Finanzamt München Abteilung III v Dubrovin & Tröger GbR - Aquatics.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:873
• Docket Number: C-373/19
• Date: 21 October 2021
• Celex Number: 62019CJ0373
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

21 October 2021 (*)

(Reference for a preliminary ruling – Value added tax (VAT) – Directive 2006/112/EC – Article 132(1)(i) and (j) – Exemptions for certain activities in the public interest – Provision of children’s or young people’s education, school or university education – School or university education – Basic swimming tuition)

In Case C‑373/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 27 March 2019, received at the Court on 13 May 2019, in the proceedings

Finanzamt München III

v

Dubrovin & Tröger GbR – Aquatics,

THE COURT (Ninth Chamber),

composed of K. Jürimäe, President of the Third Chamber, acting as President of the Ninth Chamber, S. Rodin (Rapporteur) and N. Piçarra, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the German Government, by S. Eisenberg and J. Möller, acting as Agents,

– the European Commission, by N. Gossement and R. Pethke, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 132(1)(i) and (j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2 The request was made in the context of a dispute between the Finanzamt München Abteilung III (Munich Tax Office III, Germany) (‘the Tax Office’) and Dubrovin & Tröger – Aquatics (‘Dubrovin & Tröger’) concerning the refusal by the Tax Office to exempt from value added tax (VAT) the swimming tuition services provided by Dubrovin & Tröger.

Legal context

EU law

3 Title IX of Directive 2006/112, headed ‘Exemptions’, includes, inter alia, Chapter 2, relating to ‘Exemptions for certain activities in the public interest’, which contains Article 132 of that directive, paragraph 1 of which is worded as follows:

‘Member States shall exempt from tax the following transactions:

…

(i) the provision of children’s or young people’s education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the Member State concerned as having similar objects;

(j) tuition given privately by teachers and covering school or university education;

…’

German law

4 Under Paragraph 1(1) of the Umsatzsteuergesetz (Law on Turnover Tax) of 21 February 2005 (BGBl. 2005 I, p. 386), in the version applicable to the dispute in the main proceedings (‘the UStG’):

‘The following transactions shall be subject to value added tax:

‘1. supplies and other services which an undertaking performs for consideration on the domestic market in the course of its business. …

…’

5 Paragraph 4 of the UStG, entitled ‘Exemptions in respect of supplies of goods and services’, provides:

‘The following transactions covered by Paragraph 1(1)(1) of this law are exempt:

…

21. (a) the services of private schools and other general education or vocational training organisations directly serving the purpose of schooling and education,

(aa) where they are approved at federal level as alternative schools in accordance with Article 7(4) of the Grundgesetz [(Basic Law)] or are permitted under the law of the Land, or

(bb) where the competent authority of the Land certifies that they provide due preparation for a profession or for an examination to be taken before a legal person governed by public law.

(b) the tuition services of independent teachers directly serving the purpose of schooling and education

(aa) for universities within the meaning of Paragraphs 1 and 70 of the Hochschulrahmengesetz [(Framework Law on higher education)] and public general education or vocational training schools, or

(bb) for private schools and other general education or vocational training organisations, provided they satisfy the requirements set out under letter (a).

22. (a) lectures, courses and other activities of an academic or didactic nature provided by legal persons governed by public law, academies of administration or economics, adult education centres or bodies which serve the public good or the aims of a professional association, provided that the income is primarily used to cover costs,

(b) other cultural and sporting events organised by the commercial operators referred to in letter (a), provided that the remuneration takes the form of participation fees;

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

6 Dubrovin & Tröger runs a swimming school in the form of a civil-law partnership governed by ordinary law. In the context of its activities, it provides, essentially for children, courses of different levels relating the basics and techniques of swimming. On that basis, it takes the view that those services should be exempt from VAT.

7 Following a tax inspection relating to the years 2007 to 2011, proceeding on the basis that those services did not fall within the scope of the VAT exemptions provided for in Paragraph 4(21) and (22) of the UStG, the Tax Office issued, on 22 November 2011, 3 September 2012 and 12 August 2013, annual VAT assessment notices relating to those years.

8 Dubrovin & Tröger challenged those notices first by an objection and then, following the rejection thereof, by an action brought before the Finanzgericht (Finance Court, Germany).

9 While that action was pending, the Tax Office issued, on 21...