Case C-31/10

Minerva Kulturreisen GmbH

v

Finanzamt Freital

(Reference for a preliminary ruling from the Bundesfinanzhof)

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

Summary of the Judgment

Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Special scheme for travel agencies

(Council Directive 77/388, Art. 26)

Article 26 of Sixth Council Directive 77/338 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.

That provision introduces an exception to the general rules on the taxable amount with respect to certain operations of travel agents and tour operators and, being an exception to the normal rules of the Sixth Directive, that article must be applied only to the extent necessary to achieve its objective.

The application of that special scheme to an activity by which the travel agent merely sells tickets for performances without providing a travel service would distort competition, in view of the fact that a given activity would be taxed differently according to whether or not the trader selling those tickets was a travel agent.

(see paras 16, 24-25, operative part)

JUDGMENT OF THE COURT (First Chamber)

9 December 2010 (*)

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

In Case C‑31/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Germany), made by decision of 10 December 2009, received at the Court on 20 January 2010, in the proceedings

Minerva Kulturreisen GmbH

v

Finanzamt Freital,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet (Rapporteur), M. Ilešič, E. Levits and M. Safjan, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Minerva Kulturreisen GmbH, by P. Fröhler, A. Kellner and B. Juschten,

–        the Finanzamt Freital, by V. Rummer,

–        the German Government, by J. Möller and C. Blaschke, acting as Agents,

–        the Greek Government, by K. Georgiadis, C. Poulakos and M. Tassopoulou, acting as Agents,

–        the Portuguese Government, by L. Inez Fernandes, acting as Agent,

–        the European Commission, by D. Triantafyllou, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This reference for a preliminary ruling concerns the interpretation of Article 26 of Sixth Council Directive 77/388/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 (OJ 1977 L 145, p. 1, ‘the Sixth Directive’).

2        The reference has been made in proceedings between Minerva Kulturreisen GmbH (‘Minerva’) and the Finanzamt Freital (‘the Finanzamt’), concerning the application of the special scheme for travel agents provided for in Article 26 of the Sixth Directive to the sale by a travel agent of opera tickets in isolation, without the provision of additional services.

 Legal context

 Community legislation

3        Under paragraphs 1 and 2 of Article 26 of the Sixth Directive, entitled ‘Special scheme for travel agents’, which is applicable ratione temporis to the dispute in the main proceedings:

‘1.      Member States shall apply value added tax [“VAT”] to the operations of travel agents in accordance with the provisions of this Article, where the travel agents deal with customers in their own name and use the supplies and services of other taxable persons in the provision of travel facilities. This Article shall not apply to travel agents who are acting only as intermediaries and accounting for tax in accordance with Article 11A(3)(c). In this Article travel agents include tour operators.

2.      All transactions performed by the travel agent in respect of a journey shall be treated as a single service supplied by the travel agent to the traveller. It 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 provided the services. The taxable amount and the price exclusive of tax, within the meaning of Article 22(3)(b), in respect of this service shall be the travel agent’s margin, that is to say, the difference between the total amount to be paid by the traveller, exclusive of [VAT], and the actual cost to the travel agent of supplies and services provided by other taxable persons where these transactions are for the direct benefit of the traveller.’

 National legislation

4        Paragraph 25 of the German Law of 1993 on turnover tax (Umsatzsteuergesetz 1993, BGBl. 1993 I, p. 565, ‘the UStG’) provides:

‘(1)      The following provisions shall apply to travel services provided by an undertaking that are not provided for the purposes of the customer’s business, where the undertaking deals with customers in its own name and makes use of travel-related inputs. The service provided by the undertaking is deemed to fall within the category of “other services”. … Travel-related inputs are supplies and other services provided by third parties which are for the direct benefit of the traveller.

(2)      …

(3)      The taxable value of other s