“There shall be a Students’ Union of the University and Ordinances shall prescribe the constitution, functions, privileges and other matters relating to such Union.”
“OBJECTS & POWERS The Union's objects are the advancement of education of Students at Loughborough University, Loughborough College and the RNIS Vocational College (Loughborough) for the public benefit by: i) enriching and enhancing the educational experience of its members as people as well as intellects, and in particular to providing opportunities for members to develop their personal maturity, leadership, and communications and other skills. ii) acting as the principal body representing its members' views and interests within their institutions, to the local community and nationally. iii) enhancing the student community and student well being providing social, cultural. sporting and recreational activities and forums for discussions and debate. iv) to ensure that students experiencing problems with student life can get the support and help they need and seek to minimize the likelihood of these problems occurring.”
“To further its objects, but not to further any other purpose, the Union may: … (xiv) raise funds and invite and receive contributions from any person provided that the Union shall not carry out any taxable trading activities in raising funds … xxv) trade in the course of carrying out any of its objects …”
“ Exemptions for certain activities in the public interest Article 132 1. Member States shall exempt the following transactions: … ( i ) the provision of children's or young people's education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects; … Article 133 Member States may make the granting to bodies other than those governed by public law of each exemption provided for in points … (i), … of Article 132(1) subject in each individual case to one or more of the following conditions: (a) the bodies in question must not systematically aim to make a profit, and any surpluses nevertheless arising must not be distributed, but must be assigned to the continuance or improvement of the services supplied; (b) those bodies must 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; (c) those bodies must charge prices which are 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 VAT; (d) the exemptions must not be likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT. … Article 134 The supply of goods or services shall not be granted exemption, as provided for in points … (i), … of Article 132(1), in the following cases: (a) where the supply is not essential to the transactions exempted; (b) where the basic purpose of the supply is to obtain additional income for the body in question through transactions which are in direct competition with those of commercial enterprises subject to VAT.”
“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.”
“The respondents conceded that the union qualifies for the exemption so far as Notes 2(a) and 2(b) are concerned.”
“ 2.6 Schools, universities, colleges, etc Certain supplies of education, training and research are exempt from VAT. Where an educational institution provides exempt education to its own pupils and students, then the supply of catering they make is also exempt. If the supply of education is non-business, as in the case of a local authority school, free school or academy school, the supply of catering will also be non-business, provided it is made at, or below, cost. See Notice 701/30 Education and vocational training for more information. Whichever treatment is appropriate it applies to anything provided by way of catering. This includes food supplied at mealtimes and break times from the refectory, canteen or other similar outlet but not items purchased from a university campus shop, as they are not provided by way of catering. … You must account for VAT on supplies of catering to staff and visitors (except visiting students). If you are a student union, supplying catering both on behalf, and with the agreement, of the parent institution, you will need to read section 5.5. … 5.5 Catering provided by student unions in universities and other higher education establishments If you are a student union and you are supplying catering (including hot take-away food) to students both on behalf, and with the agreement, of the parent institution, as a concession you can treat your supplies in the same way as the parent institution itself. This means that you can treat your supplies as exempt when made by unions at universities, and other institutions supplying exempt education, and outside the scope of VAT when supplied at further education and sixth form colleges. This means that most supplies of food and drink made by the union, where the food is sold for consumption in the course of catering (see sections 2 and 3), will be exempt. For example, food and drink sold from canteens, refectories and other catering outlets (excluding bars), plus food and drink sold from vending machines situated in canteens and similar areas. However, it does not cover food and drink sold from campus shops, bars, tuck shops, other similar outlets and certain vending machines (see 2.4 above). Further the concession does not cover any other goods or services supplied by the student unions.”
“ Group 6 Item 4 Closely related supplies: goods and services that are not ‘closely related’ to supplies of education The following are examples of goods and services that are taxable in principle unless relief is available elsewhere. It is important to note that this is subject to the overriding principle that supplies of catering by an eligible body to its pupils, students or trainees are closely related: · supplies to staff (including tutors on summer schools) and to other non-students; · sales of goods from school shops, campus shops and student bars; · sales from vending machines - but see paragraph VATEDU52000; · sales of goods not needed for regular use in class; · separately charged laundry and other personal services; · sales of school uniforms and sports clothing; · admission charges (other than for taking part in sports activities) for example, admission to plays, concerts, dances, sporting venues, exhibitions, museums and zoos; · administration and management services; · commission for allowing sales by outside organisations at an educational establishment; and · sales by a sole proprietor or partnership in connection with private tuition. …”
“56. As regards, specifically, the first of the two conditions laid down in art 13(1) of that directive, namely the condition that the body be governed by public law, the court has already held that a person which, not being part of the public administration, independently performs acts falling within the powers of the public authority cannot be classified as a body governed by public law within the meaning of that provision (see to that effect, inter alia, order in Mihal [ Mihal v Danovy úrad Košice V (Case C-456/07 )], para 18 and the case law cited). 57. The court has also made it clear that the status as a 'body governed by public law' cannot stem from the mere fact that the activity at issue consists in the performance of acts falling within powers conferred by public law (see to that effect, inter alia, order in Mihal , para 17 and the case law cited). 58. 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.”
“35 Under point (i) of Article 132(1) of the VAT Directive, the supply of educational services referred to is, however, exempt only if those services are provided by educational bodies governed by public law or by other organisations recognised by the Member State concerned as having similar objects. It follows that other organisations, namely, private organisations, must fulfil the condition of pursuing objects similar to those of bodies governed by public law. It is thus clearly apparent from the wording of point (i) of Article 132(1) that it does not permit Member States to grant the supply of the educational services exemption to all private organisations providing such services, by including also those whose objects are not similar to those of bodies governed by public law. … 37 In so far as point (i) of Article 132(1) of the VAT Directive does not specify the conditions or procedures for defining those similar objects, it is, in principle, for the national law of each Member State to lay down the rules in accordance with which that definition may be granted to such organisations. The Member States have a discretion in that respect (see, to that effect, Kingscrest Associates and Montecello , paragraphs 49 and 51; and Zimmermann , paragraph 26). 38 Furthermore, it is for the national courts to examine whether the Member States, in imposing such conditions, have observed the limits of their discretion in applying the principles of European Union law, in particular the principle of equal treatment, which, in the field of VAT, takes the form of the principle of fiscal neutrality (see, to that effect, Kingscrest Associates and Montecello , paragraph 52; and L.u.P. , paragraph 48). … 50 … point (i) of Article 132(1) of the VAT Directive grants the Member States a certain discretion when defining private organisations which have objects similar to those of bodies governed by public law and which must therefore, in accordance with that article, be exempt from VAT. 51 The Court has, however, already held that the fact that that provision of the VAT Directive laying down an exemption grants the Member States a discretion to establish the beneficiaries thereof does not prevent that provision from being held to be sufficiently precise to be relied upon directly if, according to objective evidence, the supply at issue meets the criteria for that exemption (see, inter alia, JP Morgan Fleming Claverhouse Investment Trust and The Association of Investment Trust Companies , paragraphs 60 and 61 and case-law cited). 52 Likewise, where a Member State has exceeded its discretion by exempting supplies or taxable persons with regard to which such an exemption could not objectively be granted under that provision of the VAT Directive, the person concerned may rely directly on that provision so that that exemption is not applied to him. 53 It follows that it is only where the Member State has exceeded its discretion, by defining a taxable person as an organisation with objects similar to those of bodies governed by public law, that that taxable person may then rely on point (i) of Article 132(1) of the VAT Directive in order to contest national legislation and have its services made liable to VAT. 54 As was pointed out by the Advocate General in points 70 and 71 of her Opinion, it is for the national court to determine whether the exemption of services supplied by an organisation such as MDDP, in accordance with point (i) of Article 132(1) of the VAT Directive, exceeds the discretion granted to the Polish legislature. It is for that court to examine the object and conditions of MDDP’s activity by comparing them with those of Polish bodies governed by public law providing educational services. It follows from the Court’s answer to Question 1 that the mere fact that an organisation such as MDDP pursues commercial objects is not sufficient to preclude its having objects similar to those of bodies governed by public law and that its services may therefore be exempted in accordance with that provision. 55 If the national court were to find that the objects pursued by an organisation such as MDDP cannot be considered to be similar to those pursued by a body governed by public law, MDDP could rely on the fact that national law exempts, in infringement of point (i) of Article 132(1) of the VAT Directive, its professional educational and training services from VAT. In that case, its services would be subject to VAT and MDDP could then claim, to that extent, a right to deduct input VAT in accordance with Polish legislation.”
“( e ) a body which— (i) is precluded from distributing and does not distribute any profit it makes; and (ii) applies any profits made from supplies of a description within this Group to the continuance or improvement of such supplies;”
“[258] … [In Marleasing ] The ECJ held that the national court was required so far as possible under national law to interpret its national law so as to preclude a declaration of nullity in cases other than those prescribed in the directive. In other words, the national court was required to disapply provisions of its national law. [259] The ECJ helpfully commented on the Marleasing principle in Miret v Fondo de Garantía Salarial (Case C-334/92 )[1993] ECR I-6911 , para 20 of the judgment: '20. Thirdly, it should be borne in mind that when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned. As the Court held in its judgment in Case 106/89 Marleasing v La Comercial Internacional de Alimentación[1990] ECR I-4135 , paragraph 8, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.' [260] The obligation of our courts to interpret domestic legislation in conformity with Community law if it is possible to do so is a powerful one, requiring the court to go beyond what could be done by way of statutory interpretation where no question of Community law or human rights is involved: see R (IDT Card Services Ireland Ltd) v Customs and Excise[2006] EWCA Civ 29 ,[2006] STC 1252 ; Litster v Forth Dry Dock and Engineering Co Ltd [1989] [All ER 1134,[1990] 1 AC 546 . …”
“24. By its third question, which it is appropriate to examine before the second question owing to its close link to the first question, the national court is asking, essentially, whether art 13A(1)(m) of the Sixth Directive, read together with the first indent of para (2)(a) of that provision, is to be interpreted as meaning that an organisation may be categorised as 'non-profit-making' even if it systematically seeks to achieve surpluses which it then uses for the purposes of the provision of its services. 25. Whilst the Finnish and United Kingdom governments, and also the Commission, submit that the most important consideration is whether the organisation in question aims to make a profit and not the fact that it actually makes a profit, even if it does so habitually, the Netherlands government, on the other hand, contends that the VAT exemption should not be granted when profits are made systematically. In its submission, the exemption is applicable only where surpluses are achieved occasionally or merely incidentally. 26. On that point, it must be observed first of all that it is clear from art 13A(1)(m) of the Sixth Directive that an organisation is to be classed as being 'non-profit-making' for the purposes of that provision by having regard to the aim which the organisation pursues, that is to say that the organisation must not have the aim, unlike a 'commercial' undertaking, of achieving profits for its members (see, as regards the exemption provided for in art 13A(1)(n) of the Sixth Directive, the judgment given today in Customs and Excise Comrs v Zoological Society of London (Case C-267/00 )[2002] STC 521 , para 17). The fact that it is the aim of the organisation which is the test of eligibility for the VAT exemption is clearly borne out by most of the other language versions of art 13A(1)(m), in which it is explicit that the organisation in question must not have a profit-making aim (see besides the French version, the German version, 'Gewinnstreben', the Dutch version, 'winst oogmerk', the Italian version, 'senza scopo lucrativo' and the Spanish version, 'sin fin lucrativo'). 27. It is for the competent national authorities to determine whether, having regard to the objects of the organisation in question as defined in its constitution, and in the light of the specific facts of the case, an organisation satisfies the requirements enabling it to be categorised as a 'non-profit-making' organisation. 28. Where it is found that this is indeed the case, the fact that an organisation subsequently achieves profits, even if it seeks to make them or makes them systematically, will not affect the original categorisation of the organisation as long as those profits are not distributed to its members as profits. Clearly, art 13A(1)(m) of the Sixth Directive does not prohibit the organisations covered by that provision from finishing their accounting year with a positive balance. Otherwise, as the United Kingdom points out, such organisations would be unable to create reserves to pay for the maintenance of, and future improvements to, their facilities. 29. The referring court is also unsure whether this interpretation can be maintained in cases where the achievement of surpluses is systematically sought by an organisation. It refers in this regard to the first indent of art 13A(2)(a) of the Sixth Directive which would seem to suggest that the VAT exemption is to be disallowed where an organisation systematically seeks to make profits. 30. As far as that provision is concerned, it must be observed at the outset that it lays down an optional condition that the member states are at liberty to impose as an additional condition for the grant of certain exemptions set out in art 13A(1) of the Sixth Directive, amongst which figures the exemption covered by that same provision, under (m), which concerns the present case. The Netherlands legislature seems to require compliance with that optional condition before the benefit of that exemption can be granted. 31. As far as the interpretation of that optional condition is concerned, the Netherlands government maintains that the exemption must be refused where an organisation systematically seeks to achieve surpluses. The Finnish and United Kingdom governments, as well as the Commission, on the other hand, submit that systematic pursuit of profits is not of decisive importance where it is clear from both the circumstances of the case and the kind of activity actually carried on by an organisation that it is acting in accordance with the objects set out in its constitution and that these do not include any profit-making aim. 32. It must be observed, with regard to this point, that the first condition set out in the first indent of art 13A(2)(a) of the Sixth Directive, namely that the organisation in question must not systematically aim to make a profit, clearly refers, in the French version of that provision, to 'profit', whilst the two other conditions set out there, namely that no profits should be distributed and that any profits be assigned to the continuance or improvement of the services that supplied, refer, in the French text, to 'bénéfices'. 33. Although that distinction is not to be found in any of the other language versions of the Sixth Directive, it is borne out by the objective of the provisions contained in art 13A thereof. As the Advocate General points out in paras 57 to 61 of his opinion, it is not profits ('bénéfices'), in the sense of surpluses arising at the end of an accounting year, which preclude categorisation of an organisation as 'non-profit-making', but profit ('profit') in the sense of financial advantages for the organisation's members. Consequently, as the Commission also points out, the condition set out in the first indent of art 13A(2)(a) essentially replicates the criterion of non-profit-making organisation as contained in art 13A(1)(m). 34. The Netherlands government argues that such an interpretation does not take account of the fact that the first indent of art 13A(2)(a) must, as an additional condition, necessarily have a content extending beyond that of the basic provision. In response to that argument, it suffices to observe that that condition does not refer only to art 13A(1)(m) of the Sixth Directive but also to a large number of other compulsory exemptions which have a different content. 35. Consequently, the answer to be given to the third question must be that art 13A(1)(m) of the Sixth Directive is to be interpreted as meaning that an organisation may be categorised as 'non-profit-making' even if it systematically seeks to achieve surpluses which it then uses for the purposes of the provision of its services. The first part of the optional condition set out in the first indent of art 13A(2)(a) of the Sixth Directive is to be interpreted in the same way.”
“22. LIMITATION ON PRIVATE BENEFITS The income and property of the Union shall be applied solely towards the promotion of its objects. Except as provided below no part of the income and property of the Union may be paid or transferred directly or indirectly by way of dividend, bonus or otherwise by way of profit to any Member of the Union. This shall not prevent any payment in good faith by the Union of: (i) any payments made to any Member in their capacity as a beneficiary of the Union; (ii) reasonable and proper remuneration to any Member for any goods or services supplied to the Union provided that if such Member is a Trustee Paragraph 7c)iii shall apply; (iii) interest on money lent by any Member to the Union at a reasonable and proper rate; and (iv) any reasonable and proper rent for premises let by any Member to the Union.”
“20(1) In this Part a "students' union" means: (a) an association of the generality of students at an establishment to which this Part applies [that includes universities and further education colleges: s21] whose principal purposes include promoting the general interests of its members as students; or (b) a representative body (whether an association or not) whose principal purposes include representing the generality of students at an establishment to which this Part applies in academic, disciplinary or other matters relating to the government of the establishment.”
“LSU’s aims arc: A) To give students opportunities to organise and work on activities, which will develop their communication, leadership, teamwork and other personal skills and abilities, whilst offering them the training and support needed to succeed. B) Creating and promoting a good social, cultural and sporting life on campus in addition to providing services and facilities that makes the campus a pleasant place to live and work. C) Making sure that students views and interests ate properly taken into account by the three represented institutions, local community and nationally. D) Offering advice and practical help to students in the difficulties they face with student life. These objectives should be pursued without regard to age, race, gender, sexual orientation, disability, ethnic origin, religion or creed, independent of any party political organisation or religious body. The three represented institutions are Loughborough University, Loughborough College and The Royal National Institute of the Blind (R.N.I.B.) Vocational College. All currently registered students of these institutions, who have not exercised their rights to opt out, form the membership of the Union. More information about Loughborough Students Union can be found by visiting our website …”
“[16] The UT said that, in relation to the exemption for supplies closely related to education, the following are the principles to be derived from the case law: (1) As a general principle, the exemption must be construed so as to be consistent with its objective and so as to ensure its intended effect (see, for example, Skatteverket v PFC Clinic AB (Case C-91/12 )[2013] STC 1253 , para 23). (2) An especially narrow interpretation of the exception for activities closely related to a principal exempt supply of education is not appropriate, since the exemption is designed to ensure that the benefits of the principal supply are not hindered by the increased costs of providing it that would follow if the principal supply, or the closely related activities, were subject to VAT ( EC Commission v Federal Republic of Germany , para 47). (3) To be closely related to a principal exempt supply, the service in question must be an ancillary supply, that is one that does not constitute an end in itself, but is a means for better enjoying the principal service supplied ( Horizon College , paras 28 and 29). (4) The closely related supply must be essential to attain the objective of the principal supply (art 134(a)). In order to satisfy that requirement, the ancillary supply should be of a nature and quality such that, without it, there could be no assurance that the education from which the students benefit would have an equivalent value ( Horizon College , para 39). (5) There is no requirement that the closely related supply be made to the same recipients as the principal supply. To be services closely related to education it is not necessary for those services to be supplied directly to those students ( Horizon College , para 32).”
“4 The supply of any goods or services (other than examination services) which are closely related to a supply of a description falling within item 1 (the principal supply) by or to the eligible body making the principal supply provided— ( a ) the goods or services are for the direct use of the pupil, student or trainee (as the case may be) receiving the principal supply; and ( b ) where the supply is to the eligible body making the principal supply, it is made by another eligible body.”
“80. First, since the main service to which the supply in issue is closely related is the education provided, not by Horizon College itself but by the intermediary establishment, that education must itself meet the conditions for exemption pursuant to art 13A(1)(i). In particular, it must constitute 'children's or young people's education, school or university education, vocational training or retraining' and it must be 'provided by bodies governed by public law having such as their aim or by other organisations defined by the member state concerned as having similar objects'.”
“[28] On this basis the court found, at para 30, that the supply of a teacher by one educational establishment to another in order for the teacher temporarily to carry out teaching duties under the responsibility of the host establishment is an activity which can, in principle, be described as a supply of services closely related to education. Where there is a temporary shortage of teachers in some educational establishments, the making available of qualified teachers to those experiencing the shortage will enable students to better enjoy the education provided by the host establishments. [29] The court was not deflected from that conclusion by the fact that there was no direct relationship between Horizon College and the students of the host establishments, nor by the fact that the supply of teachers was an activity that was separate from the teaching provided by Horizon College on its own account (para 31). …”
“The LSU Shop is your local shop on the ground floor of the Students’ Union. We are open every day for your convenience, selling tasty & great value meal deals, snacks, confectionery, grocery, household & toiletries, fresh fruit & vegetables, fresh chilled and frozen food, a large range of Oriental food, soft drinks and alcohol. Not forgetting of course, all of the Loughborough University stash & memorabilia, stationery, newspapers & magazines, greetings cards and much more!”