May 10, 2021
CJEU issues decision on VAT concept regarding ”restaurant and catering services” within a catering area
On 22 April 2021, the Court of Justice of the European Union (CJEU or Court) issued a decision in the Katowicach case (C-703/19) regarding the interpretation of the concept ”restaurant and catering services” for value-added tax (VAT) purposes in the context of a catering area (e.g., a food court in a shopping mall).
According to the Court, a ”catering service” (which may, in principle, be subject to a higher VAT rate than the sale of food and drinks in supermarkets or takeaway outlets) is characterized by a cluster of features and acts, of which the provision of food is only one component and in which services largely predominate. However, when the supply of food is accompanied only by the provision of rudimentary facilities, namely simple consumption counters, without any possibility of sitting down, allowing only a limited number of customers to consume on the premises and in the open air, which requires only negligible human intervention, those elements constitute only minimal support services which are not such as to alter the predominant character of the main service, namely that of a supply of goods (which may, in principle, be subject to a lower VAT rate than catering and restaurant services).
In this respect, among other things, the Court takes account of factors such as the presence of waiters, the existence of a service (which consists e.g., in the transmission of orders to the kitchen, the subsequent presentation of the dishes and their service to the customers at the table), the existence of enclosed rooms at an appropriate temperature that are especially dedicated to the consumption of food, and the presence of cloakrooms and toilets and the provision of crockery, furniture and cutlery, among other items.
According to the Court, if the consumer chooses not to benefit from the material and human resources made available by the taxable person, it must be concluded that no support services accompany the supply of food or drinks.
Thus, the CJEU has again emphasized that the precise factual circumstances must always be assessed in their entirety, case by case, in order to verify that the VAT rate applied actually corresponds to the economic reality.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Tax Consultants, Brussels