6.4.3 What is a ‘sample’

Under the current EU VAT rules, the supply of goods that are samples is explicitly excluded from taxation or adjustment of the deducted VAT.1 In the dictionary, a sample is defined as “a small part or quantity intended to show what the whole is like” or, more specifically, as “a small amount of a food or other commodity, especially one given to a prospective customer”.2 This implies that samples always represent goods and/or services that can be purchased from the business on whose behalf the samples are distributed. The CJEU confirms this by deciding that “in order to allow (…) goods to be assessed as ‘samples’, those goods must have all the essential qualities of the product which they represent, in its final form”.3

According to the CJEU, the distribution of samples is carried out in order to promote the product of which the samples are specimens, by allowing for the quality of that product to be assessed and for verification that the product has the qualities sought by a potential or actual buyer.4 Therefore, it may not be relevant whether samples are actually supplied for free to the potential or actual buyers of the product or to others, as long as the above objective is still pursued.5 This means that as long as the supply of samples free of charge serves the purpose of promoting the sales of the ‘underlying’ product it represents by enabling potential and actual buyers to assess the quality of that product or to verify that the product has the qualities they seek, the supply of these samples should not be taxed.

Because of the nature of samples, an element of personal or private consumption is often unavoidable. Due to the fact that the making available of specimens which correspond to the product represented in its final form is a necessary prerequisite for the process of assessment of these products, the supply of these samples is not taxed as a non-business application of the goods.6

Under this same rationale, the supply of more than one sample, or even the supply of a large number of samples, can still serve that purpose. An example could be the supply of a large number of copies of a music CD to a ‘plugger’ or to intermediaries.7 This depends, inter alia, on the nature of the product represented and on the use to which the recipients must put to the samples.8