The ECJ issued the facts and questions in the case C-785/23 (Bulgarian posts).
Article in the EU VAT Directive
Article 132(1)(a) of the EU VAT Directive 2006/112/EC
Article 132
1. Member States shall exempt the following transactions:
(a) the supply by the public postal services of services other than passenger transport and telecommunications services, and the supply of goods incidental thereto;
Facts
The applicant in cassation is the Directorate of ‘Disputes and Tax and Social Security Affairs’ in Sofia. The defendant in cassation is the company ‘Bulgarian Posts EAD’ (hereinafter: postal service). The postal service has an individual license to provide universal postal service services. During a tax audit, it was determined that the postal service has declared exempt transactions of the services provided that, according to the tax inspector, do not have the characteristics of universal postal services. The tax authority issued a tax assessment, against which the postal service appealed.
Consideration:
The postal service provides its services on the basis of individual agreements with users, rather than on the basis of the general provisions of the universal postal service agreement. The referring court therefore doubts whether these services fall within the definition of ‘services’ within the meaning of Article 132 of Directive 2006/112. The costs of the services offered are also lower than prices approved by the universal postal service, which causes the referring court to doubt, among other things, whether the postal service has the status of a universal postal service within the meaning of Article 12 of Directive 97/67.
Questions
1. Services provided by the license holder for the provision of the universal postal service in the territory of the Republic of Bulgaria under individual agreements with users of postal services shall be considered as services within the meaning of Article 132 [of] Title IX, Chapter 2 of Council Directive 2006/112/ЕG of 28 November 2006 on the common system of value added tax are provided by a ‘public postal service’ and ‘serve the general interest’, where those individual agreements provide that the performance must meet all the conditions below, namely: collection of the shipments outside the access points (collection and delivery take place at the client’s address); collection and delivery take place at a time agreed in advance with the clients; the frequency of collection and delivery is higher than the frequency regulated in the legally established rules for the quality of the universal postal service and the effectiveness of the services, with additional collection also taking place at the request of the client above the frequency expressly agreed in the agreement outside the opening hours of the post offices; provision of the service at a price lower than the prices approved by the Komisia za regulirane na saobshteniata (Communications Regulation Commission, the national regulatory body that approves prices for the universal postal service in Bulgaria; hereinafter “KRS”) or with higher discounts than the discounts approved by the KRS?
2. Follows from the second indent of Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market for postal services in the Community and the improvement of the quality of the service that the services provided by the license holder for the provision of the universal postal service do not have the quality of a universal postal service within the meaning of the Directive when these services are provided under an individual contract at a price lower than the price charged for the corresponding type of universal postal service approved price and it is not demonstrated that the price thus agreed covers the costs of the performance?
3. Does the fourth indent of Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market for postal services in the Community and the improvement of quality principle of transparency and non-discrimination enshrined in the service is violated when the license holder for the provision of the universal postal service concludes individual agreements for the provision of universal postal services in which these other and, compared to the published and generally accessible conditions, more favorable conditions for the provision of performance?
4. If this question is answered in the affirmative, it constitutes a reason for not treating the transactions as exempt from tax within the meaning of Article 132 of Council Directive 2006/112/EC of 28 November 2006 on the common system of added tax value to treat?
Similar ECJ Cases
- Roadtrip through ECJ Cases – Focus on ”Exemption for Public Postal Services” (Art. 132(1)(a))
- C-4/18 and C-5/18 (Winterhoff/Eisenbeis) – VAT exemption for public postal services for formal service of documents
- C-357/07 (TNT Post UK) – Concept of ‘public postal services’
- C-287/06 to C-292/06 Deutsche Post and others
- C-340/13 bpost
- C-256/17
Source
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