Flashback on ECJ Cases – C-31/10 (Minerva Kulturreisen) – TOMS does not apply to the individual sale of opera tickets by a travel agent without a travel service being provided

On December 9, 2010, the ECJ issued its decision in the case C-31/10 (Minerva Kulturreisen).

Context: Sixth VAT Directive – Article 26 – Special scheme for travel agents and tour operators – Scope – Sale of opera tickets without the provision of supplementary services

Article in the EU VAT Directive

Article 26 of the Sixth VAT Directive (Article 306 and 307 of the EU VAT Directive 2006/112/EC).

Article 306 (Special scheme for travel agents)
1. Member States shall apply a special VAT scheme, in accordance with this Chapter, to transactions carried out by travel agents who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities.
This special scheme shall not apply to travel agents where they act solely as intermediaries and to whom point (c) of the first paragraph of Article 79 applies for the purposes of calculating the taxable amount.
2. For the purposes of this Chapter, tour operators shall be regarded as travel agents.

Article 307
Transactions made, in accordance with the conditions laid down in Article 306, by the travel agent in respect of a journey shall be regarded as a single service supplied by the travel agent to the traveller.
The single service shall be taxable in the Member State in which the travel agent has established his business or has a fixed establishment from which the travel agent has carried out the supply of services.

Facts

Minerva is a travel agent. Amongst other activities in the period 1993 to 1998, it purchased tickets for the Saxon State Opera in Dresden (Semperoper) and sold them in its own name and on its own account to final customers and travel agents, either in conjunction with other services which it provided – namely services such as accommodation, city tours, shuttle services or catering services – or without them.
Minerva considered that the proceeds from the isolated sale of such tickets for performances were also subject to taxation of margins as provided for in Paragraph 25 of the UStG. However, when Minvera was taxed on that activity, that tax scheme was not applied to it.
The Finanzamt rejected the complaint filed by Minerva against the notices of assessment to tax dated 28 September 2000 for the years 1993 to 1997 and the notice of assessment to tax of 27 March 2001 for the year 1998 on the ground that, by merely purchasing and selling tickets for performances, Minerva is not performing a service ‘in respect of a journey’ and that, consequently, its activities cannot be distinguished from those of commercial ticket sellers.
By judgment of 11 February 2008, the Sächsisches Finanzgericht (Finance Court, Saxony) espoused the position of the Finanzamt and accordingly dismissed Minerva’s action contesting the Finanzamt’s decision rejecting its complaint.
Minerva appealed on a point of law (‘Revision’) against that judgment to the referring court. The only point outstanding before that court is whether the sale of tickets to final customers without the provision of additional services is subject to taxation of the applicant’s margin under Paragraph 25 of the UStG.
In support of its appeal, Minerva submits that the sale by a travel agent of tickets for events should be treated as a ‘travel service’ for the purposes of Paragraph 25 of the UStG because, according to Minerva, the sale of those tickets amounts to a service forming part of its portfolio of different travel options and travel services.
Having regard to the judgment in Case C‑163/91 Van Ginkel [1992] ECR I‑5723, the referring court asks whether a travel agent which acted in its own name can be subject to taxation on margins within the meaning of Article 26 of the Sixth Directive in respect of proceeds made on the sale of tickets for performances, or whether, in order to be treated under that tax scheme, it is necessary for the individual service to comprise one of the core services provided by the traders to which that provision applies.

Questions

Does the “special scheme for travel agents” provided for in Article 26 of [the Sixth Directive] apply also to the sale by a travel agent of opera tickets in isolation, without the provision of additional services?

AG Opinion

None

Decision

Article 26 of Sixth Council Directive 77/338/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, is to be interpreted as not applying to the sale by a travel agent of opera tickets in isolation, without the provision of a travel service.

Summary

Sale of opera tickets without additional services – Special arrangement for travel agencies and tour operators

Article 26 of the Sixth Directive must be interpreted as not applying to the individual sale of opera tickets by a travel agent without a travel service being provided.

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