Action brought on 18 September 2013 – European Commission v Grand-Duchy of Luxembourg
(Case C-502/13)
Language of the case: French
Parties
Applicant: European Commission (represented by: F. Dintilhac, C. Soulay, acting as Agents)
Defendant: Grand-Duchy of Luxembourg
Form of order sought
declare that, by applying a VAT rate of 3% to digital books (or electronic books), the Grand-Duchy of Luxembourg failed to fufil its obligations under Articles 96 to 99, 110 and 114 of the VAT directive, 1 read in conjunction with Annexes II and III to that directive and its implementing regulation, 2
order Grand-Duchy of Luxembourg to pay the costs.
Pleas in law and main arguments
The Commission raises a single plea in law in support of its action, alleging that, by subjecting the supply of electronic books to a super-reduced rate of 3% from 1 January 2012, the national legislation is not compatible with the VAT directive.
According to the Commission, the application of a reduced rate of VAT is incompatible with the wording of Articles 96 and 98 of the VAT directive, in so far as such a rate may be applied only to the supplies of goods and services referred to in Annex III to that directive. In the absence of express mention of the supply of digital books in that annex, the latter may not enjoy a reduced rate of VAT. That is moreover confirmed by the wording of the second subparagraph of Article 98(2), which explicitly excludes electronically supplied services from the benefit of reduced rates of VAT, and by the adoption by the VAT Committee of guidelines according to which reduced rates of VAT do not apply to the supply of digital books.
The Commission considers also that the reduced rate of 3%, that is to say a rate which is below the minimum rate of 5% fixed by Article 99 of the VAT directive, to the supply of digital books, may not be covered by the exception provided for by Article 110 of the VAT directive, or in accordance with Article 114 of that directive.
________________________1 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).
2 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for the VAT directive (OJ 2011 L 77, p. 1).