Referral to ECJ from UK with regard to the taxation of FOBTs ("Rank Group")

Reference for a preliminary ruling from The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 26 May 2010 - Commissioners for Her Majesty's Revenue and Customs v The Rank Group PLC

(Case C-260/10)

Language of the case: English

Referring court

The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom)

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: The Rank Group PLC

Questions referred

Where a Member State in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive1 subjected certain types of machines used for gambling ("Part III gaming machines") to VAT, while retaining exemption for other such machines (which included fixed odds betting terminals, "FOBTs"), and where it is contended that in so doing the Member State infringed the principle of fiscal neutrality: is it

(i) determinative, or (ii) relevant, when comparing Part III gaming machines and FOBTs that

(a) FOBTs offered activities that were "betting" under domestic law (or activities that the relevant regulatory authority, for the purposes of exercising its regulatory powers, was prepared to treat as "betting" under domestic law)

and

(b) Part III gaming machines offered activities subject to a different classification under domestic law, namely "gaming" and that gaming and betting were subject to different regulatory regimes under that Member State's law relating to the control and regulation of gambling? If so, what are the differences between the regulatory regimes in question to which the national court should have regard?

In determining whether the principle of fiscal neutrality requires the same tax treatment of the types of machine referred to in Question 1 (FOBTs and Part III gaming machines), what level of abstraction should be adopted by the national court in determining whether the products are similar? In particular, to what extent is it relevant to take into account the following matters:

a. similarities and differences in the permitted maximum stakes and prizes as between FOBTs and Part III gaming machines;

b. that FOBTs could be played only on certain types of premises licensed for betting, which were different, and subject to regulatory constraints that were different from those applicable to, premises licensed for gaming (although FOBTs and up to two Part III gaming machines could be played alongside each other in premises licensed for betting);

c. that the chances of winning the prize on FOBTs were directly related to the published fixed odds, whereas the chances of winning on Part III gaming machines could in some cases be varied by a device that ensured a particular percentage return to the operator and player over time;

d. similarities and differences in the formats available on FOBTs and Part III gaming machines;

e. similarities and differences as between FOBTs and Part III gaming machines in the interaction which could occur between the player and the machine;

f. whether or not the matters referred to above were either known to the generality of players of the machines or regarded by them as relevant or important;

g. whether the difference in VAT treatment is justified by any of the above?

In a situation where a Member State, in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive, exempted gambling from VAT but subjected a defined class of machines used for gambling to VAT: -

a) is there in principle a defence of due diligence available to a Member Sate to a claim that the principle of fiscal neutrality has been infringed by that Member Sate; and

b) if the answer to (a) is "yes", what factors are relevant in determining whether or not the Member Sate is entitled to rely on that defence?
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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