9.8.2 CJEU case law about vouchers and a VAT exemption

In the second half of 2012, two national courts in different EU Member States referred questions concerning the applicability of a ‘financial VAT exemption’ to transactions regarding vouchers to the CJEU for a preliminary ruling.

The first question was referred by a Luxembourg court, which asked for it to be removed from the CJEU’s register only three months after making the referral.1 The case concerned a company that is involved in transactions concerning (luncheon) vouchers by selling them to companies without own cafeterias to provide to their staff, who can use the vouchers to pay for luncheons in restaurants. The company involved reimburses these restaurants for the vouchers they accept and charges a commission for that. The following question was referred to the CJEU: “Are services carried out by an organisation issuing luncheon vouchers (…) for a restaurateur who is a member of its acceptance network exempt, either in full or in part, from VAT pursuant to Article 13B(d)(3) of the Sixth Council Directive (…), if a luncheon voucher is not a fully-fledged financial security and those services are not intended to guarantee payment for a meal purchased by an employee of the business customer (ibid. Article 13B(d)(2)), in the case of luncheon vouchers allocated by an employer to its employees (…), given that membership of a luncheon vouchers network allows a member to profit from the custom of employees of the business customers of the luncheon voucher operator and that that operator is paying the processing costs for those luncheon vouchers?”.2 In this case, the business that issues the voucher is not the one that holds the obligation to accept it in return for its supplies.

A Dutch court referred the second question.3 This case concerns a company that sells vouchers to people who can use these vouchers for different purposes. They can, for example, use them to get a better deal (two for the price of one, four for the price of two) or “to not have to pay the full price for certain goods or services”. Even though this company has contracts with the businesses accepting these vouchers, no payments are ever made by the company to these businesses or vice versa. The business keeps all the money it makes from the sales of the vouchers. For the businesses that accept the vouchers, this is a form of business promotion to increase their turnover. The Dutch court referred the following questions to the CJEU:

“1. Should the expression 'other securities' in Article 135(1)(f) of the EU VAT Directive be interpreted as covering a Granton card, being a transferable card which is used for the (partial) payment for goods and services, and if so, is the issuing and sale of such a card therefore exempt from the levying of turnover tax?

2. If not, should the expression 'other negotiable instruments' in Article 135(1)(d) of the EU VAT Directive be interpreted as covering a Granton card, being a transferable card which is used for the (partial) payment for goods and services, and if so, is the issuing and sale of such a card therefore exempt from the levying of turnover tax?

3. If a Granton card is an 'other security' or 'other negotiable instrument' in the aforementioned sense, is it important for the question of whether the issuing and sale thereof is exempt from the levying of turnover tax that, when that card is used, a levy on (a proportionate part of) the fee paid for it is, for all practical purposes, illusory?”.4 As in the previous case, the issuer of the voucher in this case is not the one that holds the obligation to accept it in return for its supplies.

The CJEU ruled that the sale of a discount card, such as that at issue in the main proceedings, does not constitute a transaction in ‘other securities’ or concerning ‘other negotiable instruments’, within the meaning, respectively, of paragraphs 5 and 3 of Article 135 of the EU VAT Directive. This means that Member States must not apply the exemption provided for in that provision to the transactions involving these vouchers.5