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D1. For consideration
(direct & immediate link)
- Supplies of goods rather than consideration that are subject to VAT
"[17] It must be borne in mind that, under Article 2(1) of the Sixth Directive, a supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such is subject to VAT. That is why it is necessary in every case to consider which party supplied the goods or services and which party provided the consideration. It is supplies of goods or services which are subject to VAT, rather than payments made by way of consideration for such supplies." (Cantor Fitzgerald C-108/99)
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Non-monetary consideration​
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- Must have a subjective value that is actually received and capable of expression in money
"[27]...Such a direct link exists only if there is a legal relationship between the supplier and the purchaser entailing reciprocal performance, the price received by the supplier constituting the value actually given in return for the goods supplied. Further, that consideration must have a subjective value that is actually received and is capable of being expressed in monetary terms (judgment of 13 June 2018, Gmina Wrocław, C‑665/16, EU:C:2018:431, paragraph 43 and the case-law cited)." (WEG C-449/19)
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Non-monetary consideration​
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- Barter transactions economically identical to transactions for money
"Furthermore, the Court has held previously that barter contracts, under which the consideration is by definition in kind, and transactions for which the consideration is in money are, economically and commercially speaking, two identical situations (see, to that effect, Case C‑330/95 Goldsmiths [1997] ECR I‑3801, paragraphs 23 and 25)." (Orfey Balgaria EOOD C-549/11)
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Cases where supply is making opportunity available irrespective of whether it is taken up​
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- Provision of right of access to golf club is supply for consideration irrespective of whether the member attends
"[40] As the Commission argues, the fact that in the case before the national court the annual subscription fee is a fixed sum which cannot be related to each personal use of the golf course does not alter the fact that there is reciprocal performance between the members of a sports association such as that concerned in the main proceedings and the association itself. The services provided by the association are constituted by the making available to its members, on a permanent basis, of sports facilities and the associated advantages and not by particular services provided at the members' request. There is therefore a direct link between the annual subscription fees paid by members of a sports association such as that concerned in the main proceedings and the services which it provides." (Kennemer Golf C-174/00)
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Mandatory requirement to apply part of consideration in particular way
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- Sum to be paid as winnings on gambling which is fixed in advance and mandatory does not form part of consideration
"[44] In that regard, the Court held, in paragraph 28 of the judgment of 19 July 2012, International Bingo Technology (C‑377/11, EU:C:2012:503), concerning a legal requirement for the payment of winnings in a bingo game, that since the part of the sale price of the cards which is distributed as winnings to players is fixed in advance and is mandatory, it cannot be regarded as forming part of the consideration received by the organiser of the game for the supply of the service provided to players." (Boehringer C-462/16)​
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Partnerships, consortia and costs sharing
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- Query whether statutory 'reimbursement' to paying insurers by supplier means consideration not received or is reduction
"[43] Moreover, as regards the discount at issue in the main proceedings, it must be held that that discount is fixed by the law and that the pharmaceutical company is obliged to grant it to private health insurance companies which have reimbursed the persons they insure for the expenses incurred by those persons when purchasing medicinal products. As has been stated in paragraph 35 above, in those circumstances, the pharmaceutical company was not able freely to dispose of the full amount of the price received on the sale of its products to pharmacies or to wholesalers (see, to that effect, the judgment of 19 July 2012, International Bingo Technology, C‑377/11, EU:C:2012:503, paragraph 31)." (Boehringer C-462/16)​
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- Consortium member performing its share of operations under agreement (not for consideration)
​"[88] Consequently, operations such as those at issue in the main proceedings, carried out by the members of a consortium in accordance with the provisions of a consortium contract and corresponding to the share assigned to each of them in that contract, do not constitute supplies of goods or services ‘effected for consideration’ within the meaning of Article 2(1) of the Sixth Directive, nor, consequently, a taxable transaction thereunder. The fact that such operations are carried out by the member of the consortium which manages it is irrelevant in that respect." (EDM C-77/01)
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- Consortium member performing more than its share and being entitled to payment (for consideration)
"[89] On the other hand, where the performance of more of the operations than the share thereof fixed by the said contract for a consortium member involves payment by the other members against the operations exceeding that share, those operations constitute a supply of goods or services ‘effected for consideration’ within the meaning of Article 2(1) of the Sixth Directive.
[90] In that case, under Article 11A(1)(a) of the Sixth Directive, the taxable amount is the sum received by the consortium member concerned as payment for the part of the operations which exceeds its share as laid down in the consortium contract." (EDM C-77/01)
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Third-party consideration
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- Insurer reimbursing the final consumer means insurer has provided third party consideration
"[41] As the Advocate General observed in points 44 and 45 of his opinion, the payments made at the point of purchase of the medicinal products must be regarded as consideration provided by a third party within the meaning of Article 73 of the VAT Directive when those third parties, namely insured persons, requested reimbursement by the private health insurance companies and the latter obtained, in accordance with the national law, the discount owed to them by the pharmaceutical company. Therefore, having regard to the facts at issue in the main proceedings, the private health insurance companies must be regarded as being the final consumer of a supply made by a pharmaceutical company, which is a taxable person for the purposes of VAT, such that the amount payable to the tax authority may not exceed that paid by the final consumer (see, to that effect, the judgment of 24 October 1996, Elida Gibbs, C‑317/94, EU:C:1996:400, paragraph 24)." (Boehringer C-462/16)
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