In its ruling, the Supreme Court stipulates that EU member states, including the Netherlands, may introduce a reduced sales tax rate on deliveries of certain categories of products. Member States are free to selectively apply the reduced rate to certain specific goods or services. However, such a selection made by the national legislator may not conflict with the principle of fiscal neutrality.
BR>According to the Supreme Court, whether goods are similar must be assessed from the point of view of the average consumer, i.e. the consumer who is averagely informed and averagely attentive. This assessment concerns whether the goods in question are interchangeable for the average consumer. This is the case if the goods are comparable in terms of their properties and use, and if, moreover, their differences do not significantly influence the (purchase) choice of the average consumer for one or the other good. For interchangeable goods, a difference in sales tax rates could influence consumer choice, which would constitute a violation of the fiscal neutrality principle.
BR>It must therefore be assessed in the interested party’s case whether the different sales tax rate for the category ‘medicinal products’ and the category ‘pharmaceutical products’ is based on one or more differences that may be important for the average consumer when making his or her choice . That distinction must be apparent to the average consumer when making the purchase.
BR>According to the Supreme Court, the Court rightly ruled that the Medicines Act provides quality and control guarantees for registered, prescription or non-prescription medicines. This also applies to the Court’s judgments that, compared to the Medicines Act, the regulations for the interested party’s pharmaceutical products impose less stringent requirements on the marketing of medical devices, such as the interested party’s products, and that for such devices are subject to less strict quality and control guarantees. That these legal guarantees can meet different needs for the average consumer and that this distinction for this consumer when making a choice between a product with and a product without those guarantees,
BR>It must be assumed that registered medicines differ so much from medical devices that the distinction between these two categories will have a significant influence on the average consumer’s choice between comparable products, according to the Supreme Court. The Court therefore rightly and on good grounds decided that it cannot be said that the interested party’s products are interchangeable with registered medicines for the purpose of levying sales tax, even if these are available without a prescription. There is therefore no question of a violation of the fiscal neutrality principle. The Court’s ruling remains in effect.
Source: hogeraad.nl
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