Article in the EU VAT Directive
2(1), 13(1), 20, 90 and 138
Facts
- In the year at issue (2013), the applicant supplied, from the Netherlands, prescription-only medicinal products to Germany, to persons insured under the
statutory health insurance scheme, on the one hand, and to persons insured under private health insurance schemes, on the other hand. In both cases, it made payments (‘discounts’), referred to as compensation for participation, in exchange for answers to questions about the respective illnesses. - The applicant charged the statutory health insurance funds for the supplies to persons insured under a statutory health insurance scheme, and those supplies are the sole subject of the present dispute. The statutory health insurance funds paid on the basis of social security legislation. Since 1 October 2013, the applicant assumed, in relation to those supplies, that the place of supply was in the Netherlands, that it could benefit from tax exemption for intra-Community supplies there and that the statutory health insurance funds would be liable to pay tax on intra-Community acquisitions in the national territory. It also assumed that the discounts paid by it had reduced the taxable amount for VAT.
- The tax office did not share the applicant’s view and issued a tax assessment notice, against which the applicant filed an objection and brought an action,
without success. The applicant challenges the dismissal of its action by way of its appeal on a point of law, in which it asserts, in particular, that it is entitled to a tax adjustment on account of a reduction in remuneration in accordance with the judgment of the Court of Justice of 24 October 1996, Elida Gibbs (C-317/94, EU:C:1996:400)
Question
Based on the judgment of the Court of Justice of the European Union of 24 October 1996, Elida Gibbs, C-317/94 (EU:C:1996:400), is a pharmacy which supplies medicinal products to a statutory health insurance fund entitled to reduce the taxable amount as a result of a discount granted to the persons insured under a health insurance scheme?
In the event that this is answered in the affirmative: Is it contrary to the principles of neutrality and equal treatment in the internal market if a pharmacy in the national territory is able to reduce the taxable amount, but a pharmacy which supplies the statutory health insurance fund by means of an intra-Community, tax-exempt supply from another Member State is not able to do so?
Source
Referring case
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