbour operators are standard rated, whether or not the fee is tied to overnight stays.

C-201/18 Mydibel

Judgment · 27 March 2019 · Belgium

Adjustment of input tax on a sale and lease back of buildings

Subject to the national court's verification of the facts and national law, no adjustment is required. Creating an emphyteutic right not subject to VAT is not in itself a change in the factors determining the deduction, and where the emphyteutic right and the leaseback are so closely linked as to form a single transaction, no supply of goods occurs because the institutions cannot dispose of the buildings as owner. Had adjustment been due, it would nevertheless respect neutrality and equal treatment. Relevant to businesses using sale and lease back of real estate as a financing tool, and to their lenders and lessors.

C-462/16 Boehringer Ingelheim Pharma

Judgment · 20 December 2017 · Germany

Statutory discounts to private health insurers and the taxable amount

The Court held that Article 90(1) requires the reduction. The manufacturer cannot freely dispose of the full price because the discount is fixed and mandatory by law, so part of the consideration is not received. The absence of any contractual link, or of a modification of contractual relations, does not preclude Article 90(1). On these facts the private insurer is to be treated as the final consumer of the manufacturer's supply, so VAT collected may not exceed what that final consumer paid. Manufacturers subject to statutory or regulated rebate schemes paid to parties outside the invoicing chain, in pharmaceuticals and comparable regulated sectors, can reduce the taxable amount rather than absorbing VAT on rebated amounts.

C-534/16 BB construct

Judgment · 26 October 2017 · Slovakia

Guarantee required on VAT registration where the director has links to a company with tax debts

Article 273 and Article 16 of the Charter do not preclude such a guarantee, provided it goes no further than necessary. That assessment is for the national court. Proportionality requires the amount to correlate with the future risk of non-payment and the earlier debts, and to reflect the person's actual role in both companies. Automatic calculation the taxable person cannot see or contest may exceed what is needed. Equal treatment is not breached because those linked to companies with tax debts differ from those with other debts. Articles 49 and 50 do not apply, as the guarantee is not a penalty. Confirms that Member States may make VAT registration conditional on security based on the registration applicant's directors' history, and that such security is not a penalty, so ne bis in idem and non-retroactivity arguments fail.

C-38/16 Compass Contract Services

Judgment · 14 June 2017 · United Kingdom

Different transitional limitation periods for repayment and deduction claims

The Court held that the principles do not preclude such legislation. The right to repayment of overpaid VAT derives from general EU law and neutralises a wrongly imposed burden. The right to deduct is inherent in the VAT system and presupposes tax actually due. The two are not comparable, so equal treatment permits different transitional dates. Neutrality was not engaged (no differing treatment of competing traders), and a three-year period with non-retroactive transitional arrangements is reasonable. Confirms that overpayment claims and input tax claims are legally distinct for limitation purposes, so a taxpayer cannot borrow the more generous cut-off applying to the other category.

C-390/15 RPO

Judgment · 7 March 2017 · Poland

Reduced rate for e-books supplied electronically

Nothing affects the validity of either provision. The final wording was a simplification of the proposal preserving its substance, so no fresh consultation was required. Supplies of digital books on a physical support and electronically are comparable in the light of the objective of promoting reading, and the classification as goods or services is not decisive, but the difference in treatment is justified by the legitimate aim of clear, uniform and certain rules for electronically supplied services, within the legislature's broad discretion. Confirms that, on the law as it then stood, Member States could not apply a reduced rate to electronically supplied books, whatever the equivalence with physical formats.

C-599/12 Jetair and BTWE Travel4you

Judgment · 13 March 2014

Standstill taxation of travel agents' services for journeys outside the EU

The standstill provisions do not preclude legislation adopted during the transposition period imposing VAT on travel agents' non-EU journeys. The Directive expressly fixed 01-01-1978 as the reference date, so such a law did not seriously compromise its result. A Member State taxing those services on 01-01-1978 need not apply Article 309. Article 370 with Annex X, Part A, point 4 is valid despite the resulting divergence, harmonisation being still partial. Treating margin-scheme travel agents differently from intermediaries is lawful, the two not being comparable. Confirms that Belgium may continue to tax margin-scheme supplies relating to journeys outside the EU, closing off refund claims built on Article 309 for periods since 1978.

C-480/10 Commission v Sweden

Judgment · 25 April 2013 · Sweden

Restricting VAT grouping to the financial and insurance sector

The action was dismissed. Article 11 is not a derogating provision to be read narrowly, and its first paragraph imposes no condition as to type of activity or sector, but the second paragraph allows restrictions to combat tax evasion or avoidance, provided EU law is respected, and the Commission had not convincingly shown Sweden's confinement of grouping to entities under Finance Inspectorate supervision was unfounded. The equal treatment plea was inadmissible, having been raised only after a reasoned opinion based on fiscal neutrality. Sector-limited grouping regimes survive, but on anti-avoidance grounds rather than any inherent Member State discretion over scope. Relevant to financial, insurance and outsourced-services groups in Sweden and in other Member States with similarly narrow schemes.

C-643/11 LVK

Judgment · 31 January 2013 · Bulgaria

Asymmetric treatment of issuer and recipient of an invoice where no supply took place

VAT entered on an invoice is payable under Article 203 regardless of whether a taxable transaction exists, and no inference of acceptance arises from the authorities leaving the issuer's declaration unadjusted. Issuer and recipient are not in comparable situations. Deduction may therefore be refused for want of an actual transaction. But where the finding of no supply rests on fraud or irregularities by the issuer or upstream, the authorities must establish on objective factors that the recipient knew or should have known of the fraud, without demanding checks that are not his responsibility. Customers cannot defend a deduction simply by pointing to the supplier having declared and been assessed on the same VAT. Relevant to agricultural, commodity and other chain-supply trades facing missing-trader challenges.

C-310/11 Grattan

Judgment · 19 December 2012 · United Kingdom

No retrospective reduction of the taxable amount under the Second Directive

Article 8(a) confers no such right. Under Article 5(5) the chargeable event occurred on delivery and the tax debt arose on the basis of assessment fixed at that moment. The Second Directive contained nothing allowing regularisation afterwards. Fiscal neutrality cannot supply what Article 11C(1) of the Sixth Directive later added. Since the sub-customers, as final consumers, paid the unreduced catalogue price and the commission went to the agents, the taxable amount was that full price. Closes off pre-1978 repayment claims resting on post-supply rebates, credits or agents' commission, a Fleming-style claim pattern familiar to UK retailers and their advisers.

C-285/11 Bonik

Judgment · 6 December 2012 · Bulgaria

Deduction refused because upstream supplies could not be traced

Deduction may not be refused on the ground that, in view of fraud or irregularities committed upstream or downstream, the supply is deemed not to have taken place, unless it is established on objective evidence that the taxable person knew or should have known that his transaction was connected with VAT fraud in the chain. The national court must still verify that the supplies were actually made and the goods used for taxed output transactions, and whether the authorities have produced that objective evidence. Confirms Mahagében and Dávid for Bulgarian-style "absence of actual supply" reasoning.

C-97/09 Schmelz

Judgment · 26 October 2010 · Austria

Small undertakings exemption limited to established persons

The exclusion does restrict the freedom to provide services, but it is justified and proportionate. Effective fiscal supervision is only feasible in the State of establishment, small undertakings are typically not VAT identified there, and existing administrative cooperation instruments yield no usable turnover data. The provisions are therefore valid under Article 49 EC. "Annual turnover" means the turnover generated in one year in the Member State in which the undertaking is established, not Union-wide turnover. Non-established persons with modest taxable activity in another Member State, notably individuals letting residential property abroad and small cross-border service providers, cannot claim the host State's small business exemption and must register and account for VAT there from the first euro, with input deduction as the only offset.

C-460/07 Puffer

Judgment · 23 April 2009 · Austria

Full deduction on mixed-use buildings and the scope of the standstill clause

Articles 17(2)(a) and 6(2)(a) do not breach equal treatment. Any cash-flow advantage flows from the taxable person's status and economic activity, so different rules apply to different situations. Article 87(1) EC does not apply, since the restriction of deduction to taxed transactions derives from the Directive itself, not State intervention. The standstill clause does not cover new rules based on a different logic and new procedures, even where the outcome is equivalent and even if the legislature misread Community law. Whether an unamended parallel exclusion survives depends on its autonomy, for the national court. Confirms that a taxable person allocating a mixed-use building wholly to the business may deduct all input VAT immediately, with private use taxed under Article 6(2)(a). Relevant to property owners and advisers handling mixed-use construction, and to any challenge to grandfathered domestic input tax blocks.

C-302/07 J D Wetherspoon

Judgment · 5 March 2009 · United Kingdom

Rounding of VAT amounts by retailers selling at tax-inclusive prices

Community law contains no specific requirement as to the method or the level of rounding. Both are for Member States, subject to fiscal neutrality and proportionality. It neither precludes national rules requiring rounding up at 0.50 or above nor requires that taxable persons be permitted to round down. Traders pricing inclusive of VAT are in a different situation from those pricing exclusive of VAT, because systematic rounding down before the periodic return would let them retain part of the tax collected, so they cannot invoke neutrality to claim the same concession. Retailers and other B2C businesses quoting VAT-inclusive prices cannot rely on EU law to compel a rounding-down method, nor to import concessions given to businesses invoicing on VAT-exclusive prices. Relevant to hospitality, food and drink, and high-volume retail with till-based VAT calculation, and to advisers negotiating bespoke retail schemes.

C-309/06 Marks & Spencer

Judgment · 10 April 2008 · United Kingdom

Recovery of VAT wrongly charged on nationally zero-rated supplies and the unjust enrichment defence

No directly enforceable Community-law right to zero-rating arises. The derogation is optional and national. But the general principles, including fiscal neutrality, do apply and give a right to recover tax mistakenly charged. An unjust enrichment defence is permissible in itself. Restricting it to payment traders and not repayment traders offends neutrality where similar goods are marketed, and offends equal treatment absent objective justification. Whether the trader suffered loss is irrelevant. The national court must remedy the discrimination, in principle by full repayment. Confirms that national derogatory zero rates and reduced rates sit inside the Community-law framework for repayment purposes, so taxpayers challenging misclassification can invoke neutrality and equal treatment even though the rate itself is purely domestic. Relevant to food, retail and any sector relying on legacy zero rates.

C-36/99 Idéal Tourisme

Judgment · 13 July 2000 · Belgium

Equal treatment and retained transitional exemptions for passenger transport

Given the present, only partial, harmonisation of VAT, equal treatment does not preclude a Member State from exempting international air passenger transport under Article 28(3)(b) while taxing coach transport. In retaining such pre-existing provisions the Member State is not transposing the Directive, so the general principles binding on implementation do not bite. Existing exemptions may be reduced but not extended. Equalising upwards by taxing air transport is permissible. The State aid question was held manifestly irrelevant and unanswered. Confirms that operators cannot use equal treatment to extend a retained Annex F exemption to themselves.

C-217/94 Eismann Atto Adige v Ufficio IVA di Bolzano

Judgment · 24 October 1996 · Italy

Domestic accompanying documents for goods in transport

Article 22(8) does not preclude such a rule. Article 22(8) applies only to transactions between Member States, requiring that they be treated no worse than internal transactions. The transitional arrangements aim to abolish fiscal frontiers and controls on intra-Community trade, not to harmonise or simplify formalities for purely internal transactions, which remain unharmonised. A Member State may therefore impose stricter formalities on domestic transactions than on intra-Community trade. The equal treatment clause is one directional.

C-299/86 Drexl

Judgment · 25 February 1988 · Italy

Residual VAT on private imports and disproportionate import penalties

Where no relief on exportation or exemption on importation was granted, the residual exporting-state VAT must be excluded from the taxable amount and also deducted from the import VAT due. Member States need not apply identical penalty regimes to import and domestic VAT offences, the offences differing in their constituent elements and detectability, but a manifest disproportion is incompatible with Article 95. Imprisonment and confiscation under smuggling rules where no comparable penalty applies domestically is such a disproportion. Confirms and applies Gaston Schul to private cross-border purchases of used goods, requiring a double adjustment (taxable amount and credit) for residual VAT. Relevant to advisers dealing with import VAT assessments, penalty regimes aligned to customs law, and confiscation of vehicles or goods.

Related topics

Right of deduction · Fiscal neutrality · Supply of goods or services · Obligations of taxable persons · Persons liable for payment of VAT · Tax evasion and abuse · VAT rates · Taxable amount · Supply of goods · Reduction of the taxable amount