7.3.2009   

EN

Official Journal of the European Union

C 55/17

Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 December 2008 — EMI Group Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-581/08)

(2009/C 55/28)

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: EMI Group Ltd

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

(a)

How is the last sentence of Article 5.6 of the Sixth Directive (1) to be interpreted in the context of the circumstances of the present case?

(b)

In particular, what are the essential characteristics of a ‘sample’ within the meaning of the last sentence of Article 5.6 of the Sixth Directive?

(c)

Is a Member State permitted to limit the interpretation of ‘sample’ in the last sentence of Article 5.6 of the Sixth Directive to-

(i)

an industrial sample in a form not ordinarily available for sale to the public given to an actual or potential customer of the business (until 1993),

(ii)

only one, or only the first of a number of samples given by the same person to the same recipient where those samples are identical or do not differ in any material respect from each other (from 1993)?

(d)

Is a Member State permitted to limit the interpretation of ‘gifts of small value’ in the last sentence of Article 5.6 of the Sixth Directive in such a way as to exclude-

(i)

a gift of goods forming part of a series or succession of gifts made to the same person from time to time (to October 2003),

(ii)

any business gifts made to the same person in any 12-month period where the total cost exceeds £50 (October 2003 onwards)?

(e)

If the answer to question (c)(ii) above or any part of question (d) above is ‘yes’, where a taxable person gives a similar or identical gift of recorded music to two or more different individuals because of their personal qualities in being able to influence the level of exposure the artist in question receives, is the Member Stale permitted to treat those items as given to the same person solely because those individuals are employed by the same person?

(f)

Would the answers to questions (a) to (e) above be affected by the recipient being, or being employed by, a fully taxable person, who would be (or would have been) able to deduct any input tax payable on the provision of the goods consisting of the sample?

(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).