VAT: Application of reduced rate to photography

The CJEU declares that for the photographs to benefit from the reduced rate provided for art objects, it is sufficient to comply with the requirements set forth in the directive, without among them being that of their artistic character.

A company applies the reduced rate to the delivery of portraits and wedding photography; type that questions the Administration and considers that the general should be applied.

The Administration justifies its liquidation that the photographs do not have an original character, nor a creative intention, so that they cannot be classified as photographs taken by an artist. The entity alleges that for the application of the reduced rate, it is sufficient that the author of the photographs, before he himself or his rightful owners deliver them, has controlled their development and printing and that they have signed and numbered them within the limit of thirty copies .

In the event that this matter is raised by the Conseil d’État, it raises several questions, which the CJEU synthesizes in two:

1. What requirements must the photographs meet to be considered objects of art that can benefit from the reduced rate of tax according to Dir 2006/112 / EC ?.

Starting for its analysis of the terms, context and purpose pursued by the regulations (CJEU 18-1-17, Case Sjelle Autogenbrug C-471/15 and CJEU 16-11-17, Case Kozuba Premium Selection C-308/16), the Court understands that for the purpose of applying the reduced rate to photographs, the only thing that it asks for to be considered as objects of art is that they be taken by the artist, revealed and printed by the author or under his control, signed and numbered with a limit of thirty copies in total, regardless of the formats and media.

The term artist used in the standard has in this case the same scope as the author, without the use of that term can be derived that the photograph taken, to benefit from the reduced type, must also have an artistic character.

The interpretation proposed by the Administration introduces a subjective element that may result in the same object being treated differently, depending on whether it considers that it has an artistic character or not, even when the goods (photographs) have similar properties and They respond to the same needs of the consumer, thus violating the principle of fiscal neutrality.

Based on the foregoing, the Court concludes that for photographs to apply the reduced rate, they must only comply with the provisions of Dir 2006/112 / EC annex IX.A.7.

2. If it is contrary to the tax regulations, a national regulation that limits the application of the reduced tax rate only to photographs of an artistic nature.

At this point the Court recalls that reduced rates are an exception, which allows Member States to apply to specific and specific aspects of one of the categories of operations listed in Dir 2006/112 / EC annex III (CJEU 6-5- 10, Commission / France case C-94/09; CJEU 27-2-14, Pro Med Logistik and Pongratz case C-454/12 and C-455/12; CJEU 11-9-14, K, case C-219 / 13).

The application of this exception requires objective, clear and precise criteria to designate photographs that have an artistic character, and that allow them to be identified as such. Requirements that, although we find in Dir 2006/112 / CE annex IX.A.7, not in the national regulations. The latter is limited to establishing an abstract definition of these photographs, based on vague and subjective criteria linked to the author’s manifest creative intention and the existence of an interest for the general public that must submit these photographs, a situation that involves the violation of the principle of fiscal neutrality.

Therefore, to the extent that the artistic character is subject to an assessment of the national tax administration and that this is not exercised by objective, clear and precise criteria, the national regulations do not conform to Dir 2006/112 / EC.