Stadion - CJEU confirms circumstances where different elements of a supply can be taxed at different rates

In Stadion Amsterdam CV v Staatssecretaris van Financiën C-463/16, the Court of Justice of the European Union (CJEU) has confirmed that, in the absence of specific statutory language to the contrary, a single supply, which includes two individually priced elements, is taxable at the rate of the principle supply.

Background

Stadion operates a multi-purpose building complex known as the Amsterdam Arena, which includes the museum of Ajax AFC. In addition to operating the venue as a football stadium, it hires the stadium out to third parties for sports competitions and, occasionally, for performances by performing artists. It also offers guided tours of the stadium for an admission charge, which includes a visit, without a guide, to the AFC Ajax museum for the combined price of €10. 

It was accepted by the parties that that tour was a single supply of services (the stadium tour and the museum entry). The issue was whether this single service should be taxed at the reduced or standard VAT rate.

If the supplies had been provided as separate services, different VAT rates would have applied - in the Netherlands, entrance to museums is taxed at a reduced rate of VAT (6%), while stadium tours are taxed at the standard VAT rate (21%). 

Stadion relied on the CJEU's judgments in Talacre Beach Caravan Sales Ltd C-251/05 and Commission v France C-94/09 ('French Undertakers') and argued that, as it was possible to identify a 'concrete and specific element' (the museum visit) of a single supply which, if supplied separately, would be subject to a different rate of VAT, then provided the price for each element was identifiable, each element should attract the applicable rate or VAT.

CJEU decision

The CJEU rejected Stadion's argument and confirmed that, in the absence of specific statutory language to the contrary, where there is a single composite supply then a single rate of VAT applies. 
 
In reaching its decision the CJEU accepted that there was clearly a single supply. To treat the supply otherwise would be to disregard recent CJEU case law and artificially split the supply (Bog and others C-479/09 and Baštová C-432/15). The fact that the price of each element could be easily identified, did not alter the analysis. To conclude otherwise would jeopardise the principle of fiscal neutrality as the VAT treatment would depend on whether a price apportionment was possible.

The CJEU noted that the Talacre Beach and French Undertakers cases involved specific and limited exceptions to the general principle. The relevant legislation in those cases had provided for a VAT treatment to "concrete and specific aspects" of a supply which overrode the application of the single rate of VAT to the particular supplies in question. There was no such exception in the present case.

The CJEU concluded that there was a single supply, comprised of two distinct elements, one principal (the stadium tour) and one ancillary (the museum visit) and accordingly it must be taxed at the rate of VAT based on the rate applicable to the principal element.
 
Comment

The CJEU's decision in this case is not surprising and helps clarify the confusion caused by the earlier decisions in relation to the scope of any exception to the requirement to apply a single rate of VAT to a single supply. 

The general rule remains that a single supply made up of several elements is taxable at the rate of the principal supply. The circumstances in which different elements of a supply can be taxed at different rates (as in Talacre Beach and French Undertakers) will be limited. 
 
A copy of the judgment can be viewed here.