“6. Under the Trust’s constitution, the principal purpose of the Trust is to provide goods and services for the purpose of the health service in England, but the Trust may also carry on activities for the purpose of generating additional income in order to better carry on its principal purpose (§14). 7. The Trust is required by its stakeholders and relevant guidance to ensure that its sites and services are accessible at reasonable cost. That obligation includes the provision of parking for patients and visitors at a reasonable price (§23). The area covered by the Trust is mostly rural, and availability of public transport can be limited or non-existent. Around 80% of visitors to the Trust’s main hospital sites arrive by car (§11). 8. The Trust’s parking facilities are mostly used by those accessing the hospital and healthcare facilities. The location of some of the Trust’s sites means that they are unsuitable for parking and visiting somewhere else. Some of the sites are, however, able to be used by people for general purposes. As an example, one of the sites was used for unofficial airport parking, following which the Trust took steps to deter such users by changing its fees for parking at that site (§27). 9. The Trust provides free parking to certain hospital users, including cancer patients and those visiting patients that are in hospital for an extended period of time. The Trust’s staff pay reduced rates for parking. Free parking is provided at particular local health centres for historic reasons, with the cost met from parking charges at other sites. Some sites make a loss on the provision of parking, but the Trust makes a small surplus at three of its four major sites, which is used to improve the provision of healthcare at the Trust (§§30–31). 10. The availability of alternative parking arrangements for the Trust’s sites varies and is limited. Some sites have little or no alternative parking suitable for patients, staff or visitors as it would not be close enough to the hospital. Some sites based in towns such as Hexham, Blyth and Alnwick do have alternative parking facilities. The parking areas at those sites are limited and they are often fully utilised by those using the healthcare facilities, so would not be available to shoppers or commuters visiting the towns (§25). 11. The FTT also made findings of fact in relation to the contractual arrangements pursuant to which the Trust provided services to the Northumberland and North Tyneside clinical commissioning group and certain guidance issued by the Department of Health...”
“The demand for parking spaces is such that the Trust must manage the access to and use of car parks, eg by adjusting visiting and shift times. I accept that the Trust would not operate as effectively if it did not manage parking efficiently.”
“1. Each site is different and very few will be able to provide spaces for everyone who needs one. Since 2010, national planning policy no longer imposes maximum parking standards on development, and no longer recommends the use of car parking charges as a demand management measure to discourage car use. … 5. ‘Reasonable’ implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued.”
“NHS bodies are allowed to charge for car parking and to raise revenue from it as an income generation activity as long as certain rules are followed. Income generation activities must not interfere to a significant degree with the provision of NHS core services. They must be profitable, as it would be unacceptable for monies provided for the benefit of NHS patients to be used to support commercial activities, and this profit must be used to improve health services.”
“NHS bodies should look at transport and car parking in a holistic way and determine a car parking structure accordingly, taking into account the different parking needs of staff, patients and visitors. For patients and visitors consideration will need to be given to healthcare needs and ability to pay.”
“How Much Should we Charge? 24. It must be remembered that you are in competition with both other means of transport and alternative car parking facilities. Hence attention should be given to: - the regularity of public transport and its charges; - other car parking charges in the area; - availability of free parking on nearby streets and roads; - your catchment area; - the need to cover costs; - the need to disincentivise non service users; - the need to make a profit to be used to improve health services.”
“The purpose of this guidance is to help NHS organisations identify best practice in car-park management and sustainable transport in order to improve the patient and visitor experience and support staff on their journeys to and from work.”
“…provide clear and consistent ground rules that will help manage car-parking provision in the NHS and help to improve the patient experience across the NHS…”
“NHS sites that are close to city/town centres may need to ensure their car-parking charges are not lower than local car-parks otherwise commuters and visitors may be tempted to use their car-parks instead. It may be necessary to increase charges if this is occurring.”
“3.7 NHS organisations should consider issuing parking charge notices only if all available solutions have been explored. Every effort should be made to contact the driver of the vehicle in question before a parking charge notice is issued. Where they are issued, each appeal received should be considered carefully and should be successful if there is a valid reason for the delay.”
“…it is important that NHS organisations ensure the journey is kept as straightforward as possible to avoid any unnecessary upset, anger and stress. Therefore, the car-parking layout should be assessed to ensure it will not cause difficulties for patients and visitors.”
“3.23 Car-park management plays a crucial part in the successful running of an NHS organisation. Without the appropriate car-park management, the patient and visitor experience will be poor. A contributory factor associated with missed appointments (known as Did Not Attends (DNAs)) is the difficulty of parking at a site. Analysing the current parking management set-up through surveys with staff and through site investigations will ensure that maximum car-park capacity can be achieved at all times and will reduce DNAs, as will identifying improvements for sustainable and public transport…”
“4.1 Many NHS organisations suffer from crowded car-parks, with seemingly inadequate provision of spaces for all of the patients, visitors and staff who want to access the site. … 4.9 One of the issues that NHS organisations face with car-parking demand is at peak times of the day, which include visiting times, shift changeovers and associated overlap periods, and clinic start and finish times. During these times it can be significantly harder to find a parking space, causing potential congestion at the site. This can often result in patients missing appointments, which will affect the overall experience of their visit.”
“1. States, regional and local government authorities and other bodies governed by public law shall not be regarded as taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with those activities or transactions. However, when they engage in such activities or transactions, they shall be regarded as taxable persons in respect of those activities or transactions where their treatment as non-taxable persons would lead to significant distortions of competition. In any event, bodies governed by public law shall be regarded as taxable persons in respect of the activities listed in Annex I, provided that those activities are not carried out on such a small scale as to be negligible. 2. Member States may regard activities, exempt under Articles 132, 135, 136, 371, 374 to 377, and Article 378(2), Article 379(2), or Articles 380 to 390b, engaged in by bodies governed by public law as activities in which those bodies engage as public authorities.”
“41A.Supply of goods or services by public bodies (1) This section applies where goods or services are supplied by a body mentioned in Article 13(1) of the VAT Directive (status of public bodies as taxable persons) in the course of activities or transactions in which it is engaged as a public authority. (2) If the supply is in respect of an activity listed in Annex I to the VAT Directive (activities in respect of which public bodies are to be taxable persons), it is to be treated for the purposes of this Act as a supply in the course or furtherance of a business unless it is on such a small scale as to be negligible. (3) If the supply is not in respect of such an activity, it is to be treated for the purposes of this Act as a supply in the course or furtherance of a business if (and only if) not charging VAT on the supply would lead to a significant distortion of competition. (4) In this section ‘the VAT Directive’ means Council Directive 2006/112/EC on the common system of value added tax.”
“12. As the Court held in its judgments of11 July 1985 in Case 107/84 Commission v Federal Republic of Germany [1985] ECR 2663 and of26 March 1987 in Case 235/85 Commission v Kingdom of the Netherlands [1987] ECR 1485, it is clear from that provision, when examined in the light of the aims of the directive, that two conditions must be fulfilled in order for the rule of treatment as a non-taxable person to apply: the activities must be carried out by a body governed by public law and they must be carried out by that body acting as a public authority. 13. A definition of the latter condition cannot be based, as has been argued, on the subject-matter or purpose of the activity engaged in by the public body since those factors have been taken into account by other provisions of the directive for other purposes. 14. The subject-matter or purpose of certain economic activities falling within the scope of VAT is a decisive factor, on the one hand, for the purpose of limiting the scope of the treatment of bodies subject to public law as non-taxable persons (third subparagraph of Article 4(5) of and Annex D to the Sixth Directive) and, on the other, for that of determining the exemptions referred to in Title X of the directive. Article 13(A)(1) of that title of the directive provides, inter alia, for exemptions in favour of certain activities carried out by bodies governed by public law or by other bodies regarded as social in nature by the Member State concerned by reason of their activities being in the public interest.”
“15. An analysis of the first subparagraph of Article 4(5) in the light of the scheme of the directive shows that it is the way in which the activities are carried out that determines the scope of the treatment of public bodies as non-taxable persons. In so far as that provision makes such treatment of bodies governed by public law conditional upon their acting “as public authorities”, it excludes therefrom activities engaged in by them not as bodies governed by public law but as persons subject to private law. Consequently, the only criterion making it possible to distinguish with certainty between those two categories of activity is the legal regime applicable under national law. 16. It follows that the bodies governed by public law referred to in the first subparagraph of Article 4(5) of the Sixth Directive engage in activities “as public authorities” within the meaning of that provision when they do so under the special legal regime applicable to them. On the other hand, when they act under the same legal conditions as those that apply to private traders, they cannot be regarded as acting “as public authorities”
“21. The national court must, in accordance with the case-law referred to in paragraphs 16 and 17 above, analyse all the conditions laid down by national law for the pursuit of the activity at issue in the main proceedings, to determine whether that activity is being engaged in under a special legal regime applicable to bodies governed by public law or under the same legal conditions as those that apply to private economic operators. 22. The fact that the pursuit of an activity such as that at issue in the main proceedings involves the use of public powers, such as authorising or restricting parking on a public highway or penalising by a fine the exceeding of the authorised parking time, shows that this activity is subject to a public law regime.”
“24. The answer to the first question must therefore be that the letting of spaces for the parking of vehicles is an activity which, where it is carried on by a body governed by public law, is carried on by that body as a public authority within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive if it is carried on under a special legal regime applicable to bodies governed by public law. That is the case where the pursuit of the activity involves the use of public powers.”
“… the mere fact that a body governed by public law acts within the framework of a special legal regime and in accordance with powers conferred upon it by statute does not mean that engaging in its activities necessarily involves the exercise of rights and powers of public authority.”
“82. According to the case-law on the first subparagraph of Article 4(5) of the Sixth Directive, whose content correspond to that of the first subparagraph of Article 13(1) of Directive 2006/112, those provisions envisage the situation in which bodies governed by public law engage, as entities subject to public law, under the special regime applicable to them, in activities or transactions which may also be engaged in, in competition with them, by private individuals under a regime governed by private law or on the basis of administrative concessions. On the other hand, when those bodies governed by public law act under the same legal conditions as those that apply to private traders, they cannot be regarded as engaging in those activities or transactions ‘as public authorities’…”
“84. The fact, briefly alluded to by the Commission, that there are a large number of private operators in Europe, such as placement agencies, which supply staff under private law rules, is irrelevant in that respect. Indeed, that fact does not in the slightest demonstrate that the supply of staff to Euroregions or in the context of promoting occupational mobility referred to by the 2007 decree is engaged in by the bodies governed by public law at issue under the same legal conditions as those that apply to private traders rather than under the special legal regime applicable to them, and at the very most confirms that the activities engaged in by those bodies ‘as public authorities’ may be engaged in in competition with private individuals operating under a regime governed by private law.”
“86. In particular, that Member State emphasised that under the 2007 decree, as its wording shows, those supplies of staff are subject to specific conditions that do not apply to individuals and are intended, as regards the promotion of occupational mobility, to ensure that only supplies whose purpose is to enable an official to acquire knowledge and experience at a different public body can benefit from not being subject to VAT. 87. The Kingdom of the Netherlands has also explained that the supply of staff to Euroregions was not intended to meet a staffing requirement, but was purely an important means whereby the participating municipalities and provinces could cooperate within Euroregions and contribute to performing the public duties entrusted to those Euroregions.”
“Nevertheless, whilst the fact that the body in question has, under the applicable national law, powers conferred by public law is not decisive for the purposes of that classification, it does constitute, in so far as it is an essential characteristic specific to any public authority, a factor of definite importance in determining that the body must be classified as a body governed by public law.”
“30. It is only by way of derogation from that general rule that certain activities of an economic nature are not to be subjected to VAT. Such derogation is laid down by the first subparagraph of art 4(5) of the Sixth Directive, under which activities engaged in by a body governed by public law acting as a public authority are not to be subject to VAT. 31. That derogation covers principally activities engaged in by bodies governed by public law acting as public authorities, which, while fully economic in nature, are closely linked to the exercise of rights and powers of public authority. In those circumstances, the fact that such bodies are not subject to VAT on those activities does not potentially have an anti-competitive effect, inasmuch as they are generally engaged in exclusively, or almost exclusively, by the public sector. 32. However, even where those bodies carry on such activities in their capacity as public authorities, they are to be considered taxable persons, under the second and third subparagraphs of art 4(5) of the Sixth Directive, where their treatment as non-taxable persons would lead to significant distortions of competition or again if those activities, provided they are not carried out on such a small scale as to be negligible, are listed in Annex D to that directive. 33. A body governed by public law may, thus, be responsible, under national law, for carrying on certain activities of an essentially economic nature under the special legal regime applicable to them where those same activities can also be carried on in parallel by private operators, with the result that the treatment of that body as a non-taxable person may give rise to certain distortions of competition. 34. It is that undesirable result that the Community legislature sought to avoid by providing, in the third subparagraph of art 4(5) of the Sixth Directive, that the activities specifically listed in Annex D to that directive (telecommunications, the supply of water, gas, electricity and steam, the transport of goods, port and airport services and passenger transport, etc) are, ‘in any event’, unless they are negligible, to be subject to VAT, even when they are carried on by bodies governed by public law acting as public authorities. 35. In other words, the treatment of bodies governed by public law as non-taxable persons in respect of those activities is, unless such activities are negligible, presumed to lead to distortions of competition. It is thus clear from the wording of the third subparagraph of art 4(5) of the Sixth Directive that the treatment of those bodies as taxable persons results from the carrying-on, as such, of the activities listed in Annex D to that directive, irrespective of the question whether or not a particular body governed by public law faces competition at the level of the local market on which it carries on those same activities. 36. Furthermore, there may exist, on the national level, other activities of an essentially economic nature, not listed in Annex D to the Sixth Directive, the list of which may vary from one member state to another or from one economic sector to another, which are carried on in parallel both by bodies governed by public law in their capacity as public authorities and by private operators. 37. It is precisely to those activities that the second subparagraph of art 4(5) of the Sixth Directive applies, in providing that bodies governed by public law, even when they act as public authorities, are to be considered taxable persons where their treatment as non-taxable persons would lead to significant distortions of competition. 38. The second and the third subparagraphs of art 4(5) of the Sixth Directive are, consequently, closely linked since they pursue the same objective, namely the treatment of bodies governed by public law as taxable persons, even when they are acting as public authorities. Those subparagraphs are thus subject to the same logic, by which the Community legislature intended to limit the scope of the treatment of bodies governed by public law as non-taxable persons, so that the general rule stated in arts 2(1) and 4(1) and (2) of that directive, under which any activity of an economic nature is, in principle, to be subject to VAT, is observed. 39. Consequently, the second and third subparagraphs of art 4(5) of the Sixth Directive are to be interpreted as a whole. 40. It follows that the treatment of bodies governed by public law as taxable persons, either on the basis of the second subparagraph of art 4(5) of the Sixth Directive, or on that of the third subparagraph of that provision, results from the carrying-on, as such, of a given activity, irrespective of whether or not those bodies face competition at the level of the local market on which they engage in that activity.”
“44. Whilst it is true that the Sixth Directive provides for certain derogations which may interfere to some extent with the application of the principle of fiscal neutrality, like the derogation under the second subparagraph of art 4(5) of the Sixth Directive…, since that provision permits the treatment of bodies governed by public law as non-taxable persons provided that such treatment would only distort competition insignificantly, the fact remains that that derogation must be interpreted in such a way that the least possible damage is done to that principle.”
“46. …if those distortions are analysed by reference to the activity as such, irrespective of the conditions of competition prevailing on a given local market, compliance with the principle of fiscal neutrality is ensured, given that all bodies governed by public law are either taxable or non-taxable persons, the sole strain on that principle concerning only relations between those bodies and private operators, and that to the extent that the distortions of competition remain insignificant.”
“…[The] second subparagraph of art 4(5) of the Sixth Directive is to be interpreted as meaning that the significant distortions of competition, to which the treatment as non-taxable persons of bodies governed by private law acting as public authorities would lead, must be evaluated by reference to the activity in question, as such, without such evaluation relating to any local market in particular.”
“… liable, by itself, to discourage potential competitors from entering the market for the provision of off-street car-parking facilities.”
“63. It follows that the expression ‘would lead to’, for the purposes of the second subparagraph of art 4(5) of the Sixth Directive, encompasses not only actual competition, but also potential competition. 64. However, the purely theoretical possibility of a private operator entering the relevant market, which is not borne out by any matter of fact, or by any objective evidence or by any analysis of the market, cannot be assimilated to the existence of potential competition. To make such an assimilation, that possibility must be real, and not purely hypothetical. 65. Consequently, the reply to the second question must be that the expression ‘would lead to’ is, for the purposes of the second subparagraph of art 4(5) of the Sixth Directive, to be interpreted as encompassing not only actual competition, but also potential competition, provided that the possibility of a private operator entering the relevant market is real, and not purely hypothetical.”
“77. … The argument put forward by the local authorities concerned that bodies governed by public law should be subjected to VAT only in cases where the distortions of competition resulting from their treatment as non-taxable persons are material, or even exceptional, would create a fiscal situation in which a significant number of private operators effecting the same transactions as those carried out by those bodies would be treated differently from them in respect of the levying of VAT, which would constitute a significant impairment of the principle of fiscal neutrality.”
“…The situation is thus envisaged in which bodies governed by public law engage in activities which may also be engaged in, competitively, by private traders. The objective is to ensure that the latter are not put at a disadvantage because they are taxed while the former are not…”
“39. According to the Court’s case-law on that provision, first, what is envisaged here is the situation in which bodies governed by public law engage in activities which may also be engaged in, in competition with them, by private economic operators. The aim is to ensure that those private operators are not placed at a disadvantage because they are taxed while those bodies are not...”
“40. Secondly, that limitation of the rule that bodies governed by public law acting as public authorities are treated as non-taxable persons for VAT purposes is only a conditional limitation. Its application involves an assessment of economic circumstances… 41. Thirdly, the significant distortions of competition which treatment as non-taxable persons of bodies governed by public law acting as public authorities would lead to must be evaluated by reference to the activity in question, as such, without that evaluation relating to any particular market, and by reference not only to actual competition, but also to potential competition, provided that the possibility of a private operator entering the relevant market is real and not purely hypothetical… 42. The purely theoretical possibility of a private operator entering the relevant market, which is not borne out by any matter of fact, any objective evidence or any analysis of the market, cannot be assimilated to the existence of potential competition… 43. As follows from the wording of the second subparagraph of Article 13(1) of the VAT Directive and from the case-law on that provision, its application presupposes, first, that the activity in question is carried on in competition, actual or potential, with that carried on by private operators and, secondly, that the different treatment of those activities for VAT purposes leads to significant distortions of competition, which must be assessed having regard to economic circumstances. 44. It follows that the mere presence of private operators on a market, without account being taken of matters of fact, objective evidence or an analysis of the market, cannot demonstrate the existence either of actual or potential competition or of a significant distortion of competition.”
“58. It is necessary at the outset to state that it is the VAT exemption in itself which must not be liable to give rise to distortions of competition on a market in which competition will in any event be affected by the presence of an operator which provides services for its members and which is prohibited from seeking profits. It is thus the fact that the provision of services by a group is exempt, and not the fact that this group satisfies the other conditions of the provision in question, which must be liable to give rise to distortions of competition in order that this exemption may be refused. 59. As the Advocate General has stressed in point 131 of his Opinion, if, irrespective of any taxation or exemption, the groups are assured of keeping their members’ custom, there is no reason to take the view that it is the exemption granted them that closes the market to independent operators. 60. Moreover, it must be borne in mind that the aim of Article 13A of the Sixth Directive is to exempt from VAT certain activities which are in the public interest. That provision does not, however, provide exemption from the application of VAT for every activity performed in the public interest, but only for those activities which are listed and described in great detail in it… 61. It is, admittedly, true that it follows from the case-law cited in paragraph 36 of the present judgment that the terms used to designate the exemptions referred to in Article 13 of the Sixth Directive must be construed strictly. 62. It is, however, also no less true that it is not the purpose of that case-law to impose an interpretation which would make the exemptions set out in that provision more or less inapplicable in practice. 63. Consequently, although a comparative examination of the different language versions of Article 13A(1)(f) of the Sixth Directive shows that the expression ‘provided that such exemption is not likely to produce distortion of competition’ is not directed solely at distortions of competition which the exemption is likely to produce immediately but also at those to which it may give rise in the future, the risk that the exemption will by itself give rise to distortions of competition must none the less be real. 64. It follows that the grant of VAT exemption must be refused if there is a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition. 65. The answer to the second and third questions must therefore be that Article 13A(1)(f) of the Sixth Directive must be construed as meaning that the grant of VAT exemption under that provision to an association such as that in issue in the main proceedings and which satisfies all of the other conditions of that provision must be refused if there is a genuine risk that the exemption may by itself, immediately or in the future, give rise to distortions of competition.”
“… it is necessary to take into account the scheme and purpose of that directive, as well as the place of that provision in the common system of VAT established by it …”
“However, that cannot mean that the second subparagraph of Article 13(1) of the VAT Directive should be interpreted in such a way that the derogation from treatment as a taxable person for VAT laid down in the first subparagraph of Article 13(1) of the directive for bodies governed by public law acting as public authorities is deprived of effectiveness (see, to that effect, judgment of20 November 2003 , Taksatorringen, C-8/01, EU:C:2003:621, paragraphs 61 and 62, and of25 March 2010 , Commission v Netherlands, C-79/09, not published, EU:C:2010:171, paragraph 49).”
“83. Before leaving the case law, it is important to comment on the proper application of the numerous statements in the European cases, some of which are cited above, that the exemption in Article 13B(a), like the other exemptions in Article 13, should be interpreted strictly since it constitutes an exception to the general principle that turnover tax is levied on all services supplied for a consideration to a taxable person. As Advocate General Fennelly said, in paragraph 24 of his opinion in Card Protection (see[1999] STC 270 ,[1999] 2 AC 601 , para 24), this does not mean that a particularly narrow interpretation will be given to the terms of an exemption. As Chadwick LJ said in Expert Witness Institute v Customs and Excise Commissioners[2001] EWCA Civ 1882 ,[2002] STC 42 at paragraph [17], the Court is not required to give the words in the exemption the most restricted, or most narrow, meaning that can be given to them. I agree with his observation, in paragraph [17] of his judgment, that: ‘A ‘strict’ construction is not to be equated, in this context, with a restricted construction. The court must recognise that it is for a supplier, whose supplies would otherwise be taxable, to establish that it comes within the exemption, so that if the court is left in doubt whether a fair interpretation of the words of the exemption covers the supplies in question, the claim to the exemption must be rejected. But the court is not required to reject a claim which does come within a fair interpretation of the words of the exemption because there is another, more restricted, meaning of the words which would exclude the supplies in question.’” ‘A ‘strict’ construction is not to be equated, in this context, with a restricted construction. The court must recognise that it is for a supplier, whose supplies would otherwise be taxable, to establish that it comes within the exemption, so that if the court is left in doubt whether a fair interpretation of the words of the exemption covers the supplies in question, the claim to the exemption must be rejected. But the court is not required to reject a claim which does come within a fair interpretation of the words of the exemption because there is another, more restricted, meaning of the words which would exclude the supplies in question.’”
“52. In addition, the Court has also consistently held that it follows both from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the objective pursued by the legislation in question… 53. It must be noted that Article 13(1) of Directive 2006/112 makes no express reference to the law of the Member States. 54. It follows that the concepts referred to in that provision, including that of ‘other bodies governed by public law’, must be given an autonomous and uniform interpretation throughout the European Union.”
“… founded on the weak presumption that activities engaged in by public bodies as public authorities are activities of an essentially regulatory nature that are linked to the exercise of rights and powers of public authority. In those circumstances, the fact that the activities are not subject to VAT does not potentially have an anticompetitive effect vis-à-vis activities engaged in by the private sector, inasmuch as they are generally undertaken exclusively, or almost exclusively, by the public sector. Fiscal neutrality is thus observed.”
“31. That derogation covers principally activities engaged in by bodies governed by public law acting as public authorities, which, while fully economic in nature, are closely linked to the exercise of rights and powers of public authority. In those circumstances, the fact that such bodies are not subject to VAT on those activities does not potentially have an anti-competitive effect, inasmuch as they are generally engaged in exclusively, or almost exclusively, by the public sector.”
“…activities carried out by those bodies under the special legal regime applicable to them and do not include activities pursued by them under the same legal conditions as those that apply to private economic operators.”
“…the fact that the pursuit of the activity…involves the use of powers conferred by public law shows that that activity is subject to a public law regime.”
“71. In that context, the Court has stated that the exemption provided for in the first subparagraph of Article 13(1) of Directive 2006/112 covers principally activities engaged in by bodies governed by public law acting as public authorities, which, while fully economic in nature, are closely linked to the exercise of powers conferred by public law (judgment in Isle of Wight Council and Others, C-288/07, EU:C:2008:505, paragraph 31).”
“The origin of the power to issue guidance is to be found in the general enabling powers of section 2.”
“34. Mr Gordon, on behalf of Mind, submits that the interference is not “in accordance with the law” because not prescribed by a binding general law. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a “necessary ingredient flowing from a power of detention for treatment”… The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.”
“The requirement which the law lays down that those to whom the Code is addressed are expected to follow it unless they can give a good reason for not doing so provides a sufficient assurance of certainty and predictability to satisfy the requirements of article 8(2).”
“‘The law’, for article 8 purposes, does not consist only of statutes, directives, statutory codes and the like. It must include, also, the variety of duties and rights arising out of the circumstances in which individuals and institutions find themselves and their relationship with one another that are imposed by the common law.”
“50. It is also submitted on behalf of the Secretary of State, and I accept, that the executive must follow [the relevant policy] unless there are good grounds for not doing so. Further, and as Lord Dyson explained in Lumba, at para [66], a purported lawful authority to detain may be impugned either because the defendant has acted in excess of jurisdiction or because the jurisdiction has been wrongly exercised. Both species of error render an executive act ultra vires, unlawful and a nullity. There is in this context no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain, although authorised by the statute, was made in breach of a rule of public law.”
“There is no presumption of anti-competitive effect. It is necessary to show that the agreement has an appreciable effect on competition. Appreciable does not mean substantial; it means more than de minimis or insignificant. It must be demonstrated with a reasonable degree of probability that the agreement affects actual or potential competition to such an extent that negative effects on prices, output, innovation or the variety or quality of goods and services in the market can be expected… An effect on competition must be demonstrated by reference to the situation which would pertain on the market in the absence of the agreement or restriction in question: ‘the competition in question must be understood within the actual context in which it would occur in the absence of the agreement in dispute’... This requires a consideration of the appropriate counterfactual situation.”
“32. According to settled case law, the principle of fiscal neutrality precludes treating similar goods and supplies of services, which are thus in competition with each other, differently for VAT purposes ... 33. According to that description of the principle the similar nature of two supplies of services entails the consequence that they are in competition with each other. 34. Accordingly, the actual existence of competition between two supplies of services does not constitute an independent and additional condition for infringement of the principle of fiscal neutrality if the supplies in question are identical or similar from the point of view of the consumer and meet the same needs of the consumer… 35. That consideration is also valid as regards the existence of distortion of competition. The fact that two identical or similar supplies which meet the same needs are treated differently for the purposes of VAT gives rise, as a general rule, to a distortion of competition… 36. Having regard to the foregoing considerations, the answer to question 1(b) and (c) inCase C-259/10 is that the principle of fiscal neutrality must be interpreted as meaning that a difference in treatment for the purposes of VAT of two supplies of services which are identical or similar from the point of view of the consumer and meet the same needs of the consumer is sufficient to establish an infringement of that principle. Such an infringement thus does not require in addition that the actual existence of competition between the services in question or distortion of competition because of such difference in treatment be established.”
“44. Two supplies of services are therefore similar where they have similar characteristics and meet the same needs from the point of view of consumers, the test being whether their use is comparable, and where the differences between them do not have a significant influence on the decision of the average consumer to use one such service or the other…”
“Contrary to Mr Vajda’s submission [for HMRC], para 62 was not saying, and does not mean, that the treatment as a non-taxable person of a public authority carrying on a car-parking activity would be presumed to discourage potential competitors from entering the market. It was saying no more than that it may do so, with para 64 underlining that this sort of question is not a matter of presumption but is a matter of fact.”