“Without prejudice to other Community provisions, Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse: … ( m ) certain services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in sport or physical education; ( n ) certain cultural services and goods closely linked thereto supplied by bodies governed by public law or by other cultural bodies recognised by the Member State concerned; …”
“Member States may make the granting to bodies other than those governed by public law of each exemption provided for in 1 … ( m ) and ( n ) of this Article subject in each individual case to one or more of the following conditions: -they shall not systematically aim to make a profit, but any profits nevertheless arising shall not be distributed, but shall be assigned to the continuance or improvement of the services supplied, -they shall be managed and administered on an essentially voluntary basis by persons who have no direct or indirect interest, either themselves or through intermediaries, in the results of the activities concerned, -they shall charge prices approved by the public authorities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for similar services by commercial enterprises subject to value added tax, -exemption of the services concerned shall not be likely to create distortions of competition such as to place at a disadvantage commercial enterprises liable to value added tax.”
“Admissions to shows, theatres, circuses, fairs, amusement parks, concerts, museums, zoos, cinemas, exhibitions and similar cultural events and facilities.”
“2 The supply by an eligible body of a right of admission to- ( a ) a museum, gallery, art exhibition or zoo; or ( b ) a theatrical, musical or choreographic performance of a cultural nature. NOTES … (2) For the purposes of item 2 “eligible body” means any body (other than a public body) which- ( a ) is precluded from distributing, and does not distribute, any profit it makes; ( b ) applies any profits made from supplies of a description falling within item 2 to the continuance or improvement of the facilities made available by means of the supplies; and ( c ) is managed and administered on a voluntary basis by persons who have no direct or indirect financial interest in its activities.”
“[22] Consequently it would be incompatible with the binding effect given by Article 189 to directives to refuse in principle to allow persons concerned to invoke the obligation imposed by the directive. [23] Especially in cases where the Community authorities, by means of a directive, oblige member-States to adopt a specific course of action, the practical effectiveness of such a measure is weakened if individuals cannot invoke it before a court and national courts cannot take account of it as part of Community law. [24] Therefore a member-State which has not adopted, within the specified time limit, the implementation measures prescribed in the directive cannot raise the objection, as against individuals, that it has not fulfilled the obligations arising from the directive. [25] Consequently, in the absence of duly adopted implementing measures, individuals may invoke the provisions of a directive which, from the viewpoint of content, are unconditional and sufficiently precise, against all national legislation which does not conform with it. Individuals may also invoke those provisions if they lay down rights which can be enforced against the State.”
“16. It follows in particular that the concept of admissions to a cinema must be interpreted in accordance with the usual meaning of those words … 17. Furthermore, … the various events and facilities listed in the first paragraph of Category 7 in Annex H to the Sixth Directive have in particular the common feature that they are available to the public on prior payment of an admission fee giving all those who pay it the right collectively to enjoy the cultural and entertainment services characteristic of those events and facilities.”
"certaines prestations de services culturels, ainsi que les livraisons de biens qui leur sont etroitement liees, effectuees par des organismes de droit public ou par d'autres organismes culturels reconnus par I 'Etat membre concerne," "
“The exemption at issue in this case concerns 'services closely linked to sport or physical education supplied by non-profit-making organisations to persons taking part in sport or physical education (emphasis added) [by A-G]' (see art 13(A)(1)(m)). (I need scarcely point out that the Spanish government's argument to the effect that member states are free to determine the services which may benefit from an exemption, since art 13(A)(1)(m) provides only that ' certain services (emphasis added [by A-G])' are exempted, cannot be accepted. I do not believe that the Community legislature intended to confer such a wide discretion on member states. The term in question (' certain ') doubtless constitutes an unfortunate formulation of the provision, but it does not have the scope attributed to it in the Spanish government's defence; it simply means that not all services are to be exempted but merely those which, as the provision states, are 'supplied by non-profit-making organisations'. Moreover, since the latter constitutes the aim which justifies the grant of the exemption, the rule in question must in any event-in so far as it lays down the services to be exempted-be capable of pursuing that aim. As I shall explain below, that is not the case here.) The services in question must therefore benefit in any event from the exemption provided for. It is precisely in that respect that the Spanish legislation does not comply with the rule in question.”
“14. The Spanish government then argues, concerning the exemption of supplies of services referred to in art 13A(1)(m), that, unlike other exemptions envisaged by that provision, letter (m) provides for the exemption of 'certain' supplies of services. In its submission, that permits member states to limit the scope of art 13A(1)(m), not only by expressly excluding certain services provided by sports establishments from the exemption, but also by applying 'other criteria', such as the amount of the consideration for the services in question. 15. On that point, it is clear from art 13A(1)(m) of the Sixth Directive that the exemption in question concerns supplies of services closely linked to sport or physical education provided by non-profit-making bodies. … 18. Moreover, there is nothing in that provision to the effect that a member state, when granting an exemption for a certain supply of services closely linked to sport or physical education provided by non-profit-making bodies, may make that exemption subject to any conditions other than those laid down in art 13A(2).”
“… the court defined the following limit: the criteria which the member states use must not affect the substantive scope of the exemption by resulting in certain cultural services being excluded from the VAT exemption.”
“36. By its second question, the national court is asking whether the member states may limit the scheme of the exemption under art 13A(1)(m) of the Sixth Directive to services supplied only to individuals taking part in sport. 37. The United Kingdom government submits that the member states are free to limit the scope of the exemption to supplies of services which are provided to individuals, since art 13A(1)(m) of the Sixth Directive requires the exemption only of ' certain services closely linked to sport' (emphasis added [by Court]). 38. In that regard, the different categories of activities which are to be exempted from VAT, those which may be exempted by the member states and those which may not, as well as the conditions to which the activities eligible for exemption may be made subject by the member states, are specifically defined by the content of art 13A of the Sixth Directive (see [Hoffmann] para 38). 39. The possible restrictions on the benefit of the exemptions provided for by art 13A of the Sixth Directive may be imposed only in the context of the application of para 2 of that provision (see Hoffmann , para 39). Thus, when a member state accords an exemption for certain services closely linked to sport or physical education supplied by non-profit-making organisations, it may not make that exemption subject to conditions other than those laid down in art 13A(2) of the Sixth Directive (see [ Commission v Spain] para 18). Since that provision does not lay down restrictions as regards recipients of the services in question, the member states have no power to exclude a certain group of recipients of those services from the benefit of the exemption in question. 40. Therefore, the reply to the second question referred must be that the expression 'certain services closely linked to sport', in art 13A(1)(m) of the Sixth Directive, does not allow the member states to limit the exemption under that provision by reference to the recipients of the services in question.”
“[Counsel for HMRC accepted that HMRC] had had an obligation after1 January 1990 to exempt some supplies of cultural services but submitted that the Appellant could not rely upon the provisions of art 13A 1(n) as being directly effective because that Article was neither sufficiently precise nor unconditional within the meaning of para 25 of the judgment of the European Court of Justice in [ Becker ]. Article 13A 1(n) was not precise because it referred to "certain cultural services" supplied by "bodies recognised by the Member State concerned"; these matters were left to Member States to decide and, until they so decided, the Article was not sufficiently precise to be enforced by national courts. Article 13A 1(n) was not unconditional because art 13A 2(a) allowed Member States to impose conditions. [Counsel for HMRC] submitted that, for the same reason, the Appellant was not entitled to rely upon art 13A 1(n) alone as being directly effective between the dates of1 January 1990 and31 May 1996 . In any event, the right of taxable persons to claim tax paid from1 January 1990 to31 May 1996 was an extra-statutory concession which had been introduced to recognise that Group 13 should have been introduced in 1990.”
“.. art 13A 1(n) does refer to "certain cultural services" which are not defined and to "bodies recognised by the Member State concerned" and thus it is, in my view, not sufficiently precise to be enforced by a national court. Also, as art 13A 2(a) is not mandatory but discretionary it may not be relied upon by the Appellant. Accordingly, whatever other remedies are available to a taxable person against a Member State which fails to implement a Directive, art 13A 1(n) and art 13A 2(a) are not, in my view, directly effective and cannot be relied upon by the Appellant. … The final issue in the appeal was whether the Appellant could rely upon art 13A 1(n) alone as being directly effective so as to give the Appellant exemption between the dates of1 January 1990 and31 May 1996 . It will be clear from what I have said about the second issue that I do not consider that art 13A 1(n) is directly effective as it is not sufficiently precise.”
“…whilst Member States must grant exemption to cultural activities (as the United Kingdom has in Group 13 of Schedule 9), it is left to the Member States to determine which cultural activities within its territory shall be exempt. We accordingly have to decide whether Trebah Garden falls within any of the descriptions in item 2 of Group 13 (which do not include a botanical garden) construed as a matter of United Kingdom domestic legislation, with little assistance to be obtained from the Directive.”
“Insofar as we are influenced by anything in this case other than what we think is the plain ordinary meaning of the statutory phrase, we are very influenced by several factors connected with the interplay between [the Sixth Directive], and in particular [Annex H], and the choice of words adopted in the domestic legislation. The European Directive required the Member States to enact that "certain" cultural services were to be made exempt services for VAT purposes, but it left the States with a discretion as to which services to select. Manifestly the supply of cinema films was one of the services included in the Annex, along with the services rendered at circuses, fairs and in amusement arcades, that the Member States could include in their domestic provisions, treating them as exempt cultural services. And equally clearly the Member States had a choice here and could choose which of the services to include. Much the strongest inference to be drawn from this background is that the UK chose deliberately to include various of the services, but it chose to ignore and leave out the services at circuses, fairs, amusement arcades and cinemas. When cinemas were specifically mentioned in the Annex, but were not specifically included in the domestic legislation, but three expressions which were not naturally apt to apply to cinemas (or for that matter amusement arcades) were adopted in the domestic legislation, we think that much the most obvious construction is to assume that these other services were deliberately omitted. The phrase "theatre and cinema" is after all a natural phrase. It might often be included in the list of a person's interests. So when the phrase draws a distinction between theatre and cinema, and when the draftsman of the UK legislation has omitted "cinema" and three other types of service that were specifically referred to in the relevant Annex, we repeat that the natural inference is that cinema was deliberately excluded. To say moreover that it was implicitly included and clear words such as "other than cinema" would have been needed to exclude it seems again to be untenable. Accordingly we conclude that cinema was deliberately left off the list of cultural services that were to be given exempt status, and we find this very supportive of our purely linguistic interpretation set out above.”
“[Counsel for the taxpayer] sought support from the legislative history as showing what the Directive is getting at in referring to certain cultural activities. The Proposal for a Sixth Directive provided for an exemption of "the supply of services by theatres, cinema-clubs, concert halls, museums, libraries, public parks, botanical or zoological gardens, educational exhibitions, and operations within the framework of activities in the public interest of a social, cultural or educational nature, by - bodies governed by public law; or - non-profit making organisations; or - private charitable organisations." But, as Terra and Kajus remark in their Commentary on the Sixth Directive, the text that was finally adopted bears hardly any resemblance to the Proposal because it would appear that the Member States could not agree on a precise [list] of cultural activities.”
“14. The Spanish government then argues, concerning the exemption of supplies of services referred to in art 13A(1)(m), that, unlike other exemptions envisaged by that provision, letter (m) provides for the exemption of 'certain' supplies of services. In its submission, that permits member states to limit the scope of art 13A(1)(m), not only by expressly excluding certain services provided by sports establishments from the exemption, but also by applying 'other criteria', such as the amount of the consideration for the services in question. 15. On that point, it is clear from art 13A(1)(m) of the Sixth Directive that the exemption in question concerns supplies of services closely linked to sport or physical education provided by non-profit-making bodies. 16. It is undisputed that, under the Spanish legislation, the exemption envisaged under art 13A(1)(m) of the Sixth Directive is granted only to private sports bodies or establishments of a social nature which charge membership fees not exceeding certain amounts. 17. To apply the criterion of the amount of membership fees may lead to results contrary to art 13A(1)(m). As the Advocate General has pointed out at para 5 of his opinion, to apply such a criterion may result, first, in a non-profit-making body being excluded from the benefit of the exemption provided for by the provision and, secondly, in a profit-making body being able to benefit from it. 18. Moreover, there is nothing in that provision to the effect that a member state, when granting an exemption for a certain supply of services closely linked to sport or physical education provided by non-profit-making bodies, may make that exemption subject to any conditions other than those laid down in art 13A(2). 19. It follows that the limitation of the exemption for supplies of services closely linked to sport or physical education to private sports bodies or establishments of a social nature whose membership fees do not exceed a certain amount is contrary to art 13A(1)(m) of the Sixth Directive.”
“At the present stage, the Respondents do no more than submit that there is a prima facie case that the Appellant would be unjustly enriched if credited with any VAT found to be overpaid (see paragraphs 40-42, 44-45 & 51 of the recent decision of Sir Stephen Oliver in British Association of Leisure Parks, Piers & Attractions v RCC[2011] UKFTT 662 (TC) ”
“… the various events and facilities listed in the first paragraph of Category 7 in Annex H to the Sixth Directive have in particular the common feature that they are available to the public on prior payment of an admission fee giving all those who pay it the right collectively to enjoy the cultural and entertainment services characteristic of those events and facilities.”
“…the different categories of activities which are to be exempted from VAT, those which may be exempted by the member states and those which may not, as well as the conditions to which the activities eligible for exemption may be made subject by the member states, are specifically defined by the content of art 13A of the Sixth Directive (see [Hoffmann] para 38). The possible restrictions on the benefit of the exemptions provided for by art 13A of the Sixth Directive may be imposed only in the context of the application of para 2 of that provision (see Hoffmann , para 39). …”
“Moreover, there is nothing in [art 13A(1)(m)] to the effect that a member state, when granting an exemption for a certain supply of services closely linked to sport or physical education provided by non-profit-making bodies, may make that exemption subject to any conditions other than those laid down in art 13A(2).”
“I need scarcely point out that the Spanish government's argument to the effect that member states are free to determine the services which may benefit from an exemption, since art 13(A)(1)(m) provides only that ' certain services (emphasis added [by A-G])' are exempted, cannot be accepted. I do not believe that the Community legislature intended to confer such a wide discretion on member states. The term in question (' certain ') doubtless constitutes an unfortunate formulation of the provision, but it does not have the scope attributed to it in the Spanish government's defence; it simply means that not all services are to be exempted but merely those which, as the provision states, are 'supplied by non-profit-making organisations'. Moreover, since the latter constitutes the aim which justifies the grant of the exemption, the rule in question must in any event-in so far as it lays down the services to be exempted-be capable of pursuing that aim.”
“37. In that regard, it must be observed that the heading of art 13A of the Sixth Directive, the wording of which is 'Exemptions for certain activities in the public interest', does not, of itself, entail restrictions on the possibilities of exemption provided for by that provision. 38. First, the activities which are to be exempted from VAT, those which may be exempted by the member states and those which may not, as well as the conditions to which the activities eligible for exemption may be made subject by the member states, are specifically defined by the content of art 13A of the Sixth Directive. Second, as is confirmed by para 2(a) of that article, which authorises, but does not oblige, the member states to restrict exemption to bodies other than public law bodies which do not have a systematic profit-making aim, the commercial nature of an activity does not preclude it from being, in the context of art 13A of the Sixth Directive, an activity in the public interest. 39. The possible restrictions on the benefit of the exemptions provided for by art 13A of the Sixth Directive may be imposed, as is pointed out at paras 28 and 29 of this judgment, only in the context of the application of para 2 of that provision. 40. The reply to the second question must therefore be that the heading of art 13A of the Sixth Directive does not, of itself, entail restrictions on the possibilities of exemption provided for by that provision.”
“Article [13A] is somewhat paradoxical in that having directed that Member States “shall exempt” the following supplies subparagraph (n) and some of the other subparagraphs, by referring to “certain services”, appears to leave it to the Member States to decide precisely which such services are to be exempted.”