© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
H1. General points on exemptions
GENERAL ​
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- Supply both exempt and zero-rated: zero-rating prevails
"[37] In the course of the hearing in your Lordships' House a question was raised as to item 4 of Group 6 in Schedule 9 to VATA 1994, which provides for the exemption (subject to certain conditions) of "the supply of any goods or services (other than examination services) which are closely related to a supply of a description falling within item 1 (the principal supply) [that is, education]." This raises the possibility that the written materials (if they had constituted a separate supply at all) might be both zero-rated and exempt. In such a case zero-rating trumps exemption, because of the wording of section 30(1) of VATA 1994: see the judgment of Millett LJ in Commissioners of Customs & Excise v Wellington Private Hospital Ltd [1997] STC 445, 449. But Mr Sherry (for the College) disavowed any reliance on item 4 of Group 6 and in the circumstances it is unnecessary to go into the complications of EC Commission v United Kingdom [1988] ECR 817 as explained by Millett LJ in the Wellington case." (College of Estate Management v. HMRC [2005] UKHL 62)
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Activities upstream from those provided by the ultimate service provider ​
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- Exemption should not be denied to sub-contracted services
"[71] In those circumstances, transactions crediting contributions to such accounts are essential to the management of a special investment fund.
[72] The principle of fiscal neutrality supports that conclusion: if such services were to be made subject to VAT when provided by a third party, that would give pension funds which have decided to record themselves the contributions made by pension customers an advantage over those which have decided to make use of a third party for that purpose, even though subcontracting such services could provide advantages in terms of efficiency to pension funds and thus to their customers (see, to that effect, GfBk, paragraph 31)." (ATP PensionService A/S C-464/12)
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- Medical care exemption applies to subcontracted laboratory tests
"[37] The Commission’s argument that it follows from the case-law concerning exemptions that activities carried out upstream from those provided by the ultimate service provider are not exempt (Case 107/84 Commission v Germany [1985] ECR 2655, paragraph 20; Case C‑240/99 Skandia [2001] ECR I‑1951, paragraphs 40 and 41; Case C‑235/00 CSC Financial Services [2001] ECR I‑10237, paragraphs 39 and 40; and Case C‑472/03 Arthur Andersen [2005] ECR I‑1719, paragraph 39), so that only medical tests carried out by laboratories on behalf of patients in the context of a direct contractual relationship with those patients comes within the scope of Article 13A(1)(b) of the Sixth Directive, must also be rejected, as that case-law relates to the interpretation of other exemptions, the wording and objectives of which are different from those pursued by that provision (see, to that effect, Case 107/84 Commission v Germany, paragraph 13)." (LUP C-106/05)
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- Closely related exemption applies to subcontracted transport of samples
"[28] In the present case, the patient is indifferent as to whether the laboratory which takes the sample also carries out the analysis, or subcontracts it to another laboratory but remains responsible to him for the analysis, or, because of the nature of the analysis at issue, is obliged to send the sample to a specialised laboratory. The obligation, in the last case, to send the sample to a specialised laboratory arises from the need to ensure for the patient that the analysis is as reliable as possible.
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[30] In those circumstances, the taking of the sample and the transmission of the sample to a specialised laboratory constitute services which are closely related to the analysis, so that they must be treated in the same way as the analysis for fiscal purposes and, accordingly, must not be subject to VAT." (Commission v. France C-76/99)
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- Education exemption does not apply to supply of a teacher to another educational establishment
"[21] However, as stated in paragraph 7 of this judgment, according to the terms of the placement contracts at issue in the main proceedings, it was for the host establishment to define the duties of the teacher concerned, having regard to the duration of the placement and the role assigned to that teacher at Horizon College. In addition, the host establishment was required to insure the teacher for the period of his or her placement.
[22] Accordingly, the making available of a teacher to the host establishment in such circumstances cannot be regarded, of itself, as an activity capable of being covered by the term ‘education’, within the meaning of Article 13A(1)(i) of the Sixth Directive. As the Greek and Netherlands Governments and the Commission essentially contend, the contract concluded between Horizon College, the host establishment and the teacher concerned aims, at most, simply to facilitate the provision of education by the host establishment." (Horizon College C-434/05)
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- Management of fund may be broken down (Article 135(1)(g))
"[63] Secondly, the wording of Article 13B(d)(6) of the Sixth Directive does not in principle preclude the management of special investment funds from being broken down into a number of separate services which may then come within the meaning of the term ‘management of special investment funds’ as used in that provision, and may benefit from the exemption under it, even where they are provided by a third-party manager (see Abbey National, paragraph 67, and GfBk, paragraph 28)." (ATP PensionService A/S C-464/12)
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Breaking down exempt service into a number of elements​
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MEMBER STATE POWERS/DISCRETIONS ​
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Powers to define elements of an exemption​
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- Examples
"(c) the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned;" (Article 132)
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"(g) the management of special investment funds as defined by Member States;" (Article 135)​
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"(2) The following shall be excluded from the exemption provided for in point (l) of paragraph 1:
(a) the provision of accommodation, as defined in the laws of the Member States, in the hotel sector or in sectors with a similar function, including the provision of accommodation in holiday camps or on sites developed for use as camping sites;..." (Article 135)​
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See below on Article 131 and 133.
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See H2. Exemptions subject to supplier conditions
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- Term to be defined must be Member State's starting point
"[41] At the outset it must be observed that the task of defining the meaning of the words ‘special investment funds’ does not in any way permit the Member States to select certain funds located on their territory and grant them exemption and exclude other funds from that exemption. It follows from paragraph 21 of this judgment that the terms ‘special investment funds’ must be the starting point for the discretion conferred on the Member States." (JP Morgan C-363/05)
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- Must not prejudice objectives pursued by the Directive or general principles
"[42] The power to define the meaning of ‘special investment funds’ must also be exercised consistently with the objectives pursued by the Sixth Directive and with the principle of fiscal neutrality inherent in the common system of VAT (see, to that effect, JP Morgan Fleming, paragraphs 22 and 43, and Wheels, paragraph 18)." (ATP PensionService A/S C-464/12)
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"[21] In such cases it is for each Member State to define the concepts in question in its own domestic law (see to that effect, Joined Cases C‑443/04 and C‑444/04 Solleveld and van den Hout-van Eijsbergen [2006] ECR I-3617, paragraph 29), subject to the terms of the exemption laid down by the Community legislature.
[22] Moreover, it is clear from the case-law of the Court concerning VAT that, when the Member States come to define certain terms of an exemption, they may not prejudice the objectives pursued by the Sixth Directive or the general principles underlying it, in particular the principle of fiscal neutrality (see, to that effect, Gemeente Emmen, paragraph 25; and Case C‑246/04 Turn- und Sportunion Waldburg [2006] ECR I‑589, paragraph 31)." (JP Morgan C-363/05)
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"[25] Lastly, whilst it is settled case-law that the exemptions provided for in Article 13 of the Sixth Directive have their own independent meaning in Community law (see Case C-453/93 Bulthuis-Griffioen [1995] ECR I-2341, paragraph 18) and, consequently, the Member States may not alter their content, in particular in laying down conditions of application, that cannot be so where the Council has specifically conferred the task of defining certain terms of an exemption on the Member States, provided always that they comply with the objective pursued by Article 13B(h) of the Sixth Directive, which seeks to exempt from tax only supplies of land which has not been built on and is not intended to support a building." (Emmen C-468/93)
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- Exclusions must be justified in light of objective and fiscal neutrality
"[51] Thus, according to the statements put before the court, the management of ITCs falls within the objective of the Sixth Directive and ITCs constitute investment funds comparable to AUTs and OEICs which fall within the definition of ‘special investment funds’. In those circumstances, the exclusion of ITCs from the exemption provided for by Article 13B(d)(6) does not appear justified in the light of the objective of that provision and the principle of fiscal neutrality." (JP Morgan C-363/05)
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- Power to define not to be used to select some, but not others within scope of definition
"[41] The power to define thereby accorded to the Member States is, however, limited by the prohibition on undermining the very terms of the exemption that are employed by the EU legislature (see, to that effect, JP Morgan Fleming, paragraph 21, and Wheels, paragraph 17). A Member State cannot in particular, without negating the very terms ‘special investment funds’, select from among special investment funds those which are eligible for the exemption and those which are not. Article 13B(d)(6) of the Sixth Directive thus grants a Member State only the power to identify, through its domestic law, the funds which meet the definition of ‘special investment funds’ (see, to that effect, JP Morgan Fleming, paragraphs 41 to 43, and Wheels, paragraph 17)." (ATP PensionService A/S C-464/12)
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"[41] 41 At the outset it must be observed that the task of defining the meaning of the words ‘special investment funds’ does not in any way permit the Member States to select certain funds located on their territory and grant them exemption and exclude other funds from that exemption. It follows from paragraph 21 of this judgment that the terms ‘special investment funds’ must be the starting point for the discretion conferred on the Member States." (JP Morgan C-363/05)
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- Selecting some and not others would negate the significance of the term to be defined
"[42] The interpretation according to which it is for the Member States to select the investment funds which are eligible for the exemption and exclude others would negate the significance of the terms ‘special investment funds’ in Article 13B(d)(6) whose objective is to prevent discrepancies in the application of VAT to such funds." (JP Morgan C-363/05)
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- Does not authorise breach of fiscal neutrality
"[27] In that regard, it must be pointed out that the exemptions provided for by Article 13(B) are to be applied in accordance with the principle of fiscal neutrality inherent in the common system of VAT (see, to that effect, Case C-45/95 Commission v Italy [1997] ECR I-3605, paragraph 15). That requirement also applies when the Member States exercise their power under Article 13(B)(f) to lay down the conditions and limitations of the exemption. In according that power to the Member States, the Community legislature did not authorise them to undermine the principle of fiscal neutrality which underlies the Sixth Directive." (Fischer C-283/95)
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- Power to define special investment fund did not authorise distinctions according to mode of operation
"It is not apparent from either the wording or the context of Article 13B(d)(6) of the Sixth Directive that it was the intention of the Community legislature to authorise Member States, when they define the terms of the exemption, to make a distinction according to the mode of operation used by special investment funds." ​(JP Morgan C-363/05)
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- Member State permitted to define required medical qualifications and limit exemption to care within scope of expertise
"[30] That discretion covers not only the power to define the qualifications required to carry out the said professions, but also the power to define the specific medical-care activities which are covered by such professions. In fact, since the various qualifications acquired by the service providers do not necessarily prepare them to provide all types of care, a Member State is entitled to take the view, in the exercise of its discretion, that the definition of paramedical professions would be incomplete if it were limited to imposing general requirements as to the qualifications of providers, without specifying the care in respect of which they are qualified in the context of those professions.
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[34] Similarly, it is correct, as the Netherlands Government submits, that the correct and straightforward application of the exemption from VAT laid down in Article 13A(1)(c) of the Sixth Directive is ensured where, as in Case C‑443/04 in respect of physiotherapy services, the said exemption is granted only to providers with the professional qualifications specified in the national legislation on the paramedical professions and only in connection with the specific medical-care activities in respect of which those qualifications were acquired, as those activities are defined in the said legislation." (Solleveld C-443/04)
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- Power to define medical professions authorises certain professions to be excluded
"[33] Thus, contrary to the submission of the Commission of the European Communities, it must be accepted that the Member States’ discretion in defining the paramedical professions authorises them not to consider as such and, therefore, to exclude from the exemption from VAT laid down by Article 13A(1)(c) of the Sixth Directive a particular profession such as that of psychotherapist in Case C‑444/04, even if certain aspects of that profession are governed by specific rules under national law." (Solleveld C-443/04)
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- Exclusion must be justified
"[37] In this respect, concerning, first, the objective pursued by Article 13A(1)(c) of the Sixth Directive, it should be noted that the condition laid down by that provision, that medical care must be provided in the exercise of the paramedical professions as defined by the Member State concerned, is to ensure that the exemption applies only to medical care provided by practitioners with the required professional qualifications (Kügler, paragraph 27). Consequently, not all medical care falls within the scope of such an exemption, the latter concerning only that of sufficient quality having regard to the professional training of the providers.
[38] It follows that the exclusion of a particular profession or a specific medical-care activity from the definition of the paramedical professions adopted by the national legislation for the purpose of the exemption laid down by Article 13A(1)(c) of the Sixth Directive must be capable of justification on objective grounds based on the professional qualifications of the care providers and, therefore, by considerations relating to the quality of the services provided." (Solleveld C-443/04)
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Power to impose conditions/limits​
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- Examples
"(i) betting, lotteries and other forms of gambling, subject to the conditions and limitations laid down by each Member State;" (Article 135)
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"(2)...Member States may apply further exclusions to the scope of the exemption referred to in point (l) of paragraph 1." (Article 135)
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See below on Article 131 and 133.
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See H2. Exemptions subject to supplier conditions
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- Power to impose additional conditions may not be used to reduce distortion of competition required by directive
"[38] National legislation such as that at issue in the main proceedings does not comply with those limits on the power conferred by Article 133(d) of Directive 2006/112. That legislation is not limited to preventing distortions of competition stemming from the conditions under which, in accordance with the national legislation implementing that directive, the exemption is to be granted, but results in the difference in the conditions of competition stemming from the very existence of the exemption in Article 132(1)(m) of Directive 2006/112 being called in question. The exclusion from that exemption is made on the basis of the status of the recipient of the supply of the service in question even though that status does not alter the substance of the supply, namely, the grant of access to the golf course in order to play golf." (Bridport and West Dorset Golf Club Limited C-495/12)
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- Power to impose limits/conditions may not be used to distinguish lawful and unlawful transactions
"[28] As pointed out in paragraph 21 of this judgment, it is clear from the judgment in Lange that the principle of fiscal neutrality precludes a generalised distinction from being drawn in the levying of VAT between unlawful and lawful transactions. It follows that Member States cannot reserve the exemption solely to lawful games of chance." (Fischer C-283/95)
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- Cannot impose condition/limit based on identity of supplier
[28] Since the identity of the operator of a game of chance is not relevant where it falls to be determined whether the unlawful organisation of that game must be considered to be in competition with the lawful organisation of the same game, it must a fortiori be so where it falls to be determined whether two games of chance or two gaming machines operated lawfully must be considered to be in competition with one another.
[29] It follows that, in exercising their powers under Article 13B(f) of the Sixth Directive, that is to say, the power to determine the conditions and limitations subject to which the operation of games of chance and gaming machines is to be exempted from the VAT provided for by that provision, the Member States cannot validly make that exemption dependent upon the identity of the operator of such games and machines.
[30] In the light of those considerations, the answer to the first question referred in Case C-453/02 must be that Article 13B(f) of the Sixth Directive precludes national legislation which provides that the operation of all games of chance and gaming machines is exempt from VAT where it is carried out in licensed public casinos, while the operation of the same activity by traders other than those running casinos does not enjoy that exemption." (Linneweber C-453/02)
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References to 'certain services' ​
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- 'certain services' cannot be used to exclude certain groups of recipients (or, logically, supplier)
"[39] The possible restrictions on the benefit of the exemptions provided for by Article 13A of the Sixth Directive may be imposed only in the context of the application of paragraph 2 of that provision (see Hoffmann, paragraph 39). Thus, when a Member State accords an exemption for certain services closely linked to sport or physical education supplied by non-profit-making organisations, it may not make that exemption subject to conditions other than those laid down in Article 13A(2) of the Sixth Directive (see Case C‑124/96 Commission v Spain [1998] ECR I‑2501, paragraph 18). Since that provision does not lay down restrictions as regards recipients of the services in question, the Member States have no power to exclude a certain group of recipients of those services from the benefit of the exemption in question." (Canterbury Hockey Club C-253/07)
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- 'certain services' cannot be used to impose conditions related to price
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"[18] Moreover, there is nothing in that provision to the effect that a Member State,when granting an exemption for a certain supply of services closely linked to sportor physical education provided by non-profit-making bodies, may make thatexemption subject to any conditions other than those laid down in Article 13(A)(2).
[19] It follows that the limitation of the exemption for supplies of services closely linkedto sport or physical education to private sports bodies or establishments of a socialnature whose membership fees do not exceed a certain amount is contrary to Article 13(A)(1)(m) of the Sixth Directive." (Commission v. Spain C-124/96)
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CONDITIONS FOR CORRECT APPLICATION (ARTICLE 131)​
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Conditions for the correct and straightforward application/prevention of abuse
"The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse." (Article 131)
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- Not to be used to narrow the subject-matter of the exemption
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"[11] It should be observed in that regard that the conditions which may be laid downpursuant to Article 13(A)(1) of the Sixth Directive to do not in any way affect thedefinition of the subject-matter of the exemptions envisaged by that provision (Case8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, paragraph 32).
[12] Those conditions are intended to ensure the correct and straightforward applicationof the exemptions and refer to measures intended to prevent any possible evasion,avoidance or abuse (Becker, cited above, paragraphs 33 and 34)." (Commission v. Spain C-124/96 - re price condition)
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"[24] As the Court has already held, although the introductory sentence of Article 13A(1) of the Sixth Directive states that Member States are to lay down the conditions for exemptions in order to ensure the correct and straightforward application of the exemptions and to prevent any possible evasion, avoidance or abuse, those conditions cannot affect the definition of the subject-matter of the exemptions envisaged (Case C‑287/00 Commission v Germany [2002] ECR I‑5811, paragraph 50)." (Kingcrest Associates Ltd C-498/03)
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"[26] First, it should be observed that, according to settled case-law, although the introductory sentence of Article 13(A)(1) of the Sixth Directive states that Member States are to lay down the conditions for exemptions in order to ensure the correct and straightforward application of the exemptions and to prevent any possible evasion, avoidance or abuse, those conditions cannot affect the definition of the subject-matter of the exemptions envisaged (see, in particular, Case C-124/96 Commission v Spain [1998] ECR I-2501, paragraphs 11 and 12). From that point of view, the subjection to, or exemption from, VAT of a specific transaction cannot depend on its classification in national law." (Commission v. France C-76/99)
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- Cannot be used to impose a condition that would automatically rule out early stage activities
"[40] In consequence, it would be for the referring court, to the extent necessary, to assess whether, in situations where activities should, from their commencement, have been recognised as ‘charitable’ for the purposes of Article 13A(1)(g) of the Sixth Directive, in accordance with the case‑law set out in paragraph 31 above, the obligation to take account only of the preceding calendar year has as a consequence that, as regards the first calendar year – or even the first two calendar years – of those activities, recognition that the service provider concerned is ‘charitable’ for the purposes of that provision is automatically and inevitably ruled out.
[41] In so far as the obligation to take account only of the preceding calendar year were to have such an effect, it could not be justified on the basis of the introductory words of Article 13A(1) of the Sixth Directive." (Zimmermann C-174/11)
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- Not to be used to apply conditions included for some exemptions but deliberately excluded
"[29] Accordingly, the term ‘additional income’ within the meaning of Article 134(b) of Directive 2006/112 cannot be construed in such a way as to lead to a restriction of the scope of the exemption in Article 132(1)(m) of that directive on the basis of the status of the recipients of the supply in question as members or non-members, a criterion that was deliberately excluded when the exemption was defined." ​(Bridport and West Dorset Golf Club Limited C-495/12)
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OPTIONAL ADDITIONAL CONDITIONS (ARTICLE 133)​
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Optional additional conditions
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"Member States may make the granting to bodies other than those governed by public law of each exemption provided for in points (b), (g), (h), (i), (l), (m) and (n) of Article 132(1) subject in each individual case to one or more of the following conditions:
(a) the bodies in question must not systematically aim to make a profit, and any surpluses nevertheless arising must not be distributed, but must be assigned to the continuance or improvement of the services supplied;
(b) those bodies must be managed and administered on an essentially voluntary basis by persons who have no direct or indirect interest, either themselves or through intermediaries, in the results of the activities concerned;
(c) those bodies must charge prices which are approved by the public authorities or which do not exceed such approved prices or, in respect of those services not subject to approval, prices lower than those charged for similar services by commercial enterprises subject to VAT;
(d) the exemptions must not be likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT.
Member States which, pursuant to Annex E of Directive 77/388/EEC, on 1 January 1989 applied VAT to the transactions referred to in Article 132(1)(m) and (n) may also apply the conditions provided for in point (d) of the first paragraph of this Article when the said supply of goods or services by bodies governed by public law is granted exemption." (Article 133)
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- Cannot be used to alter the scope of the exemption
"[35] None the less, the above power conferred on the Member States – the scope of which falls to be determined in the context of the conditions set out in Article 133(a) to (c) of Directive 2006/112 – does not extend to the adoption of general measures such as the measure at issue in the main proceedings limiting the scope of those exemptions. According to the case-law of the Court on the corresponding provisions of the Sixth Directive, a Member State may not, by making the exemption in Article 132(1)(m) of that directive subject to one or more of the conditions laid down in Article 133 of the directive, alter the scope of that exemption (see, to that effect, Case C‑124/96 Commission v Spain [1998] ECR I‑2501, paragraph 21)." (Bridport and West Dorset Golf Club Limited C-495/12)
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- Cannot be used to exclude certain categories of recipient
"[27] However, the Court has held, regarding the provision that preceded Articles 133 and 134 of Directive 2006/112, namely Article 13A(2) of the Sixth Directive, that since that provision does not lay down restrictions as regards the recipients of the services in question, the Member States have no power to exclude a certain group of recipients of those services from the benefit of the exemption in question (Canterbury Hockey Club and Canterbury Ladies Hockey Club, paragraph 39)." (Bridport and West Dorset Golf Club Limited C-495/12)
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(a) Bodies not aiming to make profit​
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- Cannot selectively apply the 'not for profit' condition only to some candidates for exemption
"[56] However, there is nothing in the information placed before the Court to suggest that, through the condition at issue in the main proceedings, the Federal Republic of Germany has availed itself of that option. On the contrary, it appears that, for the purposes of the exemption provided for under Article 13A(1)(g) of the Sixth Directive, that condition contemplates precisely the recognition of profit-making commercial bodies as ‘charitable’.
[57] Moreover, applying the rules of interpretation set out in paragraph 22 above (see, inter alia, Case C‑473/08 Eulitz [2010] ECR I‑907, paragraph 42 and the case‑law cited), the Court has held, in relation to the concept of ‘organisations recognised as charitable by the Member State concerned’ as referred to in Article 13A(1)(g) of the Sixth Directive, that that concept is in principle sufficiently broad to encompass natural persons and private profit-making entities (see Case C‑216/97 Gregg [1999] ECR I‑4947, paragraph 17; Hoffmann, paragraph 24; Kingscrest Associates and Montecello, paragraphs 35 and 47; and Case C‑492/08 Commission v France [2010] ECR I‑5471, paragraphs 36 and 37).
[58] Accordingly, national legislation may not, in implementing the exemption provided for under Article 13A(1)(g) of the Sixth Directive, lay down materially different conditions for profit-making entities, on the one hand, and non-profit making legal persons falling under Paragraph 4(18) of the UStG, on the other."
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- Not systematically aiming to make profit refers to not providing financial advantages to members (can aim to generate surplus)
"[35] Consequently, the answer to be given to the third question must be that Article 13A(1)(m) of the Sixth Directive is to be interpreted as meaning that an organisation may be categorised as non-profit-making even if it systematically seeks to achieve surpluses which it then uses for the purposes of the provision of its services. The first part of the optional condition set out in the first indent of Article 13A(2)(a) of the Sixth Directive is to be interpreted in the same way." (Kennemer Golf C-174/00)
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(b) Administered on voluntary basis by persons with no interest​
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(c) Price controls​
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- Cannot be used to alter the scope of the exemption
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"[20] Finally, the Spanish Government argues that the fixing of a ceiling on the amount of fees in respect of the exemption of the supply of services envisaged in Article13(A)(1)(m) falls within the concept of prices approved by the public authorities within the meaning of the third indent of Article 13(A)(2)(a), and is therefore justified by virtue of that latter provision.
[21] On that point, it is sufficient to note that that provision does not imply that aMember State, by making the exemption envisaged in Article 13(A)(1)(m) subject to one or more conditions laid down in paragraph 2(a) of that provision, may alter the scope of the latter." (Commission v. Spain C-124/96)
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- Prices fixed must take account of the nature of the activity
"[22] Moreover, as the Commission has rightly pointed out, Article 13(A)(2)(a) of theSixth Directive provides that Member States may make the grant of the exemptions envisaged subject to compliance with one or more of the conditions mentioned by that provision. The latter therefore excludes a restriction of the exemption of supplies of services closely linked to sport or physical education to private sports bodies or establishments of a social nature which charge membership fees not exceeding a certain amount without taking into account the nature and particular circumstances of each sporting activity." (Commission v. Spain C-124/96)
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(d) Not likely to cause distortion of competition with commercial enterprises​
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- Power to impose additional conditions may not be used to reduce distortion of competition required by directive
"[38] National legislation such as that at issue in the main proceedings does not comply with those limits on the power conferred by Article 133(d) of Directive 2006/112. That legislation is not limited to preventing distortions of competition stemming from the conditions under which, in accordance with the national legislation implementing that directive, the exemption is to be granted, but results in the difference in the conditions of competition stemming from the very existence of the exemption in Article 132(1)(m) of Directive 2006/112 being called in question. The exclusion from that exemption is made on the basis of the status of the recipient of the supply of the service in question even though that status does not alter the substance of the supply, namely, the grant of access to the golf course in order to play golf." (Bridport and West Dorset Golf Club Limited C-495/12)
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